
    Phillip WARNER, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 85-1919.
    District Court of Appeal of Florida, Third District.
    July 1, 1986.
    Fine Jacobson Schwartz Nash Block & England and Dale A. Heckerling, Miami, Bill Ullman, for appellant.
    Simon, Schindler, Hurst & Sandberg and Thomas M. Pflaum, Miami, for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The law of this case was established in Warner v. City of Miami, 458 So.2d 338 (Fla. 3d DCA 1984). We reject the City’s argument that Warner is not entitled to a rehabilitation building permit because the trial court was without jurisdiction to require that such a permit be issued and the owner did not exhaust his administrative remedies by appealing to the zoning board. We, accordingly, reverse the order under review and remand to the trial court with directions to conduct an evidentiary hearing and determine on the merits whether Warner is entitled to the building permit.

Reversed and remanded with directions.

BASKIN and JORGENSON, JJ., concur.

FERGUSON, Judge

(concurring).

The circuit court’s exercise of its discretionary equity jurisdiction was not barred by plaintiff Warner’s failure to exhaust administrative remedies because (1) the failure-to-exhaust defense does not go to subject matter jurisdiction but to court policy, see City of Miramar v. DCA Homes, Inc., 385 So.2d 152 (Fla. 4th DCA 1980); Jones v. Braxton, 379 So.2d 115 (Fla. 1st DCA 1979), and (2) the record clearly shows that the administrative remedy could not have provided adequate or timely relief. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); School Board of Leon County v. Mitchell, 346 So.2d 562, 568 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 132 (Fla.1978).  