
    The CITY OF KEY WEST, a Florida municipality, and Paul Cates, Deputy Building Inspector for the City of Key West, Appellants, v. The STATE of Florida ex rel. E.E.S. ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 84-87.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellants.
    Kirk, Pinkerton, Savary, Carr & Strode and L. Norman Vaughan-Birch and George Franjóla, Sarasota, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974), cert. denied, 311 So.2d 670 (Fla.1975).

SCHWARTZ, Chief Judge

(specially concurring).

I concur in affirmance because the city tendered no disputed or justiciable issue of fact and the trial court correctly concluded, in applying the charter and code provisions in question, that the relator-appellee was entitled to the issuance of its building permit as a matter of law. I think it therefore unnecessary and, beyond that, highly inadvisable to rely upon the Bal Harbour Village decision cited by the court. Bal Harb-our Village perpetuates an archaic rule of pleading, applicable, for some unknown reason, only to mandamus proceedings, which I believe should not be permitted to survive in this supposedly enlightened age.  