Letter To The Editor: Dream home becomes nightmare situation

As many of you are now more aware of the issues surrounding the construction of our home on Marco Island thanks to the articles we appreciated being printed, allow me to attempt to both clarify and expand on certain points without legal review speaking directly and truthfully to our fellow residents. Due to length limitations, please accept the following format:

1. Action against the City Of Marco Island is not being taken because our builder went bankrupt (we continue with legal options available against KHH/Qualifiers) rather because of the failure of the city building department to either perform or perform correctly inspections we were mandated to pay for and hence have been damaged by because of the violations of building codes and resulting construction defects (the Franklin report specifically documents these yet more have been identified since written).

2. Certificate of occupancy being issued has enabled an inept builder that did not provide the requisite expertise or supervision to divert the problems acknowledged back to the city. The Department Of Business And Professional Regulation seems to concur as it has closed complaints against KHH/Qualifiers while there is an ongoing investigation of the city building official that we hope will be adjudicated favorably for us but that remains to be seen.

3. Do know in November 2007 the city was advised of Florida statutes that enabled the building official to revoke the CO. Our intent was not to be removed from our home but instead encourage KHH which was then an operating and viable company to correct problems or possibly have this authority invoked. No action was taken by the city other than us being told information was forwarded to counsel.

4. The Franklin report was initially commissioned to enable us to pursue Florida legal precedent for litigation against a builder that did have a binding arbitration clause in contract.

5. Government councilors and management have all been contacted since July 2008 to draft a settlement instead of forcing us to expend the money and time on a lawsuit as well as impose further burdens on court dockets but a complaint was filed in November 2009 yet we are still open to dialog to amicably and fairly resolve this for all involved.

Please note comments below and feel free to question the accuracy of what I share with you with the individuals mentioned. These are not offered as personal criticisms or to begin he said she said but as accounts of what took place as honestly remembered:

- Mr. Forcht promised to visit and then get action started to solve problem but he did not.

- Mr. Gibson was very direct and told me to sue if city guilty of malfeasance.

- Mr. Kiester initially said he would look into it. He had the courtesy to call back and tell me the city attorney had advised caution due to litigation at which point I explained there was no lawsuit but a consumer complaint with the DBPR but he did not pursue further.

- Mr. Popoff first told me he knew we were not litigious people and would look into it but he never got back to me. When he became council chair, I called again and he said he believed the city bore culpability and would now possibly be in a position with his new authority to speak with the city manager and find a resolution but did not hear from him again.

- Mr. Recker appeared empathetic and as he has often mentioned at council meetings expressed the belief that settlement was preferable to litigation; we would like to believe he is still of that opinion about our case and is sharing that sentiment with fellow councilors.

- Mr. Trotter said he understood the frustrations of building a home and would inquire and get back to me but I did not hear from him again.

- Mr. Waldack read the report prior to walking our home and said heads were going to roll; he did to his credit have Mr. Olmsted come to our house.

- Mr. Olmsted’s first statement after reading report and walking home was that I should realize he was not employed by the city when this occurred or he would have liked to have thought he would have prevented this but assured me he would implement changes and processes that would keep this from happening to others; all of you reading this can draw your own conclusions from what he said. Now also know at one point Mr. Olmsted offered settlement and told me to have my attorney contact the city attorney which resulted in my attorney being told there was nothing to talk about.

- Mr. Thompson on several occasions told me he does not believe sovereign immunity applies here and since the complaint is based on city records it will be interesting to read the response to our complaint especially if it involves the state.

6. I have been heartened by the calls and e-mails received from other residents explaining similar experiences with the building department as well as some offers to testify on our behalf in court should it have to come to that. Still we need other fellow citizens to stand with us for in doing so the city cannot simply ignore this case and spend our tax dollars in litigation when an insurance policy is in place to cover such errors and omissions and even more importantly in the future perhaps residents will not have to go to such lengths to have positive action taken on their behalf.

Obviously we know we are blessed to live here in Marco Island and came here with the intent of positively contributing to our new home as we had attempted to do in Ohio. Please believe we do realize that caring for elderly parents, health concerns, etc., are much more significant to deal with as we share those concerns as well. Tim and I are also retired U.S. Naval Reserve Officers; we simply want justice from the very system we were honored to defend. We would be very grateful for any of your efforts to assist us.

Regina L. Dayton

Marco Island

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Comments » 2

bigdog1970 writes:

Mrs. Dayton
This is an interesting letter that you wrote about your situation. Even though I have commented in the past about your situation, the comments were based on your interviews and that wriiten by the Naples Daily News.
You talk so much about the Franklin report,but the report remains a mystery. All that ever is printed is about the A/C unit placement and the fact that it is too low (compared to your neighbors) even though the FEMA flood level was different when your house was permitted, and the placement of your pool equipment. What else is so terribly wrong that your CO shouldn't have been issued,and why should the city get involved if the builder, Kimball Hill Homes, and oyu have a problem with the way they constructed your house.
Publish the report!!
Now, I do feel very bad for you, especially with your regards to city hall.
1.Fortch never follows up on anything
2.Gibson is not smart enough to use the word malfeasance
3.Kiester will not and cannot do anything useful hence the last name.
4.Recker is empathetic, but has no right to even suggest a settlement with the city, unless he means that he has no faith in its employees.
5.Trotter, I'll get back to him! HAHA
6.Waldack, what an idiot to suggest "heads will roll" is he the same guy that put laptops in city vehicles and no air cards so that they'll work!

Now lets talk about HOWDY DOODY aka Steve Olmstead. He raelly stated that he was not an employee of the city at the time? Is that so you don't sue him either?
He should not be employed by the city now!!
He couldn't prevent anything from happening to you because he has no knowledge of the building industry at all, none whats so ever. The only reason he knows where the buildings department is, is because he has to walk buy it in the morning to get to his office.
Steve couldn't implement changes or prevent this from happening to anyone else. He cann't even prevent himself from opening his mouth and showing eveyone how incompitent he really is of being able to do his job.
How dare this little weasel make an offer of settlement.

AGAIN, IS HE ADMITTING WRONG DOINGS ON THE PART OF THE CITY AND IT'S EMPLOYEES?

fondulus writes:

Although the City of Marco Island has maintained, along with its building official, that DBPR will do nothing on the complaint filed against the Building Official, word has come down that DBPR has found probable cause that the Building Official has committed violations and will be disciplined via an Administrative Complaint being filed against him by the State of Florida.
As this info is factored into the situation, it becomes apparent that the Dayton's have been wronged and were correct in their assertions and allegations. Due to their perseverance and high principles, it looks likely that they and others who have been or might be affected by the COMI Building Inspection Department will have a better chance of receiving the protections mentioned by Florida Statute 468.601.
Way to go, Dayton's! Thank you.

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