Done deal: Marco Island couple settles lawsuit with city over building inspections

Homeowner Tim Dayton, who sued the city with his wife, reads a statement explaining their position. Building trades workers and company owners packed the city council chambers Monday afternoon, concerned about the future of the city's building department. Lance Shearer/Eagle Correspondent

Photo by LANCE SHEARER

Homeowner Tim Dayton, who sued the city with his wife, reads a statement explaining their position. Building trades workers and company owners packed the city council chambers Monday afternoon, concerned about the future of the city's building department. Lance Shearer/Eagle Correspondent

Homeowner Regina Dayton, who sued the city with her husband, reads a statement explaining their position. Building trades workers and company owners packed the city council chambers Monday afternoon, concerned about the future of the city's building department. Lance Shearer/Eagle Correspondent

Photo by LANCE SHEARER

Homeowner Regina Dayton, who sued the city with her husband, reads a statement explaining their position. Building trades workers and company owners packed the city council chambers Monday afternoon, concerned about the future of the city's building department. Lance Shearer/Eagle Correspondent

— Tim and Regina Dayton and the City of Marco Island are both happy to see a mutually satisfactory conclusion to their long-standing dispute over the city building department’s inspection of the couple’s home as it was being constructed.

It’s a squabble that found the Daytons seeking redress through a Collier County Circuit Court lawsuit and multiple administrative complaints filed with the Florida Department of Building and Professional Regulation against the city and its inspectors.

The legal wrangling was ended recently by a pair of settlement agreements, dated Sept. 21 that have the city paying the Dayton’s a total of $150,000. In exchange, the couple has agreed to drop existing and further DBPR and legal claims related to the construction of their custom-built, 3,300 square-foot Spinnaker Drive home.

“As far as we’re concerned, this is behind us,” said Regina Dayton of the quest she and her husband began in 2007, when they filed the first of their multiple DBPR complaints against Marco and its building officials.

“The real good news is all this stuff has cleaned out,” said Ken Honecker, chairman of Marco Island City Council. “With our new city manager (Roger Hernstadt, who assumes the post this week), it’s a good starting point.”

The Daytons will receive $135,000 for dropping the claims and another $15,000 for ending an August Circuit Court lawsuit that alleges the city refused to comply with a request to provide copies of public records. The Daytons were joined in the lawsuit by fellow Marco resident Toni Jessen, who requested records pertaining to inspection of repairs done at her home. Legal fees associated with the lawsuit were paid by the couple.

At the heart of the matter is the Dayton’s contention that applicable building codes and permit requirements were not enforced or proper inspections done while their home was being built by now defunct Kimball Hill Homes between 2003 and 2006. The Daytons charged that Marco building inspectors lacked the proper state licenses during that time period.

Electrical inspector Bruce Yakola, plumbing inspector Gary Konicek, structural inspector Mike Smithem and Bob Mahar, the city’s chief building official are the building department employees included in the DBPR complaints.

Konicek and Smithem are still with the building department.

Yakola retired and Mahar resigned in late June in the wake of the DBPR accepting settlement agreements from Smithem, Konicek and Mahar at a hearing earlier that month. The threesome faced fines and costs ranging from $1,075 to $3,697, according to the settlement agreements. However, the DBPR rejected the settlement agreement proposed by Yakola, instead calling for stiffer penalties than those contained in the proposal.

The men faced complaints for alleged licensing violations between 2000 and 2004, before coming into compliance with state regulations.

Regina Dayton has said she and her husband have spent about $300,000 to fix deficiencies in their home that were not caught during the inspection process.

Where legal fees are concerned, she would only say that she and her husband “have spent a considerable amount of money” in that area, along with repairs. “The settlement that we received from the city, we are by all means grateful for it, but it doesn’t come close to making us whole and we never expected that it would,” Regina Dayton added.

The time and expense involved in the fight were daunting, said Regina Dayton, but paled in comparison to the ideals at stake.

“It was always, to us, a matter a principal that citizens with honest concerns can approach their government and be treated honestly and fairly and we have finally achieved that,” she said. “The longer this went on and our characters were maligned, it became more important to stay the course.”

Honecker said he’s glad that the city can now move on.

“Both of those issues, I felt, had been dragging on for years,” said Honecker. “This was not my decision. Council decided to do this. I can’t answer for council, but in my mind, I wanted to bring these matters to a close. They’d been going on for years and we’d been paying our attorney for years.”

Honecker said the city has taken the corrective actions necessary to prevent similar issues from arising with the building department.

When asked how the situation arose and continued without being addressed before the Dayton’s complaints, Honecker cited the fact that it is the city manager and not City Council that oversees Marco’s day to day operations. “Clearly there was a disconnect in the management structure over the years regarding this particular department, in particular,” he said.

While the dust has settled on the court and DBPR cases, the building department’s operations remain under a microscope as the office of city attorney Burt Saunders is in the midst of an investigation of department’s operations that began in the fall.

The investigation is being handled by Daphne Bercher, a paralegal at the Gray/Robinson law firm’s Naples office, where Saunders is an attorney.

Bercher said last week that she’s not sure when the results will be made public and that the timing will be determined by Hernstadt.

Regina Dayton praised council for examining the department’s operations.

“We are very thankful that the investigation that has been authorized by city council, which should prevent any other citizen of this community from going through this,” she said. “The action by council benefitted the entire community here on Marco Island.”

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Comments » 4

ajm3s writes:

"15,000 for ending an August Circuit Court lawsuit that alleges the city refused to comply with a request to provide copies of public records."

Responsibility?

harrisbill239#279036 writes:

Al, you are right. Someone within the city needs to man up and take responsibility for refusing to obey the laws governing public records requests. If our city employees and management have committed these violations of state law in these 2 cases (Daytons, and Toni Jessen), how many other violations have they committed or allowed? And how can our city government and city council allow this to drag on for so long? Inexcusable!!

Konfuzius writes:

The $ 150 000 are tax-payers $$$! What are the consequences of our city council?

26yearsonmarco writes:

(This comment was removed by the site staff.)

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