Some Florida homeowners having tough time trying to obtain money from state recovery fund

Naples Daily News–September 7, 2008

By ELYSA BATISTA

NAPLES — Some Southwest Florida residents, bilked out of thousands of dollars by unscrupulous contractors, are learning the hard way that Florida’s Construction Recovery fund isn’t the fix-all to end-all as they were led to believe.

Instead, residents across the state are finding out that getting money from the state fund — created in 1993 to return cash to homeowners stiffed by dishonest contractors — is limited to a qualified few.

That’s the case with Golden Gate Estates resident Nancy Colina.

Nancy and her husband, Jose Luis Colina, bought their property in the Estates nearly 20 years ago, but were only able to get the money together to build a home in 2003.

A decision, Colina said, they have come to regret.

“We set our sights on the wrong builder,” she said.

The couple received the keys in 2004, after the house had passed the county’s final inspection and a certificate of occupancy was issued.

Roughly a month after the couple moved into the house, Colina said, her husband returned home to find that water had seeped into the guest bedroom from what seemed to have been a leak.

Unfortunately for the Colinas, the couple came to learn later that although the house passed final inspection, part of the roof wasn’t finished.

Colina said that after a year and a half of going back and forth with the contractor, the couple decided to replace the unfinished portion of the roof. In addition, the Colinas had to hire a mold remediation contractor to remove a mold infestation that had taken root as a result of the unfinished roof.

The Colinas filed a complaint against Designers Home Group with Florida’s Department of Business and Professional Regulation, also known as the DBPR, and followed up with a civil suit against the construction company.

In December, the couple received a judgment in their favor, but according to Colina, since the contractor is nowhere to be found, she decided to file a Florida’s Construction Recovery fund application with the Construction Industry Licensing Board in May to recoup her money.

At first glance, it appeared that they did everything right, Colina said.

But in spite of a court decision in their favor against Designers Home Group, Colina recently learned that she doesn’t qualify for a refund for the $35,000 she’s out.

“It is very frustrating,” Colina said. “A mistake was done in my house and now nobody wants to take responsibility.”

According to the state agency’s spokeswoman, Alexis Antonacci, the Colinas didn’t qualify because the case was a non-compensable civil matter, or workmanship issue, as opposed to a compensable violation of Florida law.

“The Colinas stated that their house passed final inspection, they moved into the house, and after discovered problems with the roof and shutters,” Antonacci said in a written statement. “It is alleged that the contractor failed to correct problems with workmanship and/or to honor warranties for those problems discovered after the inspection and occupancy.

“There cannot be abandonment after the house has passed final inspection and a certificate of occupancy is issued.”

According to the Antonacci, on average the state received 354 Recovery Fund applications yearly between 2004 and 2007.

“We saw an increase from 362 to 570 from 2006 to 2007,” Antonacci said in the statement. “And we have received 373 for the first six months of 2008, for a projected total of 746.”

Of those application claims, Antonacci said, an average of 59.7 percent were accepted.

The Recovery Fund has paid $13,537,395.98 from 1995 to 2006, she said, and as of July 30, the fund has $1.75 million.

Overall, state officials stress that the fund is a last resort and that not everyone is qualified to make a claim.

Some of the factors that would disqualify applicants include the claimant not being a homeowner or if the contract and violation happened before July 1, 1993.

In addition, if the contractor didn’t hold a valid and current license at the time of the violation — for example, they were unlicensed — residents wouldn’t qualify for the refund.

However, the state does have an outreach program to help residents navigate through the process.

“We answer questions by telephone regarding the application process,” Antonacci said. “Additionally, the department provides a claim form and cover letter to all people awarded restitution in a final order.

“Finally, we refer people to The (Florida) Bar or Legal Aid for free or reduced cost assistance if they need legal representation.’’

In addition, The Florida Bar and local counties often have nonprofit programs for the elderly and other groups.

It’s a resource that residents need to use, said Michael Ossorio, Collier County’s supervisor of the Contractor Licensing Office.

“If they have a problem, they should come talk to us (before sending in their application),” said Ossorio, adding that residents are more than welcome to come knock on his department’s doors if they have questions or concerns about the program.

Residents who want to seek compensation from the Florida Homeowners’ Construction Recovery Fund must have:

— Entered into a signed written contract with a licensed contractor for work on your home;

— Received a final judgment or order of restitution against the contractor, financially responsible officer or business organization; and

— Suffered a financial loss due to the contractor violating Florida Statute 489.129(1): g) Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer (see statute for particulars); j) Abandoning a construction project for more than 90 days; or k) Signing a false statement claiming that the work is bonded, that all payments to subcontractors have been made, or claiming to have provided certain worker’s compensation and insurance protection.

— Florida laws provide specific definitions for determining whether a contractor’s actions may constitute one of these violations. See 489.129(1) (g),(j),(k), Florida Statues.

For more information visit www.myflorida.com/dbpr

Here are some numbers and Web sites consumers can use to find out if they qualify for a refund.

• Collier County’s Building Review and Permitting Department: To file a complaint with the county’s department or to learn how to avoid unlicensed contractors residents can visit the Community Development & Environmental Services offices, (239) 252-2400, go online to www.colliergov.net or call (239) 252-2431 or 252-2431.

• Florida Department of Business Professional Regulation: To file a complaint with the Department of Business Professional Regulation or look up a contractor’s license visit www.myflorida.com/dbpr or call (850) 847-1395.

• Lee County’s Community Development Department: To file a complaint with Lee’s code enforcement department or to learn how to avoid unlicensed contractors visit www.lee-county.com/dcd/ or call (239) 533-5895.