Office of Statewide Prosecution

Report of the Twelfth Statewide Grand Jury

Advisory Opinion
January 18, 1995
IN THE SUPREME COURT OF THE STATE OF FLORIDA
July Term, 1994
CASE NO. 83,964
IN RE: TWELFTH STATEWIDE GRAND JURY
SWGJ CASE NO: 1A
OSWP CASE NO: 93-502-WFB
(This document has been re-formatted for the Internet)

ADVISORY OPINION

In September of 1994, the Twelfth Statewide Grand Jury embarked upon an investigation of the activities of a major Florida based homebuilding company. Our inquiry focused on whether or not there was criminal conduct on the part of the owner and his corporation in his dealings with home buyers from Pasco, Pinellas, 'Citrus, Hernando and Charlotte counties. In some instances, home buyers gave binder checks to the company for the construction of a home which was never started, nor was the binder ever returned. Other complaints included that home construction was started but not completed by the company, and still other homes were completed but had liens placed against them due to the company's failure to pay subcontractors for the work performed.

During the course of this complex and lengthy investigation, we heard from numerous witnesses, including many home buyers and most of the former employees ranging from field supervisors to executive personnel. In addition, a financial analysis of the company' s bank records was conducted with the assistance of the Office of the Comptroller in an effort to determine what use was made of the home buyers' money.

After careful deliberation of the evidence, we determined that there was no probable cause to indict the owner or his company for any offenses over which this Grand Jury has jurisdiction, and therefore we issued a NO TRUE BILL.

We are disappointed by the fact that the Statewide Prosecutor, and therefore this Grand Jury, pursuant to Florida Statutes 16.56 and 905.34, has no jurisdiction to investigate and prosecute offenses of a general intent nature such as ..."misapplication of construction funds" under Florida Statute 713.345, which requires no specific intent to defraud. See, State v. Nuckolls, 606 So.2d 1205 (FL.5th DCA 1992). It is apparent from our brief exposure to this statute that it is exactly the kind of criminal charge the Legislature intended for a contractor to answer to in situations such as the one we have been investigating. We must, however, stop short of examining the evidence in light of this statute and rendering our opinion on the existence of criminal violations pursuant to it. We also have been advised that there may be other criminal statutes which apply here (perjury) but which are not short of examining the evidence in light of this statute and rendering our opinion on the existence of criminal violations pursuant to it. We also have been advised that there may be other criminal multi-circuit in nature. We therefore recommend that the Statewide Prosecutor continue this investigation in the appropriate judicial circuits, under the authority of the elected State Attorney.

Finally, there is no doubt that the home buyers have ample cause to sue the owner and the company under civil law to recover their lost deposits or for damages for breach of contract, and many of them have filed such lawsuits. Such suits would not be necessary if construction companies were required by the State to be bonded or insured against failure to perform. This Grand Jury therefore recommends that the Legislature consider the enactment of such a requirement or other form of protection for persons who contract for the improvement of real property in this State.

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WILLIAM R. CASE, FOREPERSON
TWELFTH STATEWIDE GRAND JURY

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DATE

This Advisory Opinion was filed in Court this ________ day of __________1995, and it is hereby sealed until further order of the Court.

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RAY E. ULMER, PRESIDING JUDGE
TWELFTH STATEWIDE GRAND JURY

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DEPUTY CLERK
TWELFTH STATEWIDE GRAND JURY