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Grill charged with felony, suspended from office

By Staff | Feb 24, 2010

The State Attorney’s Office filed a felony charge Wednesday afternoon against Cape Coral Councilmember Eric Grill with additional charges possibly pending.
Grill was arrested in December on charges of grand theft and fraud in connection to complaints filed by Lisa Johnson and David Malmberg. Each has alleged that Grill bilked them out of thousands of dollars for construction work that was never completed.
According to spokeswoman Samantha Syoen, the State Attorney’s Office found evidence to support the filing of a charge of making or furnishing a false statement. The charge is tied to an alleged violation of Florida Statute 713.35, in which Grill is alleged to have provided a false document to Malmberg months after the initial contract involving a construction project.
The charge is a third-degree felony punishable by up to five years in prison.
However, the State Attorney’s Office has been unable to establish a criminal theft or fraud charge from the evidence that was submitted by the Lee County Sheriff’s Office. Syoen said the evidence initially submitted was not sufficient to legally charge criminal theft or fraud.
“Numerous rulings by appeals courts of this State have determined that the failure to perform as required under a contract does not automatically create a criminal violation, even if money was accepted and not returned,” she wrote in a prepared statement.
“The courts have found that the law requires proof of some misrepresentation or fraud at the time the money is obtained or other evidence of an intent to steal, before a crime can be proven,” she said.
The State Attorney’s Office notified Gov. Charlie Crist after filing the one charge against Grill.
“Because it’s a felony charge against a politician,” Syoen said. “This was not our first contact with the governor’s office.”
Issuing an executive order, Crist suspended Grill from his city council seat. The order states that Grill is “prohibited from performing any official act, duty, or function of public office; from receiving any pay or allowance; and from being entitled to any of the emolumnets or privileges of public office.”
The suspension remains in effect at the pleasure of the governor’s office. Typically, if an official is found innocent or otherwise adjudicated without a finding of guilt, the suspension is lifted and the person can return to office.
Grill declined to comment Wednesday, and he directed all questions to his attorney, Lee Hollander. Hollander was unavailable for comment Wednesday evening.
According to Syoen, officials are still reviewing evidence in regards to the allegations of fraud or swindle obtain property $50,000 or more and larceny $2,000 or more but less than $100,000. The fraud charge is a first-degree felony punishable by up to 30 years in prison and the larceny charge is a second-degree felony punishable by up to 15 years.
“Charges remain under investigation,” she said. “Filing decisions are pending on two charges.”
The State Attorney’s Office has no time limit on reviewing the charges, but under the speedy trial rule, the state has 175 days from the date of arrest to file charges. Syoen said that based on that rule, the state has until June 8 to file any additional charges against Grill.
Johnston did not return a voice message seeking comment Wednesday evening.
The State Attorney’s Office also notified the Florida Department of Business and Professional Regulation of the charge filed against Grill, who is a licensed contractor.
Alexis Lambert, spokeswoman for the Florida Department of Business and Professional Regulation, said Wednesday that she could not confirm or deny whether a complaint had been opened against Grill. Complaints are not public record until 10 days after probable cause has been determined.
“When we’re notified of a possible violation, or the law has been broken, we’ll open a complaint internally and open an investigation,” Lambert said.
If a complaint is opened and an investigation initiated, the department will contact witnesses, gather statements and contracts, and review financial records, among other things. If probable cause is determined, officials will contact the Construction Industry Licensing Board.
“(The board) has the authority to take action against contractors’ licenses if they feel the law has been broken,” Lambert said.
Possible penalties that contractors face could include a fine, probation, suspension or revocation of their license. She added that contractors could face one penalty or a combination of penalties.
Florida Statute 713.35 states that “any person, firm, or corporation who knowingly and intentionally makes or furnishes to another person, firm, or corporation an affidavit, a waiver or release of lien, or other document, whether or not under oath, containing false information about the payment status of subcontractors, sub-subcontractors, or suppliers in connection with the improvement of real property in this state, knowing that the one to whom it was furnished might rely on it, and the one to whom it was furnished will part with draw payments or final payment relying on the truth of such statement as an inducement to do so commits a felony.”
Grill’s arraignment is March 1 at 9 a.m. at the Lee County Justice Center in Fort Myers.