Can you hear me now? All right. Um, we have just one hearing on the agenda today and let me just All right. U my name is Monica Schmucker. I'll be the special magistrate for today's hearing. Um I do
ask that if anybody does have a cell phone that you please um silence that now. Do you have the agenda there with you or it's not pulling up? I'm sorry. >> Absolutely. Yes. Go ahead. No, that's fine.
>> Thank you. Okay, good. All right. So, we have lean foreclosure case of White Sand Property of Fort Myers Beach LLC. Authorization to foreclose lean FMB case number
C140394. Uh, property address 80 Avenue E, Fort Myers Beach, Florida. Um, who do we have here for the town? >> Chloe Barryman, assistant town attorney. >> Thank you.
>> Nancy Stuperitch, town attorney. >> Thank you. Respondent. >> Good morning. Alex Brockmire and Steve Ramon. >> Thank you. >> Good morning. >> Good morning. All right. Um, sorry, I'm just pulling up. There are
quite a bit of the um agenda items which I did review. So, um, all right. So, this will be a quasi judicial hearing. Uh, which means similar to a case in court. As a reminder, the rules of evidence do not apply, but fundamental due process will
apply. Um after the hearing I will have issue an order with findings of facts, conclusions of law and any award uh any relief awarded. Um I will do so either today or within 15 days of
today's hearing. Um anybody who's going to be providing testimony, I do ask that they stand at this time for the oath. >> Do you swear affirm to tell the truth, the whole truth, and nothing but the truth? I do. >> Okay. All right. In town may proceed.
>> And your honor, before I begin, I have um printed out the exhibits um and I'd like to provide a copy >> the binder of exhibits that were put online. >> Yes. >> Sure. >> Um I'd like to provide a copy to you as well as the respondents. >> Sure.
>> Thank you. >> Have you reviewed these council? without going through it. I'm sure at one point we probably looked at most of what's in here between our circuit court case and this
>> we're fine to proceed. I'm not going to hold us up on that. >> Okay. >> Our link was tori prior to each of the other notices of hearing. >> Right. >> I do have one question though. We've had prior hearings. >> Yes.
>> And we've submitted exhibits with those hearings. Is that going to all be part of this collective case record or >> Well, for today's hearing, >> I mean, it's all like part of the same case, right? So, is it not building off that? >> If it's been submitted under case number
14, uh, C140394, then it'd be a part of the case record for that, but not a part of the case record of today's hearing unless you submit it today. >> Okay. Does that answer the question? >> It does. >> Okay. Um, do you have any objections to any of the exhibits? Okay. Thank you.
No. >> No. >> Thank you. >> Okay. You may proceed. >> Thank you, honor. Good morning. We're here today on the town's request for authorization to forlose a code enforcement lean on the property located at 80 Avenue E under code enforcement case number.
Is it on now? Okay, >> now it's on. Uh, code enforcement case number 14-0394. Uh, this code enforcement lean arises from a violation on the property that dates back to 2014. Uh, respondent's predecessor in title was found in violation of the town code in order to
bring the property into compliance within a set time frame, but failed to do so. As a result, a daily fine of $250 per day accrewed, and a lean for the fine was recorded against the subject property. By 2019, the property had a new owner, Mr. Orlandini, who's also respondent's predecessor in interest,
and the property remained in violation. Because the violation continued on the property, the special magistrate entered a code enforcement order certifying that a fine of $257,150 had occurred and continued to occur in the amount of $250 per day uh for each day the property remained out of
compliance. And this instrument was the code enforcement order imposing lean, which was recorded as lean against the subject property, and all other real and personal property owned by Mr. Orlandini and this was on March 27th, 2019 and it was recorded as the instrument number ending in 7137.
This orders attached as exhibit A to the notice of hearing and it's also exhibit 19 in the agenda materials. Uh and this is the instrument that we are seeking to foreclose today. Section 162.09 09 sub3 provides that the town attorney may obtain authorization
to foreclose after three months from the filing of any lean that remains unpaid. Here it has been more than three months since the lean was recorded on March 27th, 2019. And the town will present evidence that the amount of the lean remains unpaid and I had a PowerPoint presentation. I
don't know if that's okay. So the subject property again is 80 Avenue E. The property appraiser information on the screen shows that the property is owned by Whit Sand Properties of Fort Myers Beach with a mailing address of 415 Polarmo Circle.
The Sunbiz records for respondent list uh Mr. Steven Ramon as the respondent's registered agent and Jesse Schmid and Jodie Hannon as the authorized persons for the respondent. And copies of respondents sunbuzz records are also in the binder as exhibit 3B for 2020 and 3C
for 2025. And this is just in there to show that these were the authorized persons at all times relevant to the proceedings. >> I I have a quick question. Is the binder identical to the tabs that are in the Okay, thank you.
>> Uh as you know this hearing was rescheduled many times uh four times. So composite exhibit 2 contains the notices for uh those other hearings and the documentation that they were rescheduled and I included those just for the record. Um exhibit 3A is an affidavit of
notice and posting by T. Hoffman, a code enforcement officer for the town attesting that notice was properly provided to the respondent for the hearing that was most recently rescheduled. Um and that hearing was originally set to occur on December 5th, 2025. Composite exhibit one is the
respondent's request to continue the December 2025 hearing and the magistrate's resulting order in e-ervice showing that the respondent expressly waved further notice of the hearing. And it also shows that respondent received notice of today's hearing date because the order rescheduling the hearing was
served to the same emails uh from which respondents council requested the continuence. And then exhibit 3D is another affidavit of notice sworn and attested to by Thomas Yazo, the emergency services director and code enforcement officer, showing that although the respondent wave further notice requirements for
this hearing, the town still mailed a notice of hearing uh for today's hearing date with the lean we're seeking to forclose attached as well as a copy of the order of continuence and that that notice of hearing was mailed to the respondent. And all of this is being offered to show that proper notice of this hearing was provided and reflected
on those notices of hearings for each hearing date. And the exhibits in this hearing were posted on the town's website approximately one week before each uh hearing date for each hearing. The only exhibits that have been added since July 2025 are exhibits 1 through three relating to the history of
rescheduling this hearing and then exhibits 4, 52, and 53 which were listed on the exhibit list provided on July 2nd. but uh the completed documents hadn't yet been provided at that time that the hearing was rescheduled. Um therefore, the town has gone to great
lengths to ensure that the respondent has had more than adequate notice of this hearing and respondents have had the majority of the documents the town will be presenting for over six months. The lean edition in this case is the result of prolonged non-compliance. An order imposing lean was originally
entered on March 30th uh 2019 or 2016 during the ownership of one of respondents predecessors in interest and that order imposed a fine of $250 per day beginning on March 25th 2016 and continuing to acrew each day the violation on the property continued to
exist and this order was recorded April 12th 2016 as instrument number 201600000076125 and this is marked as exhibit 13 in the binder. Uh, and that's also represented by the first bullet point in the PowerPoint. Uh, next, a subsequent order certifying
was entered on March 22nd, 2019. Uh, this order found that the owner of the property at the time had not complied with the previous order and had not paid the fine, which at that point had accred to $257,150 and continued to acrue at $250 per day.
Ultimately, this order vacated the previous order imposing lean and certified that a fine in the amount of $257,150 had acred and continued to acrew at $250 per day for each day the property remained out of compliance. This order was recorded March 27th, 2019. Again, as
the instrument number ending in 7137 and again, this is the instrument the town seeks to foreclose today. That's exhibit 19. After that, the property still remained out of compliance. And on April 16th, 2024, an affidavit of compliance was issued in this case, finding that the
subject property had come into compliance on September 28th, 2022 due to Hurricane Ian and the subject property being demolished. And this affidavit of compliance is exhibit 45A in the binder make here.
And you can see on the face of that affidavit, it is attested to by Thomas Yazo, the code enforcement manager at the or time uh for the town. And then paragraph four of the affidavit of compliance uh states Tom states according to available records in
possession of the town of Fort Myers Beach, a desk inspection of the subject property was performed by a code enforcement officer on the 4th day of April 2024 and the subject property was found in compliance on the 28th day of September 2022 due to Hurricane Ian and the property being demoed. And then
skipping down to paragraph 6, uh Mr. Yazo testifies code enforcement case number C14-0394 will be closed upon payment of $594,650 lean in full. And this compliance date determines the
total amount of the fine. Um so pursuant to the order constituting the lean that we're seeking authorization to forclose, again $257,150 had already accured as of January 17th, 2019. This continued to occur at $250 per day until the property was brought
into compliance on September 28th, 2022 as indicated in exhibit 45A. And so between January 17th, 2019 and September 28th, 2022, this is an additional 1350 days. At $250 per day, this amounts to
an additional $337,500 uh that continue to acrew under the lean, which amounts to a grand total of $594,650 and that is the amount owed under the lean. This total is consistent with the
affidavit of compliance in this case um which again is exhibit 45A. The statutory prerequisites for foreclosure of a code enforcement lean are set forth in section 162.09 sub3 which provides after three months from the filing of any such lean which
remains unpaid, the code enforcement board may authorize the local governing body attorney to forclose on lean or to sue or recover money judgment for the amount of the lean plus accured interest. As indicated by the clerk stamp on the face of the lean marked as exhibit A, the lean the town seeks to forclose was
recorded in the Lee County public records more than three months ago. And the lean also remains unpaid, which again is evidenced by exhibit 45A. Um the affidavit of compliance confirming that a total of $594,650 is due under the lean. And then more
recently, we also have an affidavit of code enforcement manager which is exhibit 4. Um, and that is signed and attested to again by Thomas Yazo. And again, Mr. Y is not here today. But
the relevant portion of that um affidavit is paragraph 16 which states fines accured between March 25th, 2016 and September 20th, 2022 for the violation in the amount of $250 per day for $2378 days,
equaling a total of $594,500 plus $150 in administrative fees for a total amount of $594,600. $50 due under the lean in the instant code enforcement case. Paragraph 17 says the instant stat or the current status
of code enforcement case 14-0394 is lean recorded. And then the final paragraph paragraph 18 uh states that the instant code enforcement case will be closed upon payment in full of the $594,650 due under the lean in the instant case.
And you can see that this is sworn and attested to by Thomas Yazo, emergency services director for the town. And so what you've seen so far is evidence sufficient to demonstrate that it would be appropriate to authorize forclosure on the lean marked as exhibit 19 um because it's been three months
since the filing of the lean and the lean remains unpaid. Uh however in over the last couple of years the respondant has attempted to contest the fact uh that the lean remains unpaid by claiming the existence of some sort of agreement with the town and the town's position that is that no
such agreement exists. So, if the respondent respondent is planning again to claim that this lean has been satisfied or greatly reduced or that nothing is owed by virtue of some agreement, uh I'm prepared to present the remainder of the documents in this binder in chronological order alongside a timeline I prepared which is exhibit
six. Um based on these documents and presented as a summary of these documents which are numerous. Uh ultimately what these documents will show is that Whites Sand acquired the subject property with knowledge of the lean we're seeking to foreclose. From the time Whitand acquired the property, the town staff attempted to work with
respondent to settle the code enforcement issues on the property. Um however, the town couldn't settle the matter until the violation on the property causing this lean to continue acrewing uh had been brought into compliance and that never happened. And
so ultimately the respondent refused to correct the uh issues on the property and it remained out of compliance until it was demolished by hurricane Ian and the lanes and the fines under the lean continued acrewing up until that point. So I can either present these documents
to you now to further prove that the lean is ripe for um authorization to forclose because it remains unpaid. I would prefer to present them in response to any claim that respondents council raises. um just to be able to tailor my response and
save everybody a little bit of time. Uh so I would just ask that I reserve on my ability to do that um pending their claim of any sort of agreement. >> That that'd be that'd be fine in your reply. You absolutely can reply to
whatever their response is. >> Okay. So in that case, I just want to reiterate that what we're here for today is simple. We're requesting authorization to forclose the lean that's recorded as instrument number 201900000067137 in code enforcement case 14-0394 which again has been marked as exhibit
19. Again, it's clear on the face of the lean that it's been more than 3 months since this lean was recorded since it was recorded on March 27th, 2019. We are now in 2026. And it's also clear that the lean remains unpaid as evidenced by the affidavit of compliance marked as
exhibit 45A and the affidavit of code enforcement manager marked as exhibit 4. Um both of which show that the amount due under the lean is $564,650 and that this amount has not been paid. Accordingly, the evidence shows that the statutory prerequisites set forth in
section 162.09 CR9 sub3 have been met and the town respectfully requests that your honor enter an order authorizing the town attorney to foreclose the code enforcement lean mark is exhibit 19. Thank you your honor. >> Thank you response.
>> Good morning with Steve. What I'd like to do first is actually kind of recap how it was we got here. And I know your honors presided over all this, so you're very
familiar. But what we have is a situation where, as your honor may recall, the town initially sought to foreclose in this case
instrument number 20600 76125, which is the town's exhibit. Let's see here in this list 13. That was the first order imposing
lane. And as your honor is well aware, as we discussed at our last hearing, the town asked, your honor, to give it authorization to foreclose on that lane.
And on February 12th of 2024, in this case, you granted that permission and authorized the the town to foreclose on that instrument number, which just again towns exhibit 13. I'm going to shorthand
the instrument ending in 76125. Your honor's foreclosure authorization order is the town's exhibit 47. Now, as your honor will recall, and I can present it
everyone here. I'm going to mark it as respondents exhibit one. Show your copy. It's what you guys present at the original original hearing. >> Okay. Can I approach? So, as your honor will recall, at that
hearing and the town did not introduce any evidence whatsoever of an intent to in foreclose on the lean that we are now hear about today that they're seeking to foreclose on, which is the instrument number
20190067137. and your honor had entered an order on I believe it was February 12th, so almost a year ago um of last year where the your honor made clear at that
prior initial February 2024 hearing, the town was always focused on this 2016 instrument. That's exhibit B2 of our um exhibit one. The town's 13, the
instrument ending in 76125. And I can mark since we don't technically have everything continuing to acrew this as exhibit two. >> See the ordered?
Okay. Thank you, >> your honor. In that order made quite clear, you know, there was no clerical error. There was no ever introduction of this 2019 lean ending in 67137. Everything was about the 2016 instrument
number ending in 76125. and more importantly that the town never requested authorization to foreclose on the lean we're here about now, the one that ends in 67137,
which is again the um the town's exhibit 19. And the reason that's all important is because, as your honor has noted, the lean that the town initially sought to foreclose on, that they got the
authorization to foreclose on that instrument 76125, that that lean was vacated. So when they got that foreclosure authorization letter, that foreclosure
authorization letter order was a final order. Your honor's order makes clear it could be appealed. No one, the town didn't appeal that. So that foreclosure authorization order gave the parties finality on in this case as to what lean
could or could not be foreclosed upon. And so what we have then is the town elected a remedy. We had two different lanes. They elected to foreclose on the one bearing instrument number 2016 000076125,
not the one they're now trying to foreclose on. Now, I understand that 2016 instrument number was vacated, but that doesn't matter under Florida law. And I can provide everyone with a copy
of this case. It's a third district court of appeal decision. >> Approach your honor. We're going to be looking at page seven of the order. In there, it talks about election of remedies.
And in there, the the quote from this third district court of appeal decision from 2024, which is North Bay Green Investments LLC verse coldressed Raw Holdings LLC 388 Southern
3rd 266. It says a plainif is not guaranteed success in the choice of remedies only an opportunity to proceed under a theory which has been pled. Thus in Florida an election is binding and irrevocable even
under circumstances where the chosen remedy is improper or non-existent. So what we have here is a situation where the town elected its remedy. it should we want to foreclose on this
2016 code enforcement lean even though it had been vacated but the the third district has said and it you see it cites a number of authorities there all very recent that that doesn't matter that decision is binding on them in this case
even if the lean they asked you to authorize foreclosure on had been vacated but they're now stuck with that decision they've elected their remedy they don't get a second bite at the apple. So, the foreclosure request
is invalid. It should be denied. They're not authorized to foreclose on it because they've already elected that remedy and they're stuck and it's binding on them. It's irrevocable. And that's because that foreclosure authorization letter is a final or
sorry, foreclosure authorization order is a final order. And we know that because one of the cases, as your honor knows, we've been embroiled with the the town on a number of um circuit court litigation. One of the cases the town has taken to
citing quite frequently is a case called Kirby vers, city of Archer. Here's your curvy case, your honor. Approach. And when we go there, it says it talks about a code enforcement hearing board
and this sort of quasi judicial status that we are sitting in now and that we were sitting in back when the foreclosure authorization order was entered. And it says matters determined in an order which have become final without appeal are not subject to any sort of review and they're not also
subject to any sort of collateral attack. It's a resjudicata collateral estoppel issue and that's exactly the position the town has taken in these circuit court cases is that under Kirby your honor's prior orders including the
foreclosure authorization order acts as a resjudicata. It is a final order and so if it's final enough to have an effect of resjudicata or collateral estoppel so too is it final enough to constitute an election of remedies by
the town which again under the North Bay case makes clear then that the town is not authorized to foreclose on this lean because the this case is at a conclusion with that
final foreclosure authorization letter. Um, and so in that aspect, we would ask your honor to deny the foreclosure authorization hearing today. I I do have an affidavit from Mr.
Schmidt that I'm going to introduce. There is nothing in this affidavit that's different from what Mr. Schmidt testified at our prior hearing, but just for the sake of I guess, you know, having it for the court and developing the record, I'm going to it's in a
binder because it's kind of large. I'm going to introduce it. But other than that, that would be the extent of our presentation this morning. So, if I can approach I'm going to give them a copy as well. on the outside or the inside >> and consistent with what we argued to
your honor back and what was a January of last year. It's our contention that the contents of Mr. Schmidt's affidavit shows that this lean was resolved um by everyone through that
agreement between Mr. Orlandini, Mr. Schmidt, and the then town manager um Roger Hearnstead. One of the things though that I want to note is >> sorry to inter interrupt you for a second, but I just want to give uh
council the opportunity to review the exhibits and state whether there's any objection. >> Okay. >> Thank you. No, your honor. I have no objection. >> Okay. Thank you. You seeking to admit them? >> Yes, your honor. So, one of the things though that I want
to touch upon was, and this is even in the town's exhibit 23, I believe it's um 23A, there is a partial release in this case,
in code enforcement case 140394 that reflects a partial release accounting for the $50,000 that was paid towards these leans. That amount from what I've been able to ascertain has not been accounted for in
this total amount that the town is seeking authorization to foreclose upon. And so we need to have that accounted for. If you account for that lean amount and a reduction for the $50,000 that's been released, that would make the lean
um 5,000 or $544,650. And then there is the letter from Carl Beni which is in the affidavit we've all it's in the town's exhibits as well which is
essentially stating that as of November 18th 2020 there were no active code enforcement cases against whitan as it relates to 80 avenue e I think that's important Because regardless of whether you want to agree
with us or not that there was a settlement, we think that that letter shows that at a minimum at that time this property was in compliance with all the the code violations that were against it. Which means that if you take
the $250 a day and you run it from March 25th, 2016 to the date of that letter, November 18th, 2020, that's $1,699 days. At $250,
that's $424,750. And then if you again account for the reduction of 50,000 that gets you $374,750. So no matter what the outcome is of this settlement agreement, whether you agree
with it or not, the lean amount the town's seeking authorization to foreclose upon is incorrect. It should at least account for the $50,000 set off which would put it at
again $544,650. And if you agree with our position that Mr. Ben's letter shows that there was no code violations existing as of that time. Then when you take that math, run it at
six or $250 a day at $1,699 and you account for the $50,000 payment, the amount would be $374,750. And so with that we would um rest our presentation. Thank you. >> Can you direct me to the letter?
>> Huh? >> Can you direct me to the letter please? >> Is that is going to be your tab? Um E of the affidavit from Mr. Schmidt.
And you'll see there at the very bottom, sorry, I got to get to the microphone. The very bottom of the first page, it says there are no active code enforcement cases on this property. And it's with regard to 80 Avenue, which is the subject property.
>> Okay. Thank you. >> Yes, your honor. And your honor. >> Okay. >> Before I respond, if I could just have a few moments to review this affidavit representing Mr. Schmidt's testimony. Uh, this is the first time I'm seeing it. >> Sure. Do we want to take just a quick
break? >> Yes, your honor. 10 minutes. >> 10 minutes. Okay. Okay, we are back. Um, did council did you have the opportunity to review? >> Yes, your honor. >> Okay. All right, we may proceed.
>> Thank you, your honor. Is this on? Okay. So, first I want to address respondents theory. Uh respondents theory that because your honor previously authorized for closure of the lean recorded in 2016 that the town is now procluded from seeking
authorization to forclose the 2019 lean. Uh this argument fails for a number of reasons. Uh the most simple being that the prior order authorizing foreclosure addressed a completely different instrument be than the one before you today. Uh the case that they're citing uh North Bay deals with different causes
of action. Uh this case, this is not a different cause of action. This is an entirely different instrument. Uh we're requesting to have authorization to foreclose this particular instrument. Last time we're requesting authorization to foreclose a different instrument.
The lane before you today was not at the 2024 hearing. Uh it was not in the notice for the hearing. It wasn't included or introduced at that hearing. It didn't appear in the order. Uh that's because the instruments are different. The cause of action is different. Um the lean we're seeking to forclose today
reflects a distinct legal basis for foreclosure separate from the vacated 2016 lean and it's not barred by prior authorization. Chapter 162 explicitly ties the ability to obtain authorization to forclose uh to the recording date of the individual lean at issue. Under
section 162.09 Florida statutes, the foreclosure authorization turns on whether that particular recorded lean remains unpaid 3 months after its filing. The statutory trigger to be able to foreclose after 3 months from the filing of any such lean which remains
unpaid is particular to the lean which means that each lean ripens individually. The facts the town must establish for authorization to forclose the lean before you today are that the lean was filed on in this case March 27th, 2019 and that the lean remains unpaid three p
uh 3 months after March 27th, 2019. This is a completely different set of operative facts from the 2016 lean. Uh the elements in the statute attached to the particular lean. So prior authorization referencing a different instrument does not adjudicate whether those elements have been met for the
lean before you today. Uh I also want to note that the case that they site, North Bay, um deals with a completely different factual scenario. It doesn't deal with lean foreclosure.
Uh it doesn't deal with quasi judicial um code enforcement proceedings. Uh, more analogously, Florida's foreclosure cases clarify that race judicata does not bar subsequent or successive foreclosure action when they arise from different operative facts. Uh, the
Florida Supreme Court held that the doctrine of race judicata does not necessarily bar successive forclosure suits because a foreclosure predicated upon a subsequent and different default uh, presents a separate and distinct issue. And that's even if a prior foreclosure
action on the same instrument, the exact same instrument even, uh, was adjudicated on the merits. And I have a copy of that case that's Singleton B. Greyar Associates that I can provide to any everybody Okay.
uh Florida courts have emphasized that forclosure is an equitable remedy and race judicata should not be applied so strictly as to prevent the enforcement of valid leans to work in injustice and that's what that case uh that I just gave you represents. I have another case uh on the same proposition which is 2010
uh-3 SFR venture LLC v Garcia um which I can provide you in a moment as well as Hayes v reverse mortgage solutions incorporated um and then I have another case Bartum v US Bank uh
and in that case the court explained that if subsequent foreclosure actions were barred uh the mortgager would have no incentive to make future timely payments and clearly justice would not be served. Applying race dudicotta to bar authorization to forclose the correct lean would frustrate the statute's purpose an enforcement scheme
and it would produce the same kind of inequitable results uh as these cases represent. It's also important to consider the fact that in this hearing uh as well as previous foreclosure authorization proceedings, these are all quasi judicial administrative hearings under chapter 162 and the Florida Supreme
Court has warned that the principles of race judicata do not always neatly fit within the scope of the administrative proceedings and that race judicata is applied with great caution in administrative cases and the case that I have on that point is Thompson v. Department of Envir Environmental Regulation.
I'll give you that case as well. While you pull that, you mentioned uh Hayes and another case after that. I'm not sure if you have copies of that, but if not, could you provide the citations? >> Uh yes, your honor. I do have a copy of Hayes. I will give you that as well. Um
the other one was SR Venture LLC v Garcia and then Bart from the US Bank. >> I didn't get that. So just when you go back to the podium just so And so those cases again um were Bartram
v. US Bank of 2016 Florida Supreme Court case um for the proposition that if subsequent foreclosure actions were barred, the mortgager would have no incentive to make future timely payments and clearly justice would not be served. Um similarly on those points there's SFR
Venture LLC v Garcia Hayes V reverse mortgage Solutions Inc. and then I also provided Thompson v Department of Environmental Regulation uh for the proposition that principles of race judicata do not always neatly fit within the scope of administrative proceedings and that race judicata is applied with
great caution in administrative cases. Uh returning to Thompson in issuing this caution, the court recognized that the administrative setting often deals with fluid facts and shifting policies and notes that the finality of unappeal judgments of courts is ordinarily well understood in advance, whereas statutory
provisions often implicitly deny finality um or fail to make clear whether or administrative action should be considered binding. This warning is appropriate for our procedural posture here uh and the factual record because we're not relitigating a 2016 instrument. were seeking to foreclose a
later and operative lean and under these circumstances applying race judicata to bar consideration of the correct lean would elevate a clerical mistake over the intent and purpose of chapter 162. So for all these forgoing reasons in this case the prior authorization to
forclose the lean recorded in 2016 does not preclude our current request to foreclose the lean recorded in 2019. Again, this lean represents a new independent cause of action because it's based on a subsequent order certifying uh acred fines and replacing the earlier
lean. So, as to that argument, the town respectfully requests that your honor determine that the town's request is not barred and that your honor hear the town's request to foreclose uh this instrument on the merits and then
I'll just address the um claims that respondent made as to the rest of the yesterday. Can I have that? >> Thank you. Jason, if you could bring my PowerPoint back up.
I'm going to present some of this timeline, but I'm going to just focus on the parts that have to do with what the respondent raised. um in respondent claims that on December 9th, 2019,
um he went to town council to request that he be able to pay to settle a number of leans on the property. Um and the property being 80 Avenue E. And the minutes from that town
council me meeting reflect that that is not what happened. So the minutes from that meeting uh reflect that Jesse Schmid stated he was buying a house with lean issues and pledged to pay $50,000 toward the leans. Uh Joe Orlandini, resident, indicated that Mr. Schmid was
purchasing one of his homes. Uh and he explained the umbrella lean situation. Mr. Mr. Orlandini noted that selling the property would help remove some debt and Mr. Schmidt's request uh concerning satisfying part of the lean for the property and the umbrella was brought
up. The town manager indicated they could craft an agreement for them to proceed on that one particular property and the council members agreed with the action. And I think the video for that meeting really speaks louder than I can to it. So I'm going to
play that video. If I can. Um, can we click on that first one? The link should have automatically cued to when Jesse Schmid came up for public comment. Do we have sound?
But I will touch on it. While we're waiting, I'll just elaborate on what um this video is going to show. So, paragraph five of the respondents aid states, "On December 9th, 2019, I on behalf of White Sand and Mr. Dr. Orlandini approached the town of Fort
Myers Beach, Florida about resolving the leans and code enforcement case number CE 0167, CE 0394, and CE 17-0065 that encumbered the following properties as a result of code violations committed
at 80 Avenue E. And it lists several properties including 1710 to 1740 Eststerero Beach Boulevard, 1560 I Street, 80 Avenue E. Um, and then a couple of other legal descriptions. And he claims that at this meeting,
Whitand and Orlandi offered to pay the town $65,000 in exchange for the town agreeing to settle all the leans associated with 80 Avenue E uh and release the properties owned by Orlandini from the leans. It says they say that at this meeting the town authorized its manager to resolve the
leans. >> Okay. Just give it Are you going to be able to get the volume up on that? >> Is Is it working now, Jason? >> I mean, I'm willing to just to give him a minute if he needs a minute to pull up
the audio. >> Okay. I have it on my computer. My computer and use the mic. >> I don't have >> I have no objection if your honor wants to watch the video if you're going to
reserve anyway or after today's hearing. I I mean it's on YouTube. I I I've seen it. >> Okay. Uh do you do you want to take like a two-minute recess to figure that out or do you want to play your computer? >> I think your honor, I I was able to
bring it up on my computer and if with the microphone we would be able to hear um if council wants to observe as as the video plays. >> That I mean if if that works that would be fine. I don't know if anyone is
working on the audio over there. It's just a speaker issue. Or if not, that's however is best for you. I'm willing to give you guys two minutes or so to figure it out if you'd like. >> So, um I guess Alex, if I could invite
you just to kind of view it. >> I've seen >> You've seen it. Okay. So, your honor, then I'll just try to get the volume going on my computer and have it close to the microphone. And let me just go back to that spot.
Um, it began at six six something. >> And and your honor, I'm fine if they just want to profer what the video is going to say because the rules of evidence aren't adhered to. I I'm fine with just so we can move this along. >> Right. And I I appreciate that. I want
them to I mean present it however they need to. So either way, >> it it's coming, your honor. Just one second. My wife Jod and I moved down here about five months. Just say your name for the record. >> Jesse Schmidt >> here. Bring it up here. This might >> I moved down here about five months ago
>> and uh >> Okay, we're going to take it to that speaker. So, we just need to back it up a little bit. >> Okay. Wait, use the mouse. Sorry. This computer's been through a lot.
If everyone would please log their votes on the computer and the motion carries unanimously pushing unanimously. Okay, >> we have these little computer. Um, next item is local achievements and
oh no, I'm sorry, is public comment. >> Uh, and the first person to speak is Jesse >> Barely. >> I mean, I can hear that there's something going on, but I can't really necessarily >> No worries. I I also want to make sure the court reporter can hear it.
>> Take a few >> a few minutes. And >> I'm just going to give you guys a couple minutes to see if Tech It looks like Tech is working on it. I obviously don't want to hold it up for too long, but >> you could also put on the record what
>> what the uh link is and where and I can hear it here and we can proceed to >> how long is it? >> Okay. I mean >> well um the meeting itself is very long
>> right I know but I mean the portion of it if you have the time >> the beginning and end time stamps I can listen to it >> readily available can pull it up >> on mine I believe my speakers are a lot louder >> it's okay I
>> if you don't mind me >> I'll give you just a couple minutes to sort it out and then decide how you want to do it okay I I think your honor, it's it's our preference to go ahead and um have the video shown. >> Sure. >> If we can. >> If you can um if you want to work it out
with tech, too. >> I'll go ahead and try this. >> And oh, no, I'm sorry. Is public comment. Uh and the first person to speak is Jesse Schmid. >> Jesse, when you get up there, will you
tell us how to >> I know who it is. I can recognize the voice. guys. I see presentation. >> Madam Magistrate, do you have access to the internet? >> I do. And that's why I said if you can't get it pulled up, you can tell me. I
mean, you can put on the record the link and the start and stop time. I can listen to it and then at least what would be on the record would not be the transcript of it, but it would be the location on the video and it would be accessible. >> Is there is there an option for you to
review it >> um >> right now? >> Now? >> Yes. Um, >> yes, that's >> that link. >> Yes, that's an option, but I would need the link. >> Okay. Okay. So, the link, um, I can also bring my computer if there you were not
having trouble hearing uh, from my speakers. I could bring it up to where you are. Uh, so perhaps the um, court reporter could also hear if there's >> if you want then council would would if he wants to approach so everybody can
hear it. That way it's happening all at the same time. Would that be okay with you? >> That way. Okay. So, we can just do it on >> and I apologize. Our our normal uh tech person is >> I I understand it's okay. Um I I understand tech issues happen. And if we
bring it up here, maybe even we could use my mic. You can set it here and you may be able to hear it then. >> Do you want to approach? >> I I've seen the video. I know what it says. I'm fine. >> Okay. I mean you might >> I see it on our computer screen as well
so I know what it is in here. Okay. >> How to pronounce your last name properly. Is it schmidt or schmid? >> Schmid. >> Okay. So, it sounds like a T, but it's not. >> No, not at all.
>> I'm going toward Just say your name for the record, will you? >> Jesse Schmidt. >> Perfect. >> My wife and I moved down here about five months ago and uh we have three young sons >> echoing from different speaker. Oh, because it is it's coming from back there and I'm hearing it here too. Right.
>> It's just it might be the audio quality of the video in that case. >> Yeah, I am hearing it from both places. I'm hearing it there and here. >> Go ahead. That's right. I'll do my best. >> They're eight, five, and three. And one of them goes to the beach school and the weather is what brought us here. We've
been coming here for around 20 years. And uh we have two boys have dish muscular drophe. So we needed nice weather. So we're down here and we want to invest in a beach. So we've bought a couple houses already and we're in the
process of buying another one from Joe Orlandini. Uh the house has some lean issues. Uh it's kind of under a blanket umbrella and there when all the other violations
and leans are taken care of, there's around $50,000 left and we would like to pledge that $50,000 towards his leans to get the blanket uh get that house off of the leans if we could please.
So, >> it Jesse? >> Yes, that's it. >> Okay, thank you. >> I'll bring that up under my council person's items. Jesse, thank you. set and it will simplify matters a great deal. Um your honor, just so everyone's aware,
um our regular tech person has remoted he's connected remotely at this point. So they are working on the second and third um video. So it may we may be able to actually use that, but the first video they're not going to touch. >> In favor say
to Roger over there. >> Yes. I don't know. I don't know this couple at all, but they're trying to close on this property and they'd like it to be released out from underneath the umbrella, period
um of those leans. And I I don't see why we wouldn't afford them that or why we wouldn't accomplish that for him. Um, it doesn't it's not going to cost the town anything to do that, is it, Roger? >> Well, the the concept of the umbrella is
that the the wider we reach, the sooner we get paid. Um, so narrow narrowing our reach um um could impact us. But however, according to the notes that I was
writing that they were committing $50,000, if I understood them correctly, >> that's correct. >> Towards the the lean bill, if you will, >> that's right. >> Um, so subject to verification of everything they say, including their willingness to commit the $50,000
towards the overall lean bill. Uh, I would sus I would say that if all that bears out to be true and councils of of agreement, we can craft an agreement that would um pull them out of the umbrella and allow them to proceed. >> Excellent. Does anybody object to that?
Were you going to object to it, Joan? >> No, we want our We want the leans paid. We want we want properties to turn over. We want >> the best use of properties on the island, but we also want compliance. So, we're not releasing the other leans, but
I think that if this is one way to to get this part done, let's get it done. >> Yeah, I agree. >> I apologize. I don't know why the volume changed suddenly. really. And if you can do well for the turtles as well, that's great. But you
can't do for the turtles and sacrifice the people. That's my >> Okay. Well, What would you like? >> I'm just going to proceed. Um, one thing I want to point out, your honor, though, is that the council did mention in that hearing, we are not going to release all
the leans. Uh, and that that's really the part that I wanted to get out there. Um, and I want to clarify that going before the council was necessary because both 1560 I Street, which is the property Mr. Schmid uh sought to release from under
the umbrella of leans and the subject property were both owned by Orlandini at the times the leans including the subject lean uh were recorded against the subject property. So pursuant to the face of these leans as well as uh Florida statute these leans um
encumbered all other real and personal property owned by Mr. Orlandini. Uh and so when Mr. for Orlando is trying to sell a separate piece of property like 1560 I Street that doesn't have violations on it. Uh that property needs to be released from under the umbrella
of the lanes encumbering his other property that does have violations, 80 Avenue E. Um so pursuant to this agreement, Jesse delivered a $50,000 check to the town to release 1560 I Street uh from the lanes recorded against 80 Avenue E. This is my
exhibit 22. And I just want to note a couple of things on this check. Uh consistent with the minutes of the town council meeting on December 9th, 2019, uh the memo is partial release for 1560 I Street. The
date is December 12th, 2019. So only 3 days after that meeting and the amount is $50,000 which is the amount that they committed towards the amount of the leans on 80 Avenue E not in satisfaction of those leans.
Uh exhibit 23A um is one of three partial releases that was recorded to release 1560 I Street from the leans on 80 Avenue E in exchange for $50,000. I just want to note a couple of things on the face of this release. Um,
specifically under the property owner's name, it says 1560 I Street. That's the property that's being released. Uh the paragraph under that says in accordance to the decision by town council on December 9th, 2019 to release the abovementioned property from this lean for the amount of $50,000 has been
satisfied in full and that the undersigned hereby releases the lean as to the whole of the above described real property and consents that the same be discharged of record. Under that is the really important part of this which says this partial release of lean releases only the property mentioned herein. All
other properties attached as a result of uh instrument number 2019 00000067137 remain. And so that means that the lean encumbering 80 avenue E remained. This release is only as 21560 I Street.
In February uh 2020, there was a town council meeting on February 3rd, 2020. And during public comment, uh Joe Orlandini asked whether he could mitigate leans for 80 Avenue E and one of his other properties, 1710 to 1740 Astero Boulevard. Uh the minutes
for this meeting are exhibit 24. Uh the relevant part is on page nine under final public comment and there the council approved a motion to wave the rules regarding lean mitigation and allow the town manager in Orlandini to work out all of these issues Orlandini
has pending with 1710 to 1740 Eststerero Boulevard and 80 Avenue E which would have included the lane that we're here for today. Um why this is important for today's hearing uh is that it shows that the check paid by Mr. Schmid to release 1560 I Street from the lean umbrella was
not part of some broader settlement of all the leans on 80 Avenue E uh or else Orlandini wouldn't have come to the council 2 months after that asking to be able to settle the leans on that property. This shows that as of February 3rd, 2020, there was no agreement in place uh to settle the leans on 80
Avenue E, including the one that we're seeking to forclose today. Exhibit 26 uh is an email thread and it's in reverse chronological order from the bottom of the page. Uh and so the first email is from Mr. Schmid dated Monday, March 23rd, and it says, "Hey,
Roger, this is Jesse. I was just wondering if we can set an appointment up this week where I can get Joe here and we can figure out the fines on his 80 Avenue E. I'm closing on it soon, and I want to have everything addressed ASAP." Above that, you can see Roger Roger Hearnstead wrote, "We're working
on defining all of the issues with this property. Please stand by." And you can see at the very top, uh, Mr. Schmid responds, "Thanks, Roger. We're ready to close on this property." uh would really like to get this figured out soon. Thanks, signed Jesse Schmid.
And so again, this is important for this hearing because at this point in time, March 25th, 2020, so after the time that Jesse Schmidt is now claiming he went to town council and came to an agreement to settle these leans, uh at this point in time, there's no dispute as to whether the code enforcement lean on the
property that we're seeking to forclose was still there. Uh at this point in time, Jesse Schmid was aware that there are still fines and leans on the property and he's actively trying to figure that out. Uh the next day before Mr. Orlandini, Mr. Schmid and the former town manager met to discuss the leans on the subject
property, a deed in le of forclosure was executed from Orlandini to White Sand dated March 26, 2020. Uh however, this deed wasn't recorded until July 20th, 2020. On April 1st, Mr. Hearnstead emailed Mr.
Schmidt and Mr. Orlandini explaining that 80 Avenue E has two code cases that are not in compliance and acrewing fines at $250 per day, including the case we're here for today. So, page one of exhibit 28 is that same email thread we just looked at in exhibit 26 with new
replies. Um, as you can see, it's the same email thread from the subject line and it also has all the responses. And you can see that Mr. her. Instead, the former town manager sent an internal email to Daphne Burchcher with the town
uh asking how long to unravel and she tells him that she'll have something to buy one. This shows that even after the deed was signed over to White Sand, uh town staff were still working out the information needed to discuss the fines with Mr. Schmidt and Mr. Orlandini.
Exhibit 28B shows that in response to Jesse's request on uh March 23rd, 2020, Daphne had prepared a summary of the status of the leans on 80 Avenue E and sent it to Mr. Hearnstead. Uh which as you can see from the exhibit, Mr. Hearnstead forwarded to the email
address Mr. Schmid had been emailing from as well as Joseph Orlandini saying here are the fines to date, other conditions to follow. Again, indicating that there was not an agreement at this point. And if you look at um Miss Burchcher's summary that Mr. Hearnstead f forwarded,
uh you can see our case number C14-0394. A few lines under that, it says that it is not in compliance, no permits issued. Uh and then a few lines under that, it shows the amount due under the lean at that point in time, which was 367,
uh 150 now owed with 250 per day being imposed until compliance. again showing as of April 1st, 2020, the leans were still on the property. Uh fines were still acrewing and Mr. Schmid was aware of that. Exhibit 29 shows that after no response
to the lean status update on April 1st, 2020, Roger followed up on April 1st, 2020 or April 9th, 2020 and Orlandi had asked to speak with Mr. Hearnstead privately. Um, and then there's something that's not in
this timeline, but is relevant to what the respondent is claiming. On April 16th, 2020, a mutual release of claims was recorded uh pertaining to the beachfront property located at 1710 to 1740 Eststerero Boulevard.
Um, and I can provide a copy of this exhibit to you as well as respondents council. And I would mark this as the town's exhibit 54. If I may approach. >> Any objection, council? >> No objection. Okay.
You're seeking to admit this exhibit 54. >> I'm sorry, your honor. I said you're seeking to admit exhibit 54. >> Yes, your honor. >> Okay. It'll be admitted. >> So, in paragraph 16 of respondents affidavit, um he states 5 days later on March 31st, 2020, Beachfront Escapes
wrote the town a check for $111,6284. Under that in paragraph 17, um a copy of the check is attached. And then in paragraph 18, it states, "Befront Escapes issued the check to the town to pay the remaining $15,000 owed by Orlandini under the purported
agreement as well as to pay the town for fines related to Mojo." And so what I've just given you is a mutual release of claims. Thank you. Uh between the town of Fort Myers Beach and Beachfront Escapes LLC. Uh and a
couple things I want to point out. The first whereas clause uh describes certain property located at 1710 to 1740 boulevard. Uh this is the subject property of this release. Uh this defines the subject property. The second
whereas clause identifies the case numbers that this release relates to. Uh notably our case number. The case number we're here for today is not included in this release. Um, and then under the paragraph where it says, "Now therefore," the first
numbered paragraph, it states, "Befront shall honor before March 31st, 2020, pay and deliver to the town the sum of 111,6284." And that's the amount of the check that respondent is claiming uh also covered the $15,000 owed by Orlandini under the
agreement. And I just want to note that the entire amount of this check is accounted for in the mutual release of claims. There's no mention in this mutual release of claims about anything to do with 80 Avenue E or the instant case. Uh the amounts are identical. And
so there's nowhere where this extra 50 $15,000 could have come from to account for whatever this extra $15,000 that Orlandini was supposed to pay was going to come from. The check that they've attached represents solely a payment made in furtherance of this mutual
release of claims pertaining to a completely separate piece of property. And so that check is not relevant uh to this case. And it does not show that there's any sort of settlement agreement pertaining to this particular case or this particular property.
I'm going to move on to November 2020, exhibit 33A. And at this time, Paula Kiker, a realtor, uh sent Daffhne Burchcher with the town of Fort Myers Beach an agenda for their Jesse Schmid meeting to discuss the
status of Mr. Schmidt's permits and fines on 80 Avenue E. Um again, this is I'm looking at exhibit 33A. You can see from the signature block that the sender uh is a real estate broker. At the top, the subject line is agenda for Jesse Schmid meeting. And a couple lines
below, you can see the attachment is agenda for Jesse Schmid. The next page, exhibit 33B, is that attachment. And you can see on there that the third entry is 80 Avenue E fines on 80 Avenue E. So again, at this point in time, November 2020, after that mutual release, after
the check that they're claiming should have settled this, uh, they're still trying to work out the issues on AD Avenue. there's not an agreement in place. Uh the next page, page three, is labeled as 33C, and this is Miss Burchcher's response to Miss Kiker's email. Uh you
can see at the top that Miss Bircher also copied Mr. Schmidt in this response at sales@shmidesmachinery.com. I have documents establishing that this is Mr. Schmid's email address. If there's any objection to that, um I'll just present those in a moment, but you
can see from the subject line, this is the same conversation. Um going to the next page of exhibit 33C. Um towards the bottom, you can see Daphne's response to the inquiry about 80 Avenue
E. Uh and she is town staff says, "When Mr. Schmid acquired this property. The town manager quoted a settlement for the outstanding leans. In accordance to the compliant agreement sent to Mr. Schmidt on May 1st, 2020, a onetime fine of $61,6284 was due immediately. Additionally, in
order to release the lean, all permits were to be applied for and issued by July 1st, 2020, and a certificate of completion was supposed to be issued December 31st. Mr. Schmid has not paid the settlement offered as of this date, and no permits have been applied for. Roger told me that the new reduced fine
is $75,000. That fine needs to be paid and the violations need to come into compliance in order to release the lean. So here at this point, we are still in the stage of negotiating an agreement. This shows that there was no agreement up to this point in time. The documents are further going to show that there never was an agreement that was actually
settled on. Okay. So going now to page nine which is marked as 33 D uh shows Miss Kiker's response. And you can see again that Miss Kiker's copied Mr. Schmid on the communication at salesmiddmachinery.com.
And she acknowledges Miss Burchcher's email and states that I've been working with Jesse, meaning Mr. Schmid to get everything back on track. Page 16 is marked as exhibit 33E and is another email from Miss Kiker to the same chain dated November 3rd, 2020. Uh
again, you can see Jesse's copied on the email and she says this is page 16. Thanks for the call and further clarifications. I've added Jesse's contractor, Steve Sutter, to this email chain so everybody is on the same page of what needs to be done by all parties
in order to get this cleaned up. My clarifications are in red. Please let us know if we can set up a meeting for the 80 questions. At the bottom of page 19 and at the top of page 20, you can see Miss Kiker's comments regarding the 80 e- comments in red, as she mentioned.
And so those comments state, and this is at the bottom of page 19 again, Jesse understands if he demos the home, the outstanding code violations go away and fee needs to be paid no matter what, but would like to have a meeting with the parties that be to see what can be built back should he decide to go that route.
Should he decide to keep, we understand that Steve Sedter needs to apply for a after the-act building permit for all the work that has been done and has the option to hire a third-party engineer to state that all the work to date is quote in compliance. The home must be in compliance before the lean will be removed.
Again, Mr. Schmidt is copied on this email. He never offers any objection or clarification. So, he ratifies the statement uh or a state of mind as represented by his realtor in his presence. Uh this shows that Mr. Schmid's knowledge that the property remains out of compliance as of November 2020, that he will need permits to bring
the property into compliance, and that the property must be in compliance before the lean on the property will be removed. Moving now to page 25, which is marked as exhibit 33F. You can see at the bottom where Miss Burch responds to Miss Kiker's
statements regarding 80 Avenue E and Jesse's plans to correct the violations on it, saying, "The information requested can be obtained through a zoning verification letter. Link provided for zoning verification letter below. The fee for the zoning verification letter is $250." Then she
provides the link and again at the top you can see um that Miss Ker responds that she will follow up with Mr. Schmid the next day. And again, you can see at the top where he's copied at salesmittiesmachinery.com. Exhibit 34, you can see that Jesse paid
for Jesse Schmid paid for a zoning verification letter on 80 Avenue E. This is you can see on this receipt it says date 1152020. So, this was two or three days after uh
Daphne Burchcher with the town suggested that he get a zoning verification letter to see what could be built back on the property if he decides to take care of the code enforcement violations by demolishing the property. Uh consistent with what Miss Burchcher uh sent in the email, the total for that is $250. And
again, you can see on this payment verification, uh it is for a zoning verification letter. And at the top it says address 80 Avenue E. This shows that Mr. Schmid followed Daphne's suggestion to obtain a zoning verification letter again to determine
what could be built back if he chose to correct the violations by demolishing the property. Uh this shows us that the reason for the zoning verification letter was requested um was to see what could be built back if Jesse Schmid decided to remedy the violations by
demolishing the property. Um it also shows that Mr. Mr. Schmidt was actively involved in the conversation uh between Miss Kiker and Miss Burchcher. Uh because that conversation included uh concluded with Miss Burchcher suggesting that Mr. Schmidt obtain this ZBL.
The next exhibit is exhibit 35. This is a copy of the zoning verification letter that was issued to Mr. Schmid. Uh this is also the same zoning verification letter that respondent is now claiming suggests that
there are no further code enforcement violations on the property and that if anything else this should this date November 18th 2020 should uh mark the date of compliance. Um I just want to note a couple of things about this. This was issued
November 18th 2020. Uh the last line of this letter says this letter is responsive to the zoning verification application submitted November 5th, 2020. So again, this was issued pursuant to that payment receipt uh that I showed
you in exhibit 34, uh which in turn was submitted because Daphne Burcher suggested that Mr. Schmidt obtained this letter to see what could be built back if he decides to remedy the code enforcement violations by demolishing the property. And so the suggestion that
the fact that this letter says there are no code enforcement cases on this property uh somehow means that means that there's no leans on the property, no violations, uh is somewhat ridiculous given the context of why this letter was obtained. It's clear
from the context that this isn't the case because again the whole reason that he asked for this letter was to see what could be built back uh to correct the violations. And then a couple other things on the point that uh respondent is trying to
make that there are no active code enforcement cases on this property. Uh I have a couple other documents uh to show that just because this letter says that doesn't mean that there are no code enforcement leans or violations ongoing. Thank you.
See in the magistrate. Okay. Uh so the exhibit uh I'm providing uh I'm marking as the town's exhibit 55. This is a lean search request form uh requested on behalf of Whit Sand
Properties of Fort Myers Beach. Um the date of the request is November or sorry, January 27th, 2020. Um, and at the bottom you can see where it says staff use only, which is what was filled out by town staff and it says
code enforcement leans and the box checked says see attached list pending code enforcement cases. None. And so this shows that the the town can say there are no pending code enforcement cases, but that doesn't mean that there's not existing
code enforcement lanes. This document shows that even though this document says no pending code enforcement cases, it also clearly attaches the same code enforcement lane that we're seeking to forclose today. So, fast forwarding now to December 12th, 2021. Uh, at a management and
planning meeting, the council requested that a discussion regarding collecting fines be added to the next management and planning meeting agenda. This is reflected on page three of exhibit 38, uh, which are the minutes from that meeting. I also reviewed the video from this meeting and the context of this was
that a council member had previously asked the former town attorney for a list of properties with the largest code enforcement fines and wanted to discuss whether the council needed to take some sort of procedural action um or legal action against these properties. Uh the
next day after that MMP meeting, uh Patty Post with the town prepared and sent Miss Burchcher a lean list as of December 9th, 2021, which lists the status of the leans on 80 Avenue E, including the status of the lean that we're currently seeking authorization to
forclose today. And so exhibit 39A is a copy of that email, which at the top shows an attachment named lean list 12921. And then the next page marked as exhibit 39B is a copy of that attachment.
And you can see from the first line, it shows that the code enforcement lean we're seeking to forclose uh is included still as of December 9th, 2021. And it shows the amount due and says that it is still acrewing at $250 per day. Again,
showing that at this point in time, the property was not considered in compliance. It also shows that the lean still existed on the subject property. And then at the January 13, 2021 management and planning meeting, uh, former town manager Roger Hearnstead
reported that there were some code enforcement cases with large leans and the property owners were not cooperating with the town to resolve these violations. Uh, the vice mayor asked the former town attorney to provide a list of violators at the next council meeting. Exhibit 40 is a copy of the minutes from that meeting. This
conversation begins on page 2, paragraph C. And I'll just read a couple sentences from that. So the first sentence says, "Town manager instead reported that there were some cases with large leans and the property owners were not cooperating with the town to resolve their violations. Uh, council member
Allers commented that a violator could pay their acred fees without collecting the violation or correcting the violation. Uh, town attorney Heron uh replied that daily fees would continue to acrew if the property owner paid the fines without coming into compliance. Uh, this emphasizes the importance of
coming into compliance before any sort of settlement is reached. Uh, Vice Mayor Hosfro suggested that the town attorney provide a list of violators during the attorney's items at town council meetings. And then skipping forward a couple more sentences, Vice Mayor Hos suggested providing a list of
violators over 90 days and another over six months. Town Attorney Heron Jr. agreed to provide. After that, the next council meeting was January 24th, 2022. And at that meeting, the former town attorney provided a list of 14 code enforcement leans, including the lean that we're seeking to forclose
today, and noted that there were only two options to bring the properties into compliance, forclosure or injunction. The town manager indicated that the property owners on this list were the ones they were unable to work things out with. uh the town council reached a consensus to move forward with title searches for foreclosure of these leans.
So, exhibit 41A is a copy of the minutes from that meeting as well as exhibit 41B numbered as page 10 um which lists 14 code enforcement lanes uh and was included as the agenda materials for this meeting.
This list appears on the last page of uh composite exhibit 41 labeled as 41B. And you can see this is essentially the same list um that had been prepared by town staff the previous year in December 2021 showing
that the lean in our code enforcement case uh was still encumbering the property. At this point, $514,150 had acred and was owed on the lean and that it was still acrewing at $250 per
day as of what is this? January 2022. This list was discussed again at the April 7th, 2022 MMP meeting. Uh those minutes are exhibit 42. And then on April 18th, 2022, the town council unanimous unanimously approved a
motion to authorize the town attorney to enforce the code enforcement violations and leans and attachment A uh through court actions including foreclosure. And exhibit 43A is the minutes from this hearing. Uh page 15 marked as exhibit 43B is the agenda item summary which
shows that there was an attachment A subject that was uh the subject of that motion. And then page 16 marked as exhibit 43 C is the memo referred to in the minutes as attachment A. Uh and on the last page of that you can see the subject property appears uh and the
leans on that property are referenced. Moving now to exhibit 44A. And this is an email exchange in reverse chronological order um between former town attorney John Harren and uh Daphne Burcher with the town. Um, this email is
related to uh, apparently uh, Mr. Schmidt had reached out to the town council member um, Adhalt. And so Mr. Adterholt had reached out to uh, John Harren for information on what
Jesse was asking about. And this I I believe is referenced in the respondents affidavit. Although perhaps this is early. Uh regardless, the second paragraph of this email, uh Mr. Harren states, "Please correct me if I'm wrong, but isn't this the property
that was originally owned by Joe Orlandini for which uh he was cited by code enforcement staff for doing work without a permit? Thereafter, because Orlandini took no action to bring the property into compliance, his case was brought before the town's code enforcement special magistrate who found Orlandini to be in violation of the code
and due to non-compliance with the special magistr's order, a lean was placed on the property. As I recall, somewhere in between or shortly after the recording of that lean, Jesse Schmid/Whand acquired the property in bold with full knowledge of the code violations and lean in bold for a
discounted price. Neither Orlandini nor Jesse Schmidwhand have ever applied for building permit, yet the property is being actively leased out. Am I correct? And then you can see at the top where Miss Burchcher responds uh the second paragraph she says, you're correct with
your synopsis of 80 Avenue E. And then below that she says, "Additionally, Roger has offered to work with Mr. Schmidt several times, but Mr. Schmid has never followed through." Uh and this again is being offered to show that as of May 16th, 2022, uh the town's position was there was no agreement.
Still the lanes were still on the property. On August 12th, 2022, uh a foreclosure complaint was filed by John Harren. And again uh we went through the date of compliance uh which was deemed to be
uh September 2022 uh because the property was demolished by Hurricane Ian. And again that's composite exhibit 45. Um and that pretty much brings us to the present day. To supplement this timeline, I have a couple of affidavits
uh from the town records custodian. Exhibit 52 is being offered to show that no agreement exists. Uh, I'm not going to read the whole affidavit, but I will read paragraph four, uh, which states, I certify there is no entry in the public records of the
town or any of the following to the best of my knowledge. A fully executed written agreement to satisfy and release the code enforcement lean recorded against the property located at 80 Avenue E, Fort Myers Beach, Florida 33931 in code enforcement case number 14-0394.
a fully executed written agreement between the town of Fort Myers Beach and Jesse Schmid to satisfy and release the code enforcement lean recorded against the property located at 80 Avenue E. Uh in case number C14-0394, a fully executed written agreement between the town of Fort Myers Beach and
Joseph Orlandini to satisfy and release the code enforcement lean recorded against the property located at 80 Avenue E in case number C14-0394 a fully executed written agree settlement agreement between the town of Fort Myers Beach and White Sand Properties of Fort Myers Beach LLC to
satisfy and release the code enforcement lean recorded against the property located at 80 Avenue E in case number 14-039. 94 or payment made to satisfy and release the code enforcement lean recorded against 80 Avenue E in code enforcement case number C14-094.
Exhibit 53 um is an affidavit that is being uh offered to show that the emails and attachments that I presented are public records of the town. And then as to those emails uh for documentation as to Jesse
Schmidt's email address, I have a couple of exhibits. >> What did you talk about the reduction hearing? And I've marked this as the town's exhibit 56. Uh this is a town of Fort Myers Beach driveway application. Uh you
can see that the applicant is Jesse Schmid and Jod Hannon. And on this application, the email listed is sales@shmittymachinery.com, which is the same email address uh that was copied on the email correspondence between town
staff and polyiker. There's also a signed certification at the bottom that to the best of my knowledge, the information submitted for this permit is true and correct. And so that's being offered uh in support of Jesse Schmidt's email address. Council, any objection to exhibit 56?
>> I do have a question. >> Council referenced uh August of 2022 um foreclosure action. I don't see that in the exhibits. >> I was just referencing that as a milestone marker. That's not evidence
that I'm presenting. Okay. I I thought I heard you say it was in your I apologize. >> I just wanted to be clear. >> No worries. Um >> anyways, no objection to exhibit 56. Okay. Thank you. Be admitted.
>> Uh all of what I've just presented um today being said, what we're here today again is really very simple. Uh we're just here requesting authorization to forclose the lean recorded in code enforcement case number 14-0394
which once again has been marked as exhibit 19. Again the statutory prerequisites for foreclosure of a code enforcement lean are set forth in section 162.09 sub3. Uh and the town has met those uh requirements. It's clear on the face of the lean that it has been
more than 3 months since this lean was recorded because it was recorded on March 27th, 2019. It's also clear that the lean remains unpaid as evidenced by the timeline of documents I just presented of the proceedings showing that the lean has never been settled, paid, or released.
The affidavit of compliance marked as 45A and the affidavit of code enforcement manager marked as exhibit 4. In addition, council's own arguments uh suggesting that there may be a credit owed on the lean, but even if a such a credit was applied,
there would still be an amount outstanding on the lean. Accordingly, the evidence shows that again the statutory prerequisites have been met and we again respectfully request uh that your honor enter an order authorizing the town to foreclose on the code enforcement lean uh recorded as
instrument number ending in 7137 in the incident code enforcement case. Thank you, your honor. >> Thank you. Okay. Um, the this case is simply a a request from the town allowing them
to file a foreclosure action in circuit court. Essentially, my job is to review what the elements are and whether they've been met. There's no question respondents the owner. This is not a homesteaded
property. Notice, service, all of that has been met. As far as there being violation on the property, fines were assessed and a lean was recorded, that has obviously been met. Um
whether the fines or leans have been paid, it is clear that they have not been paid in full. There is a question about the partial release for the $50,000. Now, the partial release was on the
property 1560 I Street, but the lean ending in 7137 by virtue of it being a lean encumbers all the properties by that owner. And so, it did include 80 Avenue E.
I'm going to ask the parties a couple of questions to help clarify something to see whether and to what extent any part of this $50,000 could be applied towards this lean. I'll ask respondents council I suppose
first and then I'll ask you how many properties was instrument ending in 7137 encumbering at that time >> those are all Mr. Orlandi's properties
and >> how many properties were being encumbered You would think at least five is what we're suspecting. >> Okay, then I'll allow the town to answer that. Do you know how many towns were being encumbered by that
lean 7137? >> I my um my response would be a guess and it would be aligned with what respondents council is saying. I believe it's approximately five properties. Uh those properties did not include the
properties owned by Mr. Orlandini's business, Beachfront Escapes, because that is a separate owner of record. Uh, and so it would be the properties owned by Mr. Orlandini, uh, not the property owned by Mr. Orlandini's business, beachfront property or beachfront
escapes. Uh, and I believe that's the 1710 to 1740 Eststerero. And so that property would not have been encumbered by the lanes on 80 Avenue E. And so to the extent there are other properties like that where Orlandini's business owned it, uh that's a separate owner of record
and it would just be the properties owned by Mr. Orlandini in name. I believe that that's approximately five properties. Um but I I can't say for certain. >> So your honor, >> Beachfront Escapes is Lyall Klene. And
when you actually look at the check from Beachfront Escapes, you'll see Lyall Klein under that um LLC. So the Mojo 1710 1740 was Beachfront Escapes and Joseph Orlandoini
just like I believe I Street was the Lyall Klein Trust and Joseph Orlandini individually. But I'm happy to work with council to get verification on the exact number of properties.
>> How many? Okay. So the 50,000 was to partially release each of the leans on 5060 I Street. >> So your honor, I Street did not have any code enforcement leans. Okay. >> It was only encumbered by virtue of the
lean on 80 Avenue E. Does that >> was it only encumbered by the lean on 80 Avenue E or was it encumbered by leans on other properties as well? >> Just 80 avenue E because the ownerships
were different in terms of how I street worked. So >> and how how many leans was that? >> Well, >> three, your honor. >> Three. Well, two uh three instruments were released, two code enforcement cases.
>> Okay. So, the 50,000 was to partially release each of the leans on 5060. How? I'm sorry, on 1560 I Street. Was that three or two? >> It's two leans. Uh, however, what I
believe was an abundance of caution. There were three releases recorded. Two of those releases were in the same code enforcement case. Um it was the code enforcement order imposing lean and then a previous order in that case had been recorded as well. And so two releases
were filed and I actually have those releases um in my packet. I have the index. Um, that's exhibit 23. So, exhibit 23 represents all of the releases uh that were recorded to
release 1560 I Street from the leans encumbering 80 Avenue E. I guess my question is the 50,000 was towards how many was it towards a payment towards three? It was payment towards two >> two. Okay.
As for the the argument that um your first argument respondent that um they initially sought to foreclose a different instrument
um and that resata would apply or that they've elected a remedy. I do not agree with that. the and we had a hearing about a year ago and your argument specifically was that
it was not a clerical error um because the town had sought to foreclose on a completely different instrument and therefore it had to be renoticed um as such and I agreed and that's why
we're here today because it is specifically another instrument strument there were no there was no foreclosure requested on this instrument at all. So I do agree with the town that that does not bar seeking foreclosure. It it is
complet it is a completely different instrument. Um so as far as do do the materials have the information on on those other leans that were being released from the 50,000?
Yes, your honor. Each of those releases uh indicates at the bottom that they're being uh >> do we have >> in accordance to the decision? I'm sorry, your honor. >> Do we have information on
how much those leans were for? I I can tell you um >> because if there's a prora application of the 50,000 towards everything that was owed, that would be important information. >> So the
two leans that were uh released were the lean that we're here for today. Um and the amount owed is without accounting for that $50,000 is the amount that I've stated. the other lean um in code enforcement case number
17-0065. Uh that lean is for only $500. And your honor, my point to that would be they've already received authorization to foreclose on that in full. So
there's no real prora set off on that given how they've already gotten the authorization to go on that in full. So it should all be applied in this case. >> And your honor, I just want to profer that we agree that uh Mr. Schmid went to the town council
requesting to pay $50,000 towards the leans on the property. And so in our foreclosure suit, um we we are requesting that that $50,000 be credited uh to the total amount owed. >> Your honor,
>> that answers my question. Thank you, >> your honor. They filed an actual count to foreclose on that. If that position is correct to cra credit credit the $50,000 as to that lean amount in that case, the 17065,
they can't foreclose on it because it's been paid in full. $500 is considerably less than $50,000. >> That's not the case before me. But my point is is that they're trying to get a double credit on this lean and the other
one and it's inconsistent. >> That's not what I that's not what I'm hearing. I I think I believe the town just said that they would seek to credit the 50,000, >> but they're acknowledge that we're foreclosing on a lean that is $500,
which is obviously less than 50,000. Um, our position on that is just to keep everything straight, but we're not going to file a release of that lean and then credit $49,500 to we we're just trying to take care of
it all at once. Um, but that $50,000 is to be credited to the respondent towards the code enforcement leans on the property, which to whatever proportion uh includes the lean that we're here for today. The the purpose of my questions
is to figure out the how much to credit if if to credit and what I'm hearing from the town is that they don't have an objection to the crediting of that $50,000 >> and for today >> which is what's before me. >> Well, I'm just making sure because they
as I understood what they were saying is they were trying to say we're trying to give that credit in the foreclosure case and somehow reduce it by $500 here today. I don't hear that. That's not what I'm hearing from the town. >> Then the other thing I need to bring up
to your honor is if you're disagreeing with my election remedy argument and agreeing with their position, which is essentially it's a different instrument even though it's the same code violation, the numbers still don't work out because
that new instrument is recorded on March 27th, 2019. Even if you take their compliance date of Hurricane Ian, that comes up with $320,250, not the $500,000 number they're seeking permission to foreclose on.
>> I think that they've added what was on there and the $250 a day thereafter. >> No, they said the date of compliance was Hurricane Ian, >> which was September 28, 2022. >> Yeah. So from March 27th, 2019 to
September 28th, 2022, that's 1,281 days at $250 a day gets you $320,250 >> plus the amount that was on the lean that was recorded >> that was vacated and they're saying it's a different >> that was not instrument that was not
vacated. What was vacated was the previous lean. This lean had an amount on it which was what? 2009. Could you give me the I >> Yes, I can read directly from the order. >> It's okay if you want to give me the the exhibit number
>> exhibit 19. >> Thank you. >> But our that's the point judge is that if you accept their entire framework of this is that it's a different instrument and it's you're it's either one or the other. So that's our position. I just
want the record made clear for us. I understand the the lean that they're seeking to impose. I'm sorry. The lean that they're seeking to foreclose on the instrument 7137 when it was recorded,
it was an amount of $257,150 at that time plus $250 per day thereafter. What they're saying is your number which was the 320,000 figure approximately is then added to
this number because this was the number from that time forward. This is not the one that was vacated. The one that was vacated had a different number on it and this one replaced it. Then you add 250 a day for that after that until September
28, 2022 and that's how they got to the number. No, I understand that. I just disagree with that contention. >> Okay. >> And that's what I wanted to make clear for the record is that they can't double dip on a vacated lean. >> That's not the vacated lean. The vacated
lean was Do you have that exhibit number? >> Exhibit 19. >> That's That's exhibit 19. >> Oh, I'm sorry. or the vacated lane. Um that's two of the index that is exhibit 11.
The vacated lean was uh that's I don't have the instrument number on that. >> I apologize. Exhibit um 13. It's exhibit 13. >> Got it. Okay. The vacated lean was
instrument ending in 6125. The number on that the amount on that was Yeah, there wasn't an amount on it. That's probably why it was vacated. There was no actual amount on it. That's
a different instrument. So that one is instrument number 6125. >> Yes, your honor. >> And it just had $250 a day from that point forward. The one from that was
recorded in 2019 had the amount that was acred from the violation from the original date of the violation up until the date that it was recorded as a lean and then continued to acrue thereafter. That one that one that was recorded was
not vacated. >> Is that what we'reing here? Thank you. The next question that I had was pursuant to costs besides the amount
that the lean that the fines had accured on the lean, do you have uh any additional items such as costs that are added that you're seeking in the foreclosure? And if so, documentation towards that.
No, your honor. Just what's stated in the affidavit of compliance and then the code enforcement officer's affidavit as exhibit 4. >> Okay. Thank you. >> Uh this doesn't um preclude what I'm saying doesn't preclude uh what our
request would be would which would be for um whatever we're statutoily entitled to um under foreclosure. So, attorneys in the foreclosure action in circuit court, which would be attorneys >> in the foreclosure action. Yes. >> I'm talking about within the lean because it does have uh that was
recorded. There's a $150 >> uh cost assessed. Um and then any additional costs before you get to the circuit court. Obviously, I can't tell you what you're entitled to in circuit court. >> Yes, your honor. At this point in time, that's such a
>> fluid number. All I have is the 150 that was on the recorded. Okay. >> Okay. I would like to take a quick break. Uh 10 10 minutes if that's okay. Or it could be 8 minutes to 11:25.
Um I just want to review a couple of items. >> Yes, your honor. >> That were submitted today that I didn't get to review. Okay. Uh, I know a respondent submitted an entire binder. I've not had an opportunity to do that, so I want to do that right now. Okay.
All right. So, 11:25 Okay, thank you. We are back. >> Okay. Um, I was reviewing respondents materials because I wanted to make sure any further questions I had I could address here today. Um
and I do I would like to um direct the parties to respondents exhibit one FNG. These appear to be partial releases also of the lean that are separate from the
$50,000 that was recorded the partial lean the I'm sorry that was paid the year before this. These were partial releases of lean for the same instrument number um for the town. What was the consideration paid for these partial
releases? >> Is your mic on? >> Uh your honor, it doesn't state on the uh face of the release. And so I >> Have you seen these before? I have seen these before, your honor. Yes. >> You don't know what they're for. >> Uh I I don't know what they're for. Um >> Okay.
>> I know that this is regarding uh Mr. Orlandini, and I know that this was this happened in March 2021. As far as I've been able to determine, I've gone through all of the records of the town that I've been able to get my
hands on. I this all I can say about this is that it's not related to anything that Mr. Schmid came before the town council for. Um I have knowledge based on uh trial transcript
testimony from Mr. Schmid testifying he sued Mr. Orlandini. Um, and I know in that, and I'm not preferring this as evidence, um, just there there had been in the past, I think, intentions for Mr. Schmidt to buy
more properties, and I bottom line is I I don't know what the consideration, if any, uh, there was for this partial release of lean. Um, but it appears this was recorded after Mr. Schmidt already owned the subject
property. And I I can say with certainty that this has nothing to do with the town council meeting that occurred in December 2019. >> Okay. Just want to >> the consideration is that set forth in the affidavit that was part of the overall agreement that we're contending
existed to resolve the leans as it concerned 80 Avenue which was the 50,000 plus the extra money that was paid. >> Yeah. I don't I took it out >> when Mr. Well, when White Sand closed on the 1710740 Mojo's property,
>> how much was that extra money? >> That was the extra 15,000 that was part of the overarching 65,000 which you had actually heard evidence earlier about how Mr. Hearnstead had offered to resolve all the leans for somewhere in I
think it was like 60 65 somewhere in somewhere in that $60,000 range. >> The additional 15,000 was for how many leans? It was it was all part all the leans were to be paid and resolved for $65,000
as it concerned 80 Avenue E. Um so everything that was encumbered as an ancillary property because of 80 Avenue E's leans were encompassed within that $65,000. They did not include code enforcement leans that may have
existed on those properties independent of 80 Avenue though. >> Right. It was to release those properties from being encumbered from this particular lean. My question was how many were the was that 15,000 to be applied to? >> The same as the 50,000. It was all for
the Yeah. All the same properties as we identified in the um the affidavit. >> Uh your honor, I I just want to clarify the release as to 455 Polarmo. Uh, I do have an email from Orlandini. I don't have it
printed out. Um, to suggest that this was a completely separate agreement again that had nothing to do with uh, Mr. Schmid. Uh
regardless though, there only evidence of this $65,000 agreement is Jesse Schmidt's testimony. There's no documentation supporting this whatsoever. Uh this instrument, um the releases that are in this file don't say
anything about $65,000, $50,000, or otherwise. Um, and so it it's my position that they have not presented evidence of any agreement whatsoever. Um,
and I just wanted to make that clear. >> I I'm just trying to clarify what he's given us or what sorry what he's submitted and what >> what he's saying everything what he's saying represents. >> So my next question is do you have um I know you have the $50,000 check. Do you
have the $15,000 check? >> So, >> or receipt for the payment. >> Yeah, that's Well, that's a I think a factual dispute that we have with the town, but the position of whitand through Mr. Schmidt
was that the money that you we have the check for um which is the check made out from Beachfront Escapes is was wrapping up into that $15,000
or that $15,000 was included in that amount. But that check is part of the affidavit. >> Okay. Thank you. And your honor, the only other part that I could say could aid you in that analysis is we have the settlement
statement for the 17101740. Given that Mr. for Orlando was a an owner of that property. Seemingly um if the 80 avenue lean was encumbering it by virtue of his ownership
um it would have been included on that closing statement. Our position is that because the check was made out to the town before then that um that lean those leans that we're talking about were resolved.
Yes, ma'am. >> Respond to that or >> Sure. >> I I just want to note again um the partial release that I showed was between a business entity and the town, not between Orlandini and the town. And so the sale of that property, whatever
closing statements, the 80 Avenue EANS wouldn't have shown up because >> I'm sorry. I I didn't hear >> I don't know why my mic isn't working. I apologize. I'm just going to >> That's Yes, that's fine. You can you can use >> the
release agreement that um I provided concerning the um eststero the mojo's property 1740 um that agreement um which the check was made pursuant to was an agreement
between the town and a business entity not the town and Mr. for Orlandini. And so the closing documents for that property uh would not have reflected the 80 Avenue EAN because those lanes encumbered all properties owned by Mr. Orlandini, not all properties owned by
that business entity. >> I I understand I understand that argument. Thank you. Okay. Um, I want to take everything uh back with me and review everything in greater detail to be fair to all of the
parties. Um, I've had I have spent time already reviewing the towns um before today's hearing. the context of the hearing was helpful and you and the town has submitted additional documents that I I would like
to review as well as spend an equal time amount of time reviewing everything that respondent has um I have taken a look at it but to be fair to all the parties I want to do that before I do issue a ruling um I have a I think a very good
understanding of the positions of both parties and Um, I I'll be prepared to issue an order with the findings of fact. I and conclusions of law. I would
be happy to accept um proposed orders from the parties. I do not anticipate that you would be able to agree on a proposed order and I've not given you enough information on how I will rule for you to be able to do that. But if
you would like to do that, um, you can submit proposed orders. I would say one week from today, no later. Um, and I would be happy to review them, adopt and revise, however, or not.
Right. Um, so do exchange them before you provide them, please. But um I don't anticipate you're going to have uh an agreed order. So um that's that's it. I think I have asked
all the questions that I just wanted clarified on the materials that I've reviewed. Does anybody have anything else to add in closing? >> No, your honor. >> No. >> Okay. Um all right then we can adjourn and if
I could find this and we are turn. Thank you. Thank you.