##VIDEO ID:vGyIDeNzjX0## all right um I'm going to call this order I mean this meeting to order so my name is Monica Schmucker I am the special magistrate to hear today's hearing um sorry I have this letting me know I'm supposed to be here um um I'm a licensed attorney in good standing with the Florida bar I'm qualified to serve as the appointed special magistrate for the town of Fort Meyers Beach um at this time if everyone can please silence their cell phones uh or put them on Do Not Disturb This is a quasi judicial hearing which means it's similar to a case in court however the rules are less formal formal Rules of Evidence don't apply but fundamental due process will govern today's proceedings all parties who are here to speak on a case will have a chance to do so um and then within 15 days of this hearing I'll issue an order with findings and facts conclusions of law and affording the proper relief consistent with the code in Florida law at this time I'd like everybody who is going to testify today to please stand up raise your right hand do you swear or affirm that the testimony you are about to receive is the truth the whole truth and nothing but the truth I'm sorry do you swear or affirm that the testimony you are about to provide in today's hearings is the truth the whole truth and nothing but the truth yes thank you all right we have only one case I see on the agenda um and it's the a I'm sorry it's ad Avenue E is that correct yes all right can the town go ahead and proceed real quick I you need to be on microphone I do have a jurisdictional argument to raise I'm happy to wait until the town's concluded to make that presentation or if you want me to go ahead and get that done first however you'd like to do it but because it's jurisdictional I wanted to get that out there um well I need to know what they're presenting first in order to be able to consider the jurisdictional argument okay fair thank you okay good afternoon magistrate uh we're here on the town's request for authorization to foreclose a code enforcement lean on the property located at 80th Avenue East under code enforcement case number 14- 0394 uh just to give a little bit of a background on this case uh this code enforcement Lane arises from a violation on the property that was originally adjud adjudicated by the special magistrate in 2016 respondent's predecessor entitle was found in violation of the code in order to bring the property into compliance within a set time frame and failed to do so as a result a daily fine of $250 per day accured and a lean for the fine was recorded against the subject property this lean was the code enforcement order to impose lean which was recorded April 12th 2016 as instrument number 2016 0000 76125 and that's attached as exhibit B to the notice of hearing on page nine of the agenda materials the special magistrate previously authorized forclosure which I'll get back into in a moment um but by 2019 the property had a new owner Mr orlandini who's another of respondent's predecessors en title and the property remained in violation because the violation continued on the property the special magistrate entered an order certifying that a fine of$ 250,000 $150 had accured and continued to acre in the amount of $250 per day for each day the property remained out of compliance and this instrument is the code enforcement order imposing lean which was recorded again as a lean against the subject property as well as all other real and personal property owned by Mr orlandini and this was on March 27th 2019 that it was recorded and that instrument number was 2019 00006 7137 and that order is attached as exhibit a to the notice of hearing and that starts on page six of the agenda materials and this is the instrument that we're asking to foreclose today the town previously came before the special magistrate in February on February 12th uh 2024 to request authorization to forclosed the lean in this code enforcement case and we've since become aware of a clerical error by staff which resulted in your honor authorizing foreclosure of the order that was recorded in on April 6th 2016 instead of the Lan that was recorded April 27th 2019 uh the town is not pursuing foreclosure of that April 12th order and so we're here today to request the Foreclosure of that code enforcement order that was recorded on March 27th 2019 uh and again this is exhibit a to the notice of hearing in the agenda materials and we're not requesting any changes be made to the previously entered order authorizing the foreclosure on that other lean you're not no just a new order authorizing foreclosure on this particular instrument which that's the number that ends in 671 37 with that being said respondent wh sand properties of Fort Meers Beach is the current owner of the subject property as reflected by the Lee County Property Appraiser's website screenshot of the Lee County property appraiser information for the subject property is on page 39 the agenda materials and notice of this hearing was provided to the respondent and a copy of that notice can be found as exhibit a pages 4 through 13 of the agenda materials and the notice appearing had three attachments uh the notice or I'm sorry the code enforcement order imposing lean which was recorded on March 27th 2019 that's the order that we're uh requesting authorization to for close at this hearing that previously entered code enforcement order um that was entered April 12th 2016 and the town's proposed order for today's hearing regarding satisfaction of the notice requirements uh I have C enforcement manager yazo who submitted an Affidavit of notice and posting attesting to complying with the notice requirements and I also have an amended hearing exhibit B um this was amended as to the order of the attachments if I may approach uh to provide you with that and I have copies for everybody else yeah make sure you you hand Council a copy and give her yes your honor and I defer to C enforcement manager yazo to present the information contained in this affidavit good afternoon your honor my name is Thomas yazo I'm the security and compliance man manager for Fort Myers Beach I've been employed here for approximately two years I took over my current position March of 20124 I'm presenting today the appdate of notice and posting you'll see within that notice which is in the exhibits uh where we posted those properties too or post it with certified mail and how it was done first was sent certified mail to White Sands Properties Fort Meers Beach LLC 3210 stero Boulevard that's the property address second was Steven runi apologize for pronouncement on the name he's the registered agent at 110 North Main Street leel Florida 33935 the third is C White Sands property Fort Meers Beach LLC P box 11118 label Florida that's the mailing address and the last will be white Sam properties of Fort Meers Beach LLC 415 polaro Circle Fort Meers Beach copies of the certified mailing receipts are attached in exhibit B I posted a notice of the of the same at 80 Avenue E Fort Meers Beach which will be exhibited in C shows photos of same there are true and accurate copies of those photos I posted a copy of the notice at the primary municipal government office Town Fort Meers Beach at 2731 Oak Street and again true and accurate photos were posted in exhibit D in addition they were also posted to the town's public accessible 247 website uh which is listed here as exhibit e in your honor while I have Mr yzo here i' also ask him to testify to another after it uh which I have copies of as well and see this is an Affidavit of compliance um which he signed which attests to the amount owed under this code enforcement lean um that says code enforcement case number CE 14394 will be closed upon payment of 54 uh 59450 and I would just ask that he confirm that that's still the amount owed under the lean and then I also have copies for everybody with this Affidavit of compliance y again Thomas yzo compliance security manager Fort Myers Beach uh that is a true and accurate description of the affidavit that I presented at that time uh it showed that the property was in compliance as of the 28th of September 2022 due to Hurricane Ian and the property being totally demolished as of the hurricane this was done as desktop investigation from paperwork here in the town of Fort Meers Beach all these are based upon my review of records at that time thank you the statutory prerequisites for foreclosure of this lean have been met section 16209 sub three uh provides after 3 months from the filing of any code enforcement lean which remains unpaid um that's been recorded the code enforcement board May authorize the local governing body to foreclose on the lean and this lean was recorded in the Lee County Public Record more than three months ago um that's clear on the stamping across the top of the lean which uh shows that it was recorded in the Lee County records March 27th 2019 again as instrument number 201900 6 7137 um as such has clearly been more than 3 months since the filing of the lean and the town has met its burden to foreclose on the lean obviously we're here today because this lean remains unpaid and the town has not received payment of the amount due under that lean uh as Mr yazu testified and also at a previous hearing to authorize forclosure of the code enforcement lean in this case your honor found that responded did not present sufficient evidence that the lean was ever paid satisfied otherwise released and I also have copies of that prior order uh for your reference thank you and I'd ask that your honor accept uh the exhibits I've provided as well as the agenda materials into evidence are you providing this order as exhibit I yes it was pre-marked as exhibit I um based on this was attached to an a complaint uh for foreclosure of the other lean um but yes it can be exhibit I'll admit all these exhibits that you've provided is there any objection to any of the exhibits as far as okay then I'll admit them thank you your honor uh and given the forgoing uh we just ask that you grant the town's request to authorize for closure of the C enforcement Lan in this case uh which is the one that was recorded on March 27th 2019 okay thank you your honor thank you good afternoon good afternoon so I want to start with the notice of hearing that was provided to your honor and the notice of hearing contrary to what council has said is not a authorization to foreclose if we look at it it says it is a notice aering to correct clerical error in foreclose authorization order related to Lane encumbering 8 Avenue a now exhibit I that you received from the town is that order they're asking you to correct the the problem with that request at least facially is this the exhibit I is a final order and jurisdictionally final orders can only be corrected within the time for rehearing and under Section 2- 428 of the town code which contemplates rehearing and appeals it says that request for rehearing must one be in writing and two must be made within 10 days of the date of the order so your honor entered this order on February 23rd 2024 we are now about 220 some odd days past that rehearing period And so just facially as noticed this is a rehearing request that is untimely and should be denied just based on that second it's we need to ask ourselves first is this a clerical error and to understand that and why the answer to that is no I want to go back to the original notice of hearing that produced exhibit I and walk the court through why this was a substantive issue and not a clerical one what I am going to provide to your honor and I'll have copies for Council is I'm going to mark this as defendants exhibit one if I may thank you thank you do you have a copy for so the first page there your honor just kind of a demonstrative to illustrate what you're going to see when we walk through this but we're really focused on C1 14- 0394 and you'll see the instrument number there is the one ending in 76125 that is the lean that was reported on April 12th 2016 now you'll see in the amended and corrected notice of code enforcement hearing there that the town requested to foreclose on certain Lanes now of those three Lans mentioned on the first page of the notice only one of them is actually correct that's the 2019 001 16044 I object to in bringing in the other Code Enforcement cases into this hearing as this is hearing on concerning enforcement case C4 I understand but I need to hear his background where he's going with it so yes you're right thank you so what you'll see there though your honor is it also says a copy of the Lans or the reference Lan is attached here to and Incorporated by reference so when we go to those the first Lan is the lean that is referencing or was sought to be foreclosed to c5- 016 7 but then when we go forward and we get to the case that we're here about today c14 D 0394 you'll look up at the very top and you'll see that the lean at issue was the one recorded on April 12th 2016 it's the instrument number ending in 76125 not the 2019 lean that they want to have your honors order corrected to be included in the authorization of foreclosure so the relief they sought in their notice a hearing was to foreclose on the April 12th 2016 lean ending in 76125 then when we get to the hearing that happened and Mark this as defendants exhibit two thank you again the first page there is for demonstrative purposes but at the hearing the town introduced ex a composite exhibit B B1 through B3 and the one that we're really looking at is exhibit B2 that was the lean that they asked you to foreclose on and consistent with the notice of hearing attachments the town introduced for the 14- 0394 case the April 12th 2016 Lan ending in 76125 so the relief sought in the notice and the evidence presented at the prior hearing was consistent it wanted you to enter an order authorizing foreclosure on the 2016 Lan recorded on April 12th ending in instrument number 76125 and that's exactly what your Honor's order did when we look at the town's exhibit eye that they introduced today you did exactly what they asked you authorize foreclosure on the April 12th 2016 lean ending in 76125 when we think of clerical errors if we were to use the analogue of a 1.54 motion we're talking about typos not errors in substance where it may relate to something where a litigant sought the wrong relief introduced evidence inconsistent with what it wanted this is not a situation where your honor made a typo and entered the wrong instrument number or the wrong lean your honor did precisely what the town asked for both in its notice and in the evidence presented that's substantive that's not a clerical error if you were to change and correct this order you would be giving the town new substantive relief you'd be authorizing for Clos closure on a new le and So based on that as well even if you were to conclude that this was a proper rehearing request that you could entertain jurisdictionally it's still not a clerical error that could be corrected it's a substantive mistake and the relief that they're seeking based on that not available um depending on and I think that's the threshold issue we need to get to before any of the other stuff because as noticed this wasn't an authorization to foreclose this was a we want to correct a clerical error and so depending on how you're honor rules on that if we're going to proceed for then I I will be calling my client but if your honor is inclined to say I'm going to hold them to the notice of hearing and just decide is this a clerical error then my client doesn't need to testify are you prepared to testify the defense of the substance what do you mean are I mean are you prepared to proceed beyond the threshold question no because I need to have another gentleman Joseph orlandini who was as you heard Council say the owner of these properties at the time these leans were recorded um come to testify and so that's evidence and testimony we would need so I think we need to hold them to the notice of hearing which is can they correct this okay response yes as I stated in my presentation we're not seeking to amend or disturb the previous order entered in this case we're seeking a new order authorizing us to foreclose on the document attached as exhibit a to the notice of hearing and I'll just read directly from the notice of hearing to show that this is the issue that was noticed for today hearing um pursuant to section 162.000 n sub3 Florida Statutes and an accordance with Section 2- 427c of the town of Fort Meers Beach Land Development code the underside code enforcement officer has documented that three or more months have passed since the lean attached to this notice as exhibit a was recorded in the official records of Lee County Florida although not legally required a hearing will be held on Wednesday January 29th 2025 at 1 p.m. in Town Hall chamber um council chambers before the town special magistrate to authorize foreclosure of the lean attached as exhibit a and that lean attached to as exhibit a is the order that was recorded March 27th 2019 and so this was noticed as a hearing to authorize foreclosure on that particular instrument not as a hearing to change in order that was previously entered in this case uh the clerical error just to clarify the clerical error was the fact that the order that we're seeking to foreclose foreclose now was not included in the agenda materials or notice of the previous hearing and so that's the error that we're seeking to correct but it's more on our side we're seeking to correct that error we're not seeking to correct any error within your order we're just seeking a new order that authorizes us to foreclose on this lean which meets the statutory requirements of it's been more than three months since this lean was recorded and it remains unpaid and I'd be happy to answer any questions if your honor has them you're saying that the clerical error was the failure to include the correct document that we were attempting toose on yes okay and you acknowledge that the notice of hearing is titled notice of hearing to correct clerical error in in foreclose authorization order related to lean encumbering ad Avenue E yes sir all right I'm going to have you go ahead and proceed with the substance I will not rule today I I want to hear what your substance is if we need to continue and reset for the next regular hearing which is in February for you to bring in the next witness we can do that um and I will address all of the arguments at the same time but I would rather just have it all that's fine um and the main substance of just sorry so go ahead and proceed with the substance of your of your defense and so that your honor at the prior hearing I'm just going to put it out there Mr ronei presented you with some evidence of a settlement and I don't know if your honor recalls that he presented you with a check um I do okay okay and I if I recall correctly your honor said and I'm not trying to put words into your mouth so if I'm misremembering I apologize but I think what I recall you saying was I'm not going to be considering that that's whether or not there was a settlement you could raise that in the Foreclosure case that was pending at the time if that's still the Court's position then the testimony from my client Mr orlandini that that's what it's all going to be about why there was a settlement um and so the reason I have him here today though and would like to present Mr orlandini is that in that foreclosure case which has since been dismissed uh the T to sought to say that the issue of settlement despite your honor saying you weren't addressing it was somehow a res judicat issue that had already been determined and so if your honor is going to maintain that same position that I'm not considering it if you're inclined to move forward with and consider the substance I would say one just make that abundant clear so that if we do end up in court again we don't have those res judicat arguments being made by the town because it's made abundantly clear it wasn't something the court considered um but if you're inclined to consider it now then I will be happy to put my client up here my recommendation is that you present your case and then let me decide what I'm going to consider I think my order was very clear I I did as well but when I had a 57105 order or motion directed towards me saying it's rest judicata and that it was considered I hope the court as a practicing lawyer can understand why we have the the hesitation that we do um but with that being said I I'll call Mr Schmidt up and I'll ask him some questions for the court and we can go about it that way thank you can you please introduce yourself yeah Jesse Schmid Mr Schmid do you have your relationship with white sand properties at Fort Myers Beach yes what's that relationship owner and does white sand own any property located at 8 Avenue E Fort Myers Beach Florida yes about when did white sand acquire ad Avenue so my best recollection around is in March of 2020 I believe all right now what about uh property located at 1560 I Street here in Fort Meers Beach does white sand own that property did on that property it's been sold okay but when did B initially acquire believe December of 2019 okay now who did wh sand acquire ad Avenue E from Joseph Orland and what about I Street who did wh sand acquire Jose now how was it that white sand came to acquire 8 Avenue E from Mr orlandini Mr orlandini was uh behind o not and he was in foreclosure in order to sell all right now did the acquisition of AD Avenue E have any relationship with Whit Sand's purchase of the 1560 I Street property yes 1560 was uh J's house also and the fines that were on 80 Avenue had encumbered all his proper at that point okay so when was it that Whit sand decided it wanted to try and acquire the 1560 I Street property probably about I signed a contract 10 months prior to closing the property all right and that closing was on approximately March 20th 2020 I said December it was I think it was March it was beginning of March just Cor in 2020 yeah 2020 all right so when Whit sand initially entered into that contract to purchase 1560 I Street did it know about any of those leans that you just referenced no how was it that white sand came to have learn about those code enforcement Lanes they a title search okay so once wh sand learned about those code enforcement Lings what what did white sand do went and talked to Roger Hearn stad was the town manager of the time and made a deal with Roger herstead to get Joe's fines off of 80 Avenue E which encumbered 1560 I Street and then I went to an actual town meeting to the Town Council and presented them with an offer they accepted it I wrote the check they cashed it and then I closed ice Street all right so what was the amount that the town agreed to accept in resolution of those code enforcement LS $65,000 at the time I paid 50 of the 65,000 to the town of Fort Myers Beach who was to pay the other 15,000 Joe orlandini all right was that $155,000 paid it was paid and then some yes how was that $155,000 paid I bought another property from of Orland at 1710 1740 EST sterile and is that property called Mojo yeah was the Mojo's restaurant was correct all right and so the payment of that lane did that occur through uh the closing on the Mojo's property correct through Title Company okay and about when was it that white sand closed on 17710 1740 um the the Mojo's property it was 1860 and 8 Avenue about June of 2020 correct it's a few months after correct okay for Council Mr Schmidt I I handed you a document we're marking as defendants I think it's exhibit three do you recogniz this check yes I do what is that check that check is to resolve the leans at 80 Avenue E and it give a partial release of Joe's find so he could sell 1560 I Street okay 1560 didn't have any Lan except for the blanket Le that was from 8 Avenue so and when was this check dated 1212 2019 was that after you went to that town hall meeting that you testified about earlier correct was that meeting that you testified earlier on December 9th 2019 correct okay was this check cached by the town of Fort Meers Beach yes it was okay so do you have any relationship with Schmid's Machinery yes I'm the own okay so if this was something that was being done for White Sands can you explain to the magistrate why you wrote the check for sm's machineries because Roger needed it that day after that check was paid to the town of Fort Meers Beach was that lean released on 156s yes okay now were there any other properties aside from 80 Avenue E and I Street that were supposed to be released in conjunction with this agreement yes correct for Joe Joe had two or three other properties can you tell us what those other properties were uh one was in a it was Bay shores there was another one at 2890 C view uh C viw Street here in Fort Myers Beach uh there's probably one or two more because Joe still owned quite a bit of property at that time was 1710 and 1740 1 1740 Mojo is correct okay be b g for for going to hand you a couple of documents here we're going to run through all right the first one is can you identify what this document is I believe we have this marked as defendants for yes B release of L right for which property it says 1567 I street but supposed to be 1560 I Street I believe right and what's the date of that 110 2020 say that one more time 1110 2020 so shortly after the payment was made by you you on the High Street property to the town of for Myers Beach right correct okay what is this document here that we're looking at it's a partial release of and what's the legal description of this partial release Al block 10 block D venan Gardens as per yeah as per plat there're recorded in plat book six page 70 of the public records of County Florida is that the legal description for 1710 1740 um the Mojo's property I believe so yes all right and what was the date that this partial release Al was recorded November 12th 2020 okay so when was that record in relation to when you closed on the 1710 1740 property months later after the $155,000 was paid yes I believe there's a substantial amount paid but yes okay how much was paid in total to my best recollection I believe it was around 130,000 and what is the code enforcement case number that that's in case number ce1 17-65 next one I want to show you is we're going to have this one um what's the date of this Lane of the recording March 2nd 2021 and what property is this concerning 2890 CV street now what code enforcement case number is this releas Al for case number c 14- 0394 the one we're here today about correct now is it under your understand that all of these leans that we've marked as defendants exhibits were filed based on the settlement agreement that Whit sand Mr orlandini and the town of Fort Meers Beach had to resolve the leans based on 8 Avenue E yes that's corre once you acquired 80 Avenue E did you make any requests of the town with respect to um zoning yes I did a zbl maybe eight Mr Schmid do you recognize the document that we have marked as dependence exhibit 8 yes I do what is this letter zoning verification letter and to whom is it addressed white sand properties at Fort Myers Beach true and accurate copy of the letter that you received yes it is what's the letter head of this FMB for Myers Beach now if you could I want to direct you to the the bottom of the letter on page one does this letter say anything about Code Enforcement cases yes it does it says there are no active Code Enforcement cases on this property why were there no active Code Enforcement cases on this property because there was no because the leads were paid it was brought into compliance it was settled yes it was settled it was brought into compliance this was done years ago and what's the date of that letter November 18th 2020 so this was dated after you had closed on 17101 1740 correct after the monies that Mr orlandini were supposed to pay correct but did the town ever actually record a release Elane as a concerned ad8 Avenue E nothing that I'm of did you reach out to the town about that that failure to file a lane yes thank you the document that we have marked as dependence exhibit 9 you recognize this document sir yes what is it it is me reaching out to the Town Council what are you reaching out to the Town Council about to get a lean release for ad it can you identify for the magistrate the your email address on this yes it the Sal at Schmitty machinery.com all right and who responded to this email Karen Woodson what did what's Miss Woodson's capacity do you know her affiliation she a town council member and what's that say on her signature block council member and what did Miss and what did Miss Woodson say in response to your email thank you Jesse for reaching out I see that you copied Andy Hyatt our new town manager on this and I will follow up with him as well we are working very hard to clean up the past and this is another prime example thank you for bringing this to the entire council's attention what was the P that was needing to be cleaned up here I had bought other properties in the town of Fort Meers Beach that had never had leans released that were paid months and years ago also that we had to get tried to get cleaned up now I'm going to show you another email that we marking as defendant exhibit 10 can you identify that for the magistrate yes as an email to Dan ERS same email that Miss Woodson just responded to that's correct okay now what was Dan all's response good morning I have added Our Town manager Town attorney and director of operations on my response Becky Andy what can we do to resolve this as soon as possible this was an issue before I came on councel and thought it was handled years ago why would it have been handled years ago because it was handled years ago and can you explain what exactly the handling would have been whenever Joseph orlandini and myself after I put 1560 under contract I found out Joe and not only had Beach Lans he had IRS leans he had investor leans he had Bank leans so it took 10 months to try to sort that out before I could even get to the council or before I could even get to Roger Hearn stead for 80 AV mil to to release the L and that's why I had to go to the Town Council and PID the $50,000 and then Mr orlandini also had to pay his corre share so it was all resolved was all resolved years ago and that was because you guys had a settlement we had a settlement with Roger hnad and Roger Hearn said said as long as the Town Council approves it it's all done and over with Town Council approved it I believe I want to say it was in maybe December but I I Can't Remember December of what year 19 I think so I mean it's been five six years ago it's been a long time okay that's all I have for Mr Schmidt um there is one more document I would like to have on provide 11 11 um I'm sorry before you let your witness go do you have any questions for this witness and I'm sorry do you have any questions for this witness yes sir okay could you please come back up sorry about that uh Mr Schmid you testified earlier that you did a title search prior to closing on 8th Avenue East is that true I don't recall that saying I did a title search on 8 Avenue no sir are you saying you did not do a title search on 80th Avenue East Mr remun took care that for me if Mr Ste Community takes care of all the business for same properties so I guess that would be more a question for him okay so were you did you obtain a release from the Lans that were encumbering 80th Avenue East like an actual release of those Lans on the property no okay and you agree that the partial releases uh that your attorneys provided all of this all of those are titled partial releasee of lean yes it was 65 ,000 I paid 50 of the 65,000 correct okay and going back to the check that you've provided um do you have a copy of that a good copy of okay I have a copy here for you um can you read the memo of that that's partial release for 1560 I Street correct okay and that you agree that that says 1560 I Street and not 80th Avenue East the reason is 15 please just answer the question okay what was your question uh do you agree that that says 1560 I Street and not 80th Avenue East correct because that was the property I was buying the time and did you ever write another check um other than this one for the release of the leans on 80th Avenue East not myself personally okay um earlier you testified that uh the Town Council said as long as Town Council approves the settlement agreement uh that it would go through do you have the minutes from that town council meeting I believe I stated Roger heared said as long as the Town Council approves it yeah and I believe we can get that correct it should be uh should be public knowledge okay so is there any documentation of the Town Council approving this supposed settlement uh that you're claiming settled all of the Lans on 80th Avenue East I had to go like I said in front of the Town Council to get 1560 released because it was under all of his properties was under Orland de Properties or Jose for andini and the leans for one property encumber all of his properties not just the leans just don't stay on one property they encumbered all of his properties together 1560 had no leans on it at the time that I purchased it as far as violations from the town but ad Avenue he carried over onto his other properties right and and you agree these partial releases that were recorded um I'm the one I'm looking at is the one for code enforcement case uh CE 17-65 for example um but can you read that bottom line there on that lean this partial release of Lan releases only the property mentioned herein all other properties attached the result of Doc type Li instrument 20 1900001 16044 remain okay and so you agree that means that the property um this 1560 I Street was released from this lean but do you agree that this states that all other properties encumbered by this lean remain encumbered that's why Joe had to pay the 15,000 correct to get the rest of them released sorry what exhibit are you referring to um I don't have it marked on mine it was um the stack of partial release of lean um that I was provided uh perhaps Council can help me with what number that was which one is it I can tell you um okay so the specific lean I was looking at is um the partial release of lean um releasing 160404 uh at the top that's instrument number 8482 ending in 8482 um four exhibit four yeah uh was there ever a written agreement uh entered into uh that would have memorialized this supposed settlement yes there was with Roger herstead and Joseph orlandini i s right there at the Town Hall and did it with them where is that agreement you'll have to ask Roger and Joseph orlandini I wasn't the owner at the time so Roger would not give me a copy so you never requested a copy of the agreement yes I did I did request a copy I request a copy several times and since I was not the owner of the property Rog herstead would not give it to me and so you're saying that without having a copy of the agreement that memorialized that these leans would be released you still purchased the property knowing that they were encumbered by these leans the leans were paid at that time the lanes in the public records of Lee County um I again if you had a title request the records would have shown that these lanes were still encumbering 8th Avenue East I guess my question would be how did he sell the rest of his properties without paying without paying them Lanes then well that's that's not what we're here to uher possible I think uh I have no further questions for this witness but I would like to recall um code enforcement manager yazo do you have any followup questions for your client no um but I do want to get to that other document sure yes I just but before we proceed to that do you have any follow-up questions no okay so sorry for is yeah doesn't have the pretty sticker on it I apologize all the paper we've been shuffling counselor EX I just need you look at it so we can uh yes who oh did I already pass that off I don't know hold on let me check if it's the same I I have a black and white copy of it that I it looks like the same does it have the red circle on it because there's two of the same letter with the one difference being it's attached to the email okay it's the same so you have it marked as 11 okay then I don't need that okay thank you I thought I maybe passed it up but you know once things start moving so your honor you'll see there this is another email from councilman Woodson attaching that November 18th 2020 letter where she circled in red the the not active Code Enforcement cases on this property and um she obviously was expressing concern about that about whether that document had been considered in the decision making process on 80 Avenue E and that email was sent to the Town Council on May 10th 2024 and with that our subject us continuing to February where I can call Mr ory um Council can recall her witness if she soires okay you with this this is yeah I mean I have some argument to present but obviously I think you would want the evidence to conclude I suspect right um if if you you want to present the evidence complete yes complete your your presentation all right thank you then um so I think what you've heard from Mr Schmidt was can you go to the microphone please sorry what you've heard from Mr Schmidt was that there was an agreement in place between Whit sand Mr orlandini and the town for the lean on ad Avenue E to be released in exchange for $65,000 Mr Schmidt explained that initially he paid that $50,000 up front the remaining 15,000 was to be paid by Mr Orland de that $155,000 was paid after Mr Schmidt and Mr orlandini closed on the 1710 1740 property which is where Mojo is located here on a stero Boulevard and that once that occurred all the properties encumbered by that lean aside from 1560 I Street which had already been released were to be released and those series of release of leans that we introduced as exhibits show that was what occurred that c viw one of the properties Mr orlandini own got released that the Venetian Garden legal description that Mr Schmidt identified being the 1710 1740 Estero Boulevard was released and that because of that really what happened here is the town just forgot to file the release for 80 Avenue E and it's pretty understandable why when we look at the timeline of this the closing according to Mr Schmidt of the 1710 1740 case happened in about June of 2020 at that time we were in the full height of covid-19 and so it's quite understandable then that the town may have had an oversight in getting certain releases fil indeed you will see that the first release filed after that June 2020 closing did not actually get filed until November five months later and then the other releases as from I Street didn't get filed until March of 2021 so the town was acting it just because of the disorganization caused by the covid-19 pandemic they just missed 80 Avenue E but the town's conduct in filing these releases of these other properties that Mr Schmidt testified was encompassed by this agreement that also included ad Avenue E shows that as does that November 2020 letter remember at that time according to Mr Schmidt's testimony the closing on the Mojo's property wherein that $155,000 by Mr orlandini had paid had already happened five months earlier and what did the town say in that letter it said there were no active Code Enforcement cases if there were no active Code Enforcement cases that the reason for that is the property were released there was a settlement in place if there was no settlement in place and these fines were continuing to acre as the town is now alleging and asserting then those Code Enforcement cases would have been active they wouldn't have said that and that's why you have Miss Woodson's email from May of last year where she even circles that in bright red and says like did we consider this that's a problem and then when you overlay that with the emails from Miss Woodson and specifically mayor allers where he says I thought this was concluded a long time ago thought it was concluded a long time ago because based on what the agreement was between Mr Schmidt Mr orlandini and the town it was concluded years ago the only document that hasn't been filed is that release Aline for ad Avenue E every other property that was encompassed by those lanes that was part of the agreement has been released one in which was the 2014 code enforcement case that we're here today on so the town's conduct and what its actual officials have said shows that this was resolved there were no active Code Enforcement cases as as of November of 2020 because there was a settlement the town Town's mayor thought this was done years ago because it was um and like Mr Schmidt was saying there's a reason that he's been able to sell these properties subsequent to his purchase of them because these leans weren't encumbering them you can't sell a property when there were leans on them it doesn't make that couldn't happen so as just as a practical matter the notion that these were partial releases as opposed to the property being released as a whole which is what it was um just doesn't make any sense so again no authorization to foreclose should proceed the case that we're here on has a release on it of the lean there was a settlement agreement in place and it's been resolved thank you thank you I just I just wanted to recall officer yazo um to speak as to the continuation of the code enforcement case on this property um again uh can you please confirm the date that the code enforcement violation in this case um was actually deemed to have been corrected and the property was deemed to be in compliance with the code under this code violation so due to a desktop investigation it did show that it was shown to be in compliance as of the 28th day of September 2022 during due to Hurricane Ian and the property being demoed at that time thank you and if this property had been brought into compliance um prior to that date and the fines had stopped occurring those documents would be in your records correct that's correct I can't speak to those documents at this time because they're not in front of me and I have to do another Desktop review to go see any of those documents that are being spoken about at this time and I can't speak to any letters that were sent out that I had no piece in and can you confirm that you were not the one who sent out the letter that said there were no co- enforcement case that is correct I did not for the town at that time thank you your honor thank you can I ask we can shair um hurricane I did white sand get a permit for hurricane in I can't speak to that I didn't work here during Hurrican in so I don't know if there was a permit for Hurrican correct yeah can I just ask him one more question no are are you referring to the permits for hurricane in yes I I I just would like to have on the record um if Mr Yu could confirm whether his office is the office that issues permits your H I'm going to object they've had their chance to redirect and I mean they've already reopened I I don't I think that's improper it's fine it's I don't it's okay I don't need that okay thank you um I do have one question um you had stated that there was a discussion of the settlement during a town council meeting is that correct yes which town council meeting when was that so yeah I mean I can Mr orini can testify that too but it was December 9th of 2019 I'm just wondering if you have that information yeah December 9th 2019 okay um I actually have the minutes if you'd like them um do you have any objection to the introduction of the minutes May okay can you give provide Council a copy first I think I can manage that 12 what number are we on 12 okay you so you're hon NOS the highlighting on there that was produced in Discovery in the Foreclosure case that's not my highlighting for I'm going to admit all of your exhibits okay thank you m um okay so here's what I'm going to do uh I will issue an order within the next 15 days regarding the threshold issue okay depending on how that turns out I just want to take a look at the notices and and the history just to make sure that we get that threshold issue because you're you're right that is a threshold issue that has to be decided you do understand though that regardless I mean if if if it has to be properly noticed this is still an issue that can be brought in a separate hearing just with a different notice right just want it to be done correctly okay and I and I totally understand and I agree I'm just saying that you know we'll be right back in the potentially in the same situation um I do agree that the notice is confusing because it does have substance of foreclosure but part of the substance is also not it's it's a clerical error that it says that it is to be corrected so the substance of the actual notice is includes both so I just want to take a deeper dive into it before I make that decision um I will then obviously if if I decide that it is not properly noticed and there is a jurisdictional issue with that that would be the end of of this the order that would be it would not be continued because there would be no reason to unless it gets you know you would have to Ren notice it for a separate hearing if you wanted to proceed if on the other hand I think the notice was proper we will continue this to the March 5th because the February one is too soon from now so I want to give the power the parties sufficient time to prepare I understand you have one more witness that you wanted to present during that time if you want to prepare briefs that is always going to be helpful um before that March 5th hearing um with the court like briefing on the threshold issue as well because I'm happy to provide that I mean if you do I would ask that you do it within the next what are we Wednesday because I would need to give you sufficient time and then I would need to give the town sufficient time to respond are you saying you want to brief the issue I'm happy with providing cases even if it's not a full briefing I just wanted to offer it to the court in case you wanted it do you want the opport opportunity to brief the issue if he's going to submit anything opportunity to respond to what he submitted of course I'm saying do no if he's not going to send anything would you be able to have it by Friday the 31st I I can't because I'm supposed to be up at a conference in Orlando on the 31st and I I'm part of the leadership for that conference if you would how much time would you be proposing can I get it February 4th that's Tuesday yeah the only reason for that is I got the conference on the 31st and I got a summary judgment response in the Northern District of Florida due on the 3 okay um the 4th and then the Friday the 7th is that sufficient time to respond um yes okay all right so we'll do that any supplemental materials uh or brief the fourth and then I'll provide the town until the 7th to reply thank you um okay pending the outcome of that depending you know if we need to continue then this hearing we do it for the March 5th hearing okay um how should we submit the briefing it can be submitted to the clerk email am Amy fmb.com thank you in the meantime there's nothing stopping the parties from actually talking and sorting it out because it seems like an exchange of information might be help to the parties um which then if we do continue the hearing or if this hearing were to be Ren noticed for you know a different type of hearing um it it would be helpful at least if the parties I don't know maybe talked about it it's up to you all but maybe you can resolve it um and well you'll have the the order for me if I have everything by the 7th so you'll have the order you know within 15 days with which then you'll know I'll put on the order if it'll be come back on March 5th or not okay um is there anything else to address today I appreciate the time thank you of course yeah okay all right then uh this is this well is that it for today