Special magistrate to decide whether town may foreclose 2019 code-enforcement lien on 80 Avenue E

Monica Schmucker, the town’s appointed special magistrate, heard arguments Jan. 29, 2025, on the Town of Fort Myers Beach’s request for authorization to foreclose a code‑enforcement lien recorded March 27, 2019, against the property at 80 Avenue E (code enforcement case CE14‑0394).

The town sought a new order authorizing foreclosure of the instrument recorded March 27, 2019 (instrument ending in 67137), saying the lien remains unpaid. Town counsel told the magistrate the prior February hearing had involved a clerical error that led the magistrate to authorize foreclosure of a different instrument recorded April 12, 2016, and asked the magistrate to authorize foreclosure of the 2019 lien instead.

The dispute centers on two threshold points: (1) whether the current proceeding was properly noticed as a hearing to authorize foreclosure of the 2019 instrument or is an untimely request to correct a final order, and (2) whether the lien underlying CE14‑0394 was already resolved by a settlement and partial releases introduced by the property owner’s representatives.

Why it matters: Florida law (section 162.09(3)) allows a local government to foreclose a code‑enforcement lien recorded in the county public records if the lien remains unpaid more than three months after recording. The magistrate said she will resolve the procedural threshold first and issue a written order within 15 days.

Town presentation

Town counsel summarized the lien history: an original code‑enforcement order recorded April 12, 2016, and a later order recorded March 27, 2019 (instrument number cited in the agenda materials). Counsel said the town previously asked the magistrate to authorize foreclosure but later learned staff had presented the wrong recorded instrument, and the town is now asking authorization to foreclose the March 27, 2019 record.

Code‑enforcement manager Thomas Yazzo testified about notice and posting and introduced an affidavit of compliance and an affidavit of notice. Yazzo said the town posted certified mail receipts, posted the notice at the property and at town hall, and posted the notice on the town’s public website. Asked about whether the property had been brought into compliance, Yazzo testified that a desktop review showed the property had been in compliance as of Sept. 28, 2022, after Hurricane Ian and demolition of the structure.

Owner’s evidence and defense arguments

Representatives for White Sand Properties of Fort Myers Beach (the current owner) and their witness, Jesse Schmidt, testified that a settlement with the town in late 2019 resolved the outstanding fines that encumbered multiple properties owned by Joseph Orlandini, a predecessor in title. Schmidt testified that he paid $50,000 of a $65,000 figure the town accepted to allow the sale of a separate property (1560 I Street) and that the remaining $15,000 was paid by Orlandini at a later closing (Schmidt said the later payment occurred in the course of closing on property known as Mojo’s, 1710/1740 Estero Boulevard, in mid‑2020). Schmidt identified a dated check (Dec. 12, 2019) and several recorded partial releases of lien that he said arise from that settlement and subsequent transactions.

Schmidt and defense counsel argued the town’s prior materials and council emails show town officials believed the matters were resolved years ago; defense counsel contended that the present proceeding either was not the correct notice to change a final order or that the lien at issue had been released and should not be subject to foreclosure. Defense counsel asked the magistrate to treat the hearing as limited to the threshold clerical‑error question unless the court would consider the settlement evidence; the magistrate allowed the owner to present evidence and said she would decide what to consider.

Evidence admitted and procedural schedule

The magistrate admitted the parties’ exhibits during the hearing, including the check, partial releases, council minutes and emails in which Council Member Karen Woodson and Mayor Dan Allers questioned whether the matter had already been handled. The magistrate said she would issue a written order on the threshold jurisdictional question within 15 days. She also set a briefing and scheduling window: the owner may file supplemental materials (cases or a brief) by Feb. 4, 2025, and the town may file a reply by Feb. 7, 2025; if further evidence or testimony is needed the magistrate said she would continue the matter to the March 5, 2025 regular hearing to allow the parties time to prepare.

Other testimony and records

- Jesse Schmidt testified he purchased several properties that had been encumbered by liens tied to Orlandini and that partial releases were recorded for numerous parcels after the late‑2019/2020 transactions; he identified recorded releases for properties including those with legal descriptions matching Venetian Gardens (the Mojo’s parcels) and a release affecting 2890 Seaview Street.

- Thomas Yazzo confirmed he did not prepare the November 18, 2020 town letter that stated “there are no active code enforcement cases on this property,” and that he was not employed by the town at that time. Yazzo said he would need to perform a records review to answer questions about documents not before him at the hearing.

Magistrate’s ruling and next steps

Magistrate Monica Schmucker did not rule from the bench. She announced she will issue an order within 15 days addressing the threshold jurisdictional issue (whether the hearing, as noticed, properly authorized foreclosure of the 2019 instrument or attempted to correct a final order outside rehearing time limits). Depending on that decision, the magistrate said the parties may need to renotice or proceed; she indicated a likely continuation to the March 5, 2025 regular hearing if further evidence or testimony is required. The magistrate encouraged the parties to confer informally and noted the clerk’s email (amy@fmbgov.com) as the filing route for supplemental materials.

What was not decided

No foreclosure was authorized at the hearing. The magistrate made no factual findings on whether the March 27, 2019 instrument remains unpaid or whether the recorded partial releases and settlement described by the owner fully extinguish the lien encumbering 80 Avenue E. Those questions are reserved for the magistrate’s forthcoming written order or any further hearing she schedules.