Special Magistrate Hearing Minutes

1. Case 22-8894 — 1005 Aloha Way, Daniel O’Neill, LLC — Town of Lady Lake Code of Ordinances Section 20-15, Compliance Required; Section 20-17, Light, Ventilation; Section 20-17(b), Outlets, Lights & Switches; Section 20-17(g), Windows Weathertight, Good Repair; Section 20-19, Structurally Sound; Section 20-19(a)(1), Weatherproof & Watertight; Section 20-19(a)(2), Gutters & Downspouts; Section 20-19(e ), Electrical Wiring; Section 20-19(f) Structures Free From Infestation; Fences, Walls in Good Condition; Section 20-20 Minimum Standards; Section 20-20(a), Owner/Operator Maintenance, Health, Safety; Section 20-20(a)(1), Exterior Surfaces Maintained Adequately; Section 20-20(a)(6), Window & Doors; Section 20-20(b), Deficient Property & Blight; Section 20-22, Repair and Installations; Section 20-23, Not to Occupy; Section 20-23(a ), Owner of Dwelling or Dwelling Unit; Section 20-23(a)(1), Maintain Exterior & Public Areas; Section 20-23(a)(2), Stagnant Water; Section 20-24(b), Property Adjacent to Dwellings; Section 7-46, Storage of Junk, etc., Prohibited; Section 7-67, Trash Weeds, Vegetation; Establish Repeat Offender; Order of Enforcement (Lori Crain)

Ms. Crain presented the background summary for this agenda item (on file in the Clerk’s Office).

Ms. Crain stated that Mr. O’Neil has contacted her a few times since the February 28, 2023, Special Magistrate hearing, advising her that he had work done on the property previous to the hearing. She stated that she was unaware of any work performed on the property because he had not contacted her regarding this, and the tenants had advised her otherwise. She advised Mr. O’Neil to provide paid note invoices, etc., of the work he has had done.

Ms. Crain stated that she has had email communiques from the tenant, Ms. Schmied-Zyontz, as well, one included an attached photo of a text message from Mr. O’Neil stating that he has to evict them due to the violations and that the water will be shut off on April 4, 2023. Ms. Schmied-Zyontz asked Ms. Crain what they should do. Ms. Crain stated that she responded that she could not give legal advice and suggested discussing her situation with an attorney, the Florida landlord tenant laws, and The Villages utilities.

Ms. Crain advised that on March 20, 2023, she received an email from Attorney Robert E. Bone, Jr., notifying her that he is representing Daniel O’Neil along with a, Motion for Rehearing and/or To Continue Order of Enforcement in case number 22-008894.

Ms. Crain rebutted the following items within the Motion for Rehearing and/or To Continue Order of Enforcement Entered February 28, 2023:

Item 4 – The Respondent did not become aware of the alleged violations and the February 28^th hearing until on or about February 25^th when the Respondent received the Statement of Violation by regular mail.

Ms. Crain testified that on December 2, 2022, she prepared and sent the violation notice by certified mail to the property owner per the Lake County Property Appraiser information, which is required by Statute 162 of the Florida State Statute. She stated that on December 5, 2022, she posted the violation notice on the property at approximately 12:37 PM; an affidavit of posting was completed.

She stated that on January 30, 2023, Mr. O’Neil came to town hall to discuss the Order of Enforcement that he received for another case. Code Enforcement Assistant Williams handed him a copy of the violation notice for this case. An affidavit of hand delivery was completed at approximately 9:30. He was advised that this case had been scheduled for the Special Magistrate hearing on February 28. Per Ms. Crain, Mr. O’Neil stated that he did not know anything about the case on 1005 Aloha Way. Ms. Crain stated that she advised Mr. O’Neil that the certified mail had been returned but the property was posted with the violation notice. She stated that she showed him a photo of the posted notice, she advised him to bring copies of all of his documentation to support his side of the case to present to the Special Magistrate and into the record. He stated that he understood and that he would be attending the hearing.

Ms. Crain noted that when notices are posted on a property, it is considered service per Florida State Statute 162.

Item 6 – The Respondent has resided at 17897 SE 115^th Court, Summerfield, Florida for approximately four years. The Respondent has had the same mail carrier for approximately two years. The customary mail service has been that the mail carrier delivers any certified or registered mail to the Respondent’s door. The Respondent never received and was not aware of the attempted certified mailing of the Statement of Violation date December 2, 2022, giving the Respondent until December 30, 2022, to correct the violations.

Ms. Crain stated that Mr. O’Neil alleges that he did not receive the Statement of Violation and was not advised of the deadline of December 30, 2022. She reiterated that the notice was posted on the property and the notice was still on the property January 11, 2023, the last time she went by the property before that case. She stated that she took a picture of it on December 21, 2022. On January 11, 2023, it was still on property. Therefore, the required Notice had been given.

Regarding the statement that he did not receive the mail, Ms. Crain stated that per the Florida state statute, notices are sent to the property owner by the information provided by the property appraiser information. She stated that once she was informed from a tenant of Mr. O’Neil’s mailing address, notices were also sent to that address.

Item 7 – If the Statement of Violation was posted on the property, the Respondent was not aware of such posting. The following circumstances surround the Respondent’s management and maintenance of the property that have been an obstacle to communication with the tenant and the Respondent’s access to the exterior and interior of the property, et al.

Ms. Crain testified that she has shown evidence that the violation statement was posted on the property. Also, if Mr. O’Neil has been to the property to do repairs, as he has stated previously, he should have seen the posted notice. She reiterated that it is considered notice under Florida State Statute 162.

Item 12 – The Order of Enforcement authorizes the imposition of a fine of $150.00 per day if the property is not brought into compliance by March 20, 2023. The imposition of such fine under the circumstances would be unfair and an abuse of due process.

Ms. Crain testified that on February 23, 2023, she called Mr. O’Neil at approximately 9 AM, as she discovered that a written hearing notice had not been sent or posted for this case and she could not present it. She left a voicemail explaining the situation and inquired that because he stated that he would be attending the hearing for another case, that he could choose to continue with both cases. She explained that since the due process of required written notification was not met, that he would have more time to comply. She included her email address with the voicemail and requested that he respond via email. She stated that Mr. O’Neil left a voicemail message at approximately 9:30 AM advising that he wished to have both cases heard on February 28, 2023. Ms. Crain stated that she returned his call, left another voicemail requesting Mr. O’Neil respond via email that he wished to have both cases heard.

Ms. Crain, referring again to Item 4, stated that in the February 28, 2023 minutes of the hearing, “…Ms. Crain testified that during case preparation, she discovered that a written Hearing Notice was not sent or posted for this case. She stated that she contacted Mr. O’Neil via telephone and left a message explaining the situation. She stated that Mr. O’Neil left a voice mail message for her stating that he wants both cases to be heard February 28, 2023…”

Also, “… The Special Magistrate verified with Mr. O’Neil that it is his desire to move forward without him receiving proper notice…”

Staff recommendation: Respondent be found in violation of the Order of Enforcement dated 02/28/2023 by failure to comply with the violations and failure to pay $150 administrative fee. Enter an Order of Fine in this matter in the amount of $1200, which is the total accrued to date of the $150 daily fine that began to accrue on March 21, 2023, and will continue to accrue until such time as the property comes into compliance; impose administrative fee of $150 for this Order of Fine hearing in addition to the unpaid administrative fee from the Order of Enforcement hearing. The total amount to be recorded as a lien against the property. Further order the Respondent be established as Repeat Offender and any future violations stated in this Order of Fine will be Repeat Violations.

Ms. Crain advised that the tenants and the property owner’s attorney are present today.

The Special Magistrate stated that he will hear from Attorney Bone and that discussion will be limited to his motion to rehear.

Attorney Robert Bone, 918 W. Main St., Leesburg, advised that he represents Mr. O’Neil. He stated that it is not Mr. O’Neil’s intent to not comply with the requirements of the code regarding this property. He stated that the purpose of Mr. O’Neil retaining him is to help him cure the violations and to avoid the imposition of a fine on a property that may be unfair and unjust at the moment. He noted that based on the last part of the code officer’s testimony, that Mr. O’Neil volunteered to appear at the February 28 hearing for this case without the proper notice. He acknowledged that there may have been some communication issues and that Mr. O’Neil possibly had been a little anxious with the things he was trying to say. Mr. Bone stated that Mr. O’Neil has health issues.

Mr. Bone stated that he was not present at that meeting.

Mr. Bone stated that it is Mr. O’Neil’s intent to bring the property into compliance. As is outlined in his motion, it is a motion for a rehearing and a motion to continue. He acknowledged that the main focus is to give Mr. O’Neil some time. He stated that he is glad that the tenants are present for everyone to be in agreement.

Mr. Bone stated in his motion to continue that Mr. O’Neil and/or his workers have attempted to gain access to the property to see and address those conditions and to make the repairs.

Mr. Bone stated that Mr. O’Neil owns a neighboring rental property whose tenant has called the police or otherwise threatened to call the police. He stated that Mr. O’Neil has discussed this with the police department, and they have advised him to stay away. He stated that it is unclear whether the tenants have called the police. Mr. Bone stated that there are calls made to the police when Mr. O’Neil shows up at the property.

As outlined in the motion, the lawn was cleaned up — on December 2, 2022; February 16, 2023, the roof was cleaned. Mr. Bone stated that the police were called on these occasions.

Mr. Bone stated that once Mr. O’Neil was verbally made aware of this violation in January or that he did not receive notice until February 23, 2023, Mr. O’Neil attended the hearing. Mr. Bone stated that after the hearing, Mr. O’Neil maintained contact with the code department about the violations requesting orders and pictures. He stated that Mr. O’Neil attempted to gain access to the property, as was testified, that the tenant provided notices to code enforcement that he was going to terminate the lease. Therefore, he has attempted to do things that was testified to by the code officer to make progress to the property.

Mr. Bone, referring to his motion, stated the following timeline:

March 6 — the worker went to the property, and the renter told him at 9:30 am to go away that he had to give 24-hour notice.

March 7 — worker called the tenants to set up a time to visit the property and did not receive an answer.

March 8 — worker talked to the tenant and according to the worker, the tenant said that nothing needed to be done.

March 9 — worker attempted to go to the property and the police were called. Mr. Bone stated that he did not know who called the police. When the police were called, debris was being removed from the outside of the property.

March 12 — called the tenant to set up a work plan; no answer.

March 15 — tenants were called, and a message was left on the answering machine.

March 16 — there was no call back.

March 17 — tenants advised Mr. O’Neil and/or the worker that the wife had covid, so no workers had access to the property.

Mr. Bone stated that they want to coordinate with the tenants to address whatever issues there are.

Mr. Bone stated that it would be unfair to impose any fines being that Mr. O’Neil has not been able to access the property. He stated that moving forward if the tenants are unwilling to cooperate to allow access to the property, he will pursue the eviction process to remove them from the property so the repairs can be made. He stated that he advised Mr. O’Neil, based on the notice that he posted on the property, that he would not be comfortable pursuing an eviction with the notices that he provided. He stated that he would follow Florida statute Chapter 83 which would give the tenants proper notice to terminate the lease. If they pursue this avenue this week, the tenants are given 15 days prior to the end of the lease period, which is month-to-month, having them vacate the property by April 30, 2023.

Mr. Bone stated that if court proceedings move forward, it will be at least the beginning of June 2023, before Mr. O’Neil can have access to the property.

Mr. Bone requested the Special Magistrate to extend the time to come into compliance without the fine, providing the tenants are willing to cooperate.

The Special Magistrate stated that he wants to hear from the tenants and clarified that he is concerned only with the Motion to Continue submitted by Mr. Bone and does not need to hear evidence. He stated that he needs to know if the tenants have been in communication with them to gain access to make repairs.

Ms. Schmied, 1005 Aloha Way, stated that she has been living there since 2020.

The Special Magistrate asked Ms. Schmied if there was any attempt to contact her to fix the property by workers or anyone who was hired by Mr. O’Neil in the past month.

Ms. Schmied stated that there was an 83-year-old worker named, Hector, who is Mr. O’Neil’s next-door neighbor, who entered the property to fix one vent, and that she has the old vent with her. She stated that she gave him copies of all the code violations of what needed to be fixed. Ms. Schmied asked him if he had a business card or if he was licensed or bonded to do any of the other work, especially the roof and the ceiling. She stated that Hector replied that he does not, that he was doing Mr. O’Neil a favor.

Ms. Schmied stated that he gained entrance to the property without informing them or giving them 12 hours’ notice. She stated that they asked him if he was going to do any more repairs. She stated that, “he shrugged and said, again, ‘I’m doing Dan a favor. I don’t know what I’m here for’.

Ms. Schmied stated that they received a typed eviction letter, posed to look like an official document. She stated that she has copies with her, along with a copy of the image from USPS with the tracking number that he attempted to send certified mail, as well as the actual image of the certified mail. She stated that he posted this next to the code violations notice.

She stated that when Hector came and they asked him for any credentials, he wanted to walk about the house. She stated that they gave him copies of all the code violations and her husband stated that he would give him pictures of the areas that needed repair. They asked him if he would be able to fix the leaking roof. Per Ms. Schmied, he replied, “no”.

Ms. Schmied testified that they have never called the police on Mr. O’Neil whatsoever, nor when he comes onto the property without proper notice. She stated that she has lupus and is very sick. She stated that there is mold in the house and in the HVAC. She stated that they pay their rent on time every time and that he is trying to evict them by telling them he is shutting off their water on 4/4/23. She stated that the water is the only utility in his name. She stated that he is retaliating because he does not want to fix the property, he wants to short-sell it.

Ms. Schmied stated that they have done nothing wrong and could not attend the February 28, 2023, hearing because they both work. She stated that her husband works for the Department of Homeland Security, and she works for United Healthcare. She stated that they have given him two years to make the repairs. She stressed that they never withheld rent, or done anything to warrant this behavior, and that they just want to live in peace. She stated that she has injuries on her legs from when she fell through the floor, and that she has her medical records with her.

Ms. Schmied stated that there are no logs that they called the police. She stated that the neighbor called the police in mid-March because he was threatening and harassing her. She stated that they do not have a key to the home because Mr. O’Neil says the neighborhood is safe and they do not need one.

Mr. O’Neil commented from the back of chambers (inaudible). The Special Magistrate instructed Mr. Bone to address his client.

Ms. Schmied stated that they have a lease until 12-31-2023. She stated that he is trying to shut off their utilities illegally because he does not want to fix the property.

The Special Magistrate stated that it has been alleged that there have been multiple calls made to you by the worker trying to gain entrance to the property.

Ms. Schmied held a vent and stated that Hector entered the property to fix the vent. She stated that when they asked when he would be back, he shrugged and said, “…I don’t know. I don’t even know why I’m here…”

She stated that they asked what work he would be doing, and asked for a business card so they could contact him. She stated that because her husband works remotely from home with protected government information that they need at least 12 hours’ notice to ensure that there is nothing confidential in view. She stated that he had contacted them a few weeks ago stating that he would not be here, and for them to call him. She stated that her husband called him several times and there was no answer.

She stated that she when she saw him at the neighboring property, 1016 Aloha Way, working on screens, she asked him when he would be at their house and if he would be working inside or outside because the house has a lot of structural issues and a roof that needs replacing. She stated his reply was, “I don’t know; I’m just a handyman”.

The Special Magistrate advised Ms. Schmied that Mr. Bone would like, and is permitted, to ask her questions.

Mr. Bone advised Ms. Schmied that he is representing Mr. O’Neil and assured her that the water would not be shut off.

Mr. Bone asked Ms. Schmied if she did not allow the worker to walk around the property on the inside.

Ms. Schmied stated, again, that her husband works for the Department of Homeland Security. She stated they allowed the worker to walk around until they got to the area where her husband’s computer is located. She reiterated that they provided him with the code enforcement violations to give to Dan.

Mr. Bone asked if he has visually seen all of the issues on the code enforcement order.

Ms. Schmied answered that he saw the bathroom; he saw everything except her husband’s personal information.

Mr. Bone verified that it is the area where her husband’s personal information is.

Ms. Schmied stated that the room has no issues.

Mr. Bone verified that the worker was permitted around the house.

Ms. Schmied replied affirmatively and held up the vent that was removed.

Mr. Bone verified that he did the one vent. He clarified with Ms. Schmied that she testified that he requested “…to walk around and look, but she told him that he couldn’t because of the homeland security status….”

Ms. Schmied clarified to Mr. Bone that what she said to Hector was that he needs to give them 12 hours’ notice prior because they both work with protected health and government information.

Mr. Bone asked Ms. Schmied for her neighbor’s name and did she have covid.

Ms. Schmied replied that her neighbor is Carol Ward. She stated that she had covid last month, not Ms. Ward.

Mr. Bone asked Ms. Schmied if she knew how Mr. O’Neil knew that she had covid.

Ms. Schmied replied that Hector told him.

Nathan Zyontz, 1005 Aloha Way, Lady Lake, FL, stated that he is Jennifer Schmied-Zyontz’s husband. He testified that he could provide proof that he has been in contact with Hector. He stated that Hector has called early morning or later at night. Mr. Zyontz stated that there have been times when he has not had opportunities to return these calls. He stated that when he has talked with Hector, they discussed what he can and cannot do on the property.

Mr. Zyontz stated that his work schedule varies. His availability is negotiable and needs to be preplanned.

Mr. Zyontz stressed that there has been no plotted plan. He stated that Hector made it clear to them that he was asked to come to just “…quote, check things out.” Mr. Zyontz stated that he agreed and walked Hector around the exterior perimeter of the house, he was allowed to look at the bedrooms and the bathroom and the lanai. He stated he was welcome to do so providing Mr. Zyontz was able to close down his workstation. He stated that Hector chose not to, that he replaced the vent and said that he would come back another time. He stated that they agreed for Hector to return two days later approximately at 8:30 am, at the latest 9. He asked Hector what he intended to do, and that Hector said he had some to screens to put up for windows that were missing screening protection and asked which windows. Mr. Zyontz stated that he did not know which windows. He stated that he told Hector that he must begin work at 9:30. Hector arrived at 9 and he was advised that because he did not notify him that he was running late, that he had 30 minutes before Mr. Zyontz needed to excuse himself. He stated that Hector did not know what to do and left on his own. He was not forced to leave; he had access to the house and many opportunities to devise a plan.

Mr. Zyontz stated that he understands if there is a misunderstanding or miscommunication. He stressed that there is no intention to block or stop anyone from coming in to repair or to establish a plan to repair the violations in the house.

Mr. Zyontz stated that he understands and agrees with Mr. O’Neil’s attorney, wanting both parties to be in agreement. He stated that his biggest concern is Mr. O’Neil’s intention to evict based on his own negligence. He stated that there may be a loophole that he can use to evict them, yet they have a one-year lease, even though they pay monthly. He stated that they would need more than 15 days to move. He stated that they do not have the funds to move at this time and have been saving money anticipating Mr. O’Neil would remove them from the property. He stated that the only communication is through text messages, which is how Mr. O’Neil informed them that they needed “…to find a new address to live in.”

Mr. Zyontz stated that he is relieved that the water will not be turned off, yet he is worried that Mr. O’Neil will intentionally remove them from the house prematurely.

The Special Magistrate stated that this is a difficult case and made it clear that this hearing is limited in its jurisdiction as to the issues before him. He stated the threats of eviction is not within his jurisdiction.

The Special Magistrate stated that the goal of code enforcement is to achieve compliance. He stated that he is troubled by hearing the threats of eviction and the threat of turning off the water. However, there has been very poor communication and external circumstances that prevented the issue from being resolved.

The Special Magistrate stated to Mr. Bone, as an officer of the court, he is taking his statement very seriously that the water will not be turned off. He stressed to Mr. Bone that there needs to be workers of appropriate skill and expertise to be able to remedy the issues in this matter.

The Special Magistrate stated that he is denying the Motion for a Rehearing and will not continue the Order of Enforcement. It is his desire that the Order of Fine hearing will be continued to the April 25, 2023, hearing. At that hearing he wants to hear an update on this case and will determine at that time if it is appropriate to impose the fine that began accruing as stated in the Order of Enforcement or if it is his desire to change the amount of the fine.

The Special Magistrate expressed to Mr. Bone that his client needs to take this seriously, that there are fines at issue and he is giving him more time. He stated that it is his hope that both parties will work together and with the town.

The Special Magistrate stated if there is progress made by the April 25 hearing, he will consider allowing more time to accomplish the repairs.

The Special Magistrate stated that he will not make a ruling or enter an Order of Fine.

Ms. Crain asked if the daily fine would continue to accrue.

The Special Magistrate replied affirmatively.