By
letter dated January 16, 2015, the POR Board assessed a fine against me for
violating Rule Iv. B. (5) which requires us to “take all reasonable actions to
prevent m dog from being a danger, nuisance, or annoyance” to another Resident
or guest. By use of the word “reasonable”
the rule’s standard for conduct is that I must not be “negligent” in my conduct
as regards my pet. Okay, I accept that
the rule exists. I also would point out
that it is not a simple matter for the Board to find me negligent if they never
talk to two out of three persons in the small space in which the dog altercation
occurred. I do not believe I was
negligent, at all. I have said, however,
if there ever was a full, fair, and objective review of what happened and I was
found negligent by an objective group of three persons, then yes, I would shut
up and pay the fine. Nothing like that happened,
of course, as you will see in this post and the next.
The January
26th letter included the following statements:
“On
behalf of the Board of Directors of First Place Condominium Association…We have
communicated to you…after receiving all of the appropriate documentation from
the effected [sic] resident(s). We have
thoroughly reviewed the complaint, the rules for the Association, and the
statements from documented witnesses.
The findings of fact are that the complaint was valid, rule(s) were
violated, and the Association does have a duty to act on the matter.… While the
Board of Directors would like to voluntarily settle this event with the
investigation, findings, and a $50 fine, you do have the right to appeal in
accordance with the Association Rules & Regulations.”
For the record, it is absolutely crystal clear that the
Board did not have a complaint from a resident on hand when this letter was
sent. Every reference to a complaint and
an investigation of a complaint is a bald-faced lie. This is a fact that cannot be disputed. The Board also said it thoroughly reviewed statements
from the documented witnesses but it issued the fine assessment letter without
ever talking to me and I don’t believe they ever talked to the person who was
injured. This means they did not do the
work necessary to justify any sanction, much less the most serious sanction of
all. The letter is so full of lies it
should be shameful to the Board to have ever written it.
Rule
VI. C. authorizes the Board to take action on receipt of a written complaint by
(1) issuing a warning, (2) issuing a written request to cease the offending
behavior, or (3) levying a fine if that is warranted. When determining which of these actions the
Board should take, the Board is required by Rule VI. C (5) to take the
following actions:
a. The Board shall investigate
the facts before administering the fine.
b. The investigation shall be
fair and objective.
c. The investigation must
produce substantial evidence of the violation.
d. The rules and penalties shall
be applied evenhandedly and without discrimination.
e.
The
penalty shall be reasonably related to the seriousness of the offense and the
past record of violations.
Do you see our problem with this letter from the Board? Condominiums are difficult places to live,
especially the kind we have, where people are piled on top of each other and
need to use the same hallways, entrances, garage doors, and so on, every
day. Life is not easy for dogs here,
either, even if we have declared that we are “dog friendly.” Dogs get startled by quick movements. Anything moving directly toward a dog is a
threat to the dog. (Ever notice how dogs
approach each other—from the side, indirectly—at the dog park? Things do happen between dogs, their owners,
other dogs, and their owners. Dog owners
realize this and manage their affairs accordingly.
When the Board puts its nose into the affairs of dog owners
in the condo it should be really big news.
The Board needs to exercise its powers carefully in this situation, in
my opinion.
Anyway, it is obvious from the January 16th letter
and the related facts that none of these five steps and considerations were
undertaken or considered by the Board before the fine assessment letter was
sent. There was no investigation. Since there was no investigation it could not
be have been fair and objective. The investigation did not produce any results
because it never occurred. Given that
the parties to the dog altercation that the Board was referencing in its letter
completely resolved the matter and agreed that it was an accident on the day
after the event (on the morning of January 9th), was there even any
good reason for the Board to take action of any kind? I don’t think there was, but you may
disagree.
Our protest against the Board is about abuse of process by
the Board. It is a protest against Board
harassment of an owner for purposes of the Board President’s personal vendetta
against that owner. Our protest is
intended to remind our Board President that he, too, is subject to the Association’s
Rules. His lying about receiving a
complaint and his failure to do a full, fair, and objective investigation before
a fine is assessed are flagrant Rule violations and someone needs to speak up
and say, “Hey, Mr. Emperor, you are wearing no clothes.”
It is our effort to reinstate the rule of law in a
condominium government that has gone so far astray from the law and the
condominium association’s rules that it shocks the sensibilities of anyone who
becomes aware of these facts.
Our
position in this protest should be very clear by now: “We are mad as hell and we aren’t going to
take it anymore.”
I have a question and a comment. First my question. Let's say a resident reserves a common area such as the Theater Room. The resident causes damage to the room and leaves the room in a mess. Does the Board need to wait for a resident to complain before they can assess a fine to the resident. From what you are asserting, the Board has no power to enforce any rule unless a complaint is levied by a resident. Likewise, if somebody violates the garage door closing rule, the Board cannot issue a violation unless a resident complains about the violation?
ReplyDeleteNow to my comment. You are lucky that your dog didn't bite me....a $50 dollar fine would be the least of your worries.
Jeff,
DeleteHave you met this dog? It's around 15 lbs and very friendly. The only evidence I've seen in any of this drama to support that there actually was a bite, are vague emails suggesting a bite may have occurred, and acceptance by both parties that there was what may have been a bite, or a scratch, or something... Pictures? No. A statement by the person bit? Not that I've seen. Just to be safe, Dave B fairly and wisely, checked to ensure that if it was a bite, that the dog was fully up-to-date on all it's shots.
You live in a very pet friendly building and accidents do occasionally happen with even the best disciplined pets (I consider Bailey a very well disciplined dog). I'm disappointed that instead of acknowledging that you live in a pet friendly building, you'd rather levy a threat against the building's many dog owners.
Hi Tim,
DeleteThere is a picture of the bite. As I understand the incident, Mr. Kurtz's dog was surprised or uncomfortable being in a confined space with another dog and its owners. The dog bit a resident.
In my opinion, if a dog bites a resident/guest, and the matter comes the attention of the Board, it should be an automatic violation whether or not a complaint has been made by the resident. The exception to that is if the dog was somehow "provoked". To my knowledge, Mr. Kurtz has not claimed any provocation. He has been issued a violation with a de minimis fine. I'm sure that if Mr. Kurtz has additional information, he can provide it in his Appeal, if he chooses to attend.
Let's pose a hypothetical, what if an owner's dog bites a child in the elevator, or for that matter, bites your pet. It is unprovoked. You find out that the dog has done this in the past, the Board knew about it, but had failed to issue a violation. My guess is that you'd be a little upset that the Board had knowledge of the behavior and ignored it. But, because the dog seemed friendly and was only 15 pounds, "what's the harm?" One of the Board's most important functions is do what they can to make the building safe for residents.
We can split hairs whether the Board had a complaint when the resident informed them of the incident. As provided by the By-laws, they do not need a complaint when they become aware of a rules violation to cite it. That's what happened here.
What ensued was Mr. Kurtz trying to turn his around and become the victim. He's claiming that because the Board issued a letter that said they had a complaint (did notification by the resident constitute a complaint?), they should not be able to issue a violation and its a huge abuse of process.
Mr. Kurtz should have acknowledged responsibility, paid his fine and moved on.
If I were walking down the hallway, made a sudden movement toward your pet, even just to pat it on the head, and it bit me, I'd ask if he had his shots and hope nobody ever heard about my stupidity. I get it.
If your pet bites me while I'm walking in a hallway, then you minimize that fact, imply that I wasn't bit, maybe only scratched, you claim to be the victim and shirk your responsibility for your pet, I am going to be infuriated. Regardless of what the Board does, I will make sure you are held accountable. That is what I meant by my comment. My guess is that you would do the same. It's not a threat to the many responsible pet owners in the building, it's a warning if you're an irresponsible owner.
Mr. Kurtz is using this incident to continue to "grind his ax" against the Board. He has harassed them to the extent that one has decided to resign because of his nonsense. He won't use the processes in the By-laws to either recall the Board or run for office because he doesn't have support other than a small minority of residents. What this does is make people wonder "Why would I want to be on the Board?". Maybe that's what he trying to do.
Jeff: It is okay to have an opinion about how the Rules should be applied based on no accurate information whatsoever and without having read the Rules, but not if you are a Director of our Association. Then, you are accountable to a higher standard. You just go on blowing smoke and we'll keep laughing.
DeleteWell Harvey, the good news is that we've ALL gotten a good laugh!
Delete