Here's the Inside Poop on the Latest Denial of Due Process for Dog Owners at the POR

 One June 8, 2015, we requested the evidence of the Rule violation that was not included in our fine assessment letter.  We received nothing.  Eight days (three days later than required by the Rules) we got this so-called Tribunal Decision, revised and signed by Messrs. Rasmussen and Biggart, not by the Tribunal.  

We declined to appear at the so-called hearing because we had not been provided the evidence in advance of it, as is absolutely required under condo Rules and the rules applied to the hearing by Rasmussen and Biggart.  So, the hearing is a denial of our Due Process rights because it was held in the face of intentional failure to provide us the evidence in advance.  continue. 

My comments are in yellow.  We have paid the $50 fine under protest because we can't allow this harassment to control our lives and we do not intend to let it.  We have this matter by the teeth and we will not let it go until we feel safe in our home again. We are pressing forward with the condo insurance company to encourage them to investigate and with the employers of Mr. Rasmussen and Mr. Biggart to request them to ask for higher ethical standards from their employees while in voluntary community service, as they are here at the Point. Next, we will be seeking a lot more media exposure.  Something has to give in this harassment of us by their abuse of process and it is not going to be us. 

Right now, we feel that the use of the south elevator lobby is unsafe for any dog owner. We believe it is negligence on the part of the Board to fail to replace that solid door with a door with large window(s) in it so people can know what is waiting for them on the other side.  I have heard that others, particular women residents, also feel uneasy in that lobby and would like to see a door with windows for personal safety reasons, as well. If you agree please let them know.  

The link to the original PDF is in the next post after this.  

Decision

TO: FROM: DATE: RE:

POR Residential Committee, Harvey Kurtz, Richard Carballo Voluntary Tribunal Panel

7/20/2015

Appeal Hearing for Harvey Kurtz in regards to 4/13/2015 interaction

between Kurtz and Carballo animals, pursuant to Rule VI(D)  

Tribunal 's Scope and Purpose

The  Residential  Committee  and  Board  of  Directors  (collectively  the  "Board") asked  residents  of  the  Point  on  the  River  condominium  ("POR")  to  volunteer  for  a volunteer  tribunal  panel  (''Panel")  for  a  hearing  under  rule  VI.D.    Resident-owner, Harvey  Kurtz,  requested  the  Rule  VI.D  hearing  to  appeal  a  violation  issued  May  11, 2015.   The  Panel  was  empaneled  with  three  resident-owners  of  the POR  -resident­ owners Sam Brooks, Rick Engibous, and John Barlow.  The Board tasked the Panel with determining  if there was a violation  of Rule IV.B.5 by resident-owner Mr. Harvey Kurtz. The  Residential   Committee  empowered  the  Panel  to  make  the  final  decision  as  to whether there indeed was a violation of the above rule.

Decision Summary

The Panel hereby finds, by substantial evidence that Mr. Kurtz was in violation of POR Rule IV.B.5 of the POR Rules and Regulations on April 13, 2015, for failing to take “all reasonable actions to prevent said pet from being a danger, nuisance, or annoyance to any Unit Owner, Resident, guest or invitees."

Burden of Proof

Rule VI.D.2.e of the POR Rules and Regulations states that in an Appeal hearing conducted under Rule Vl(D), proof of the violation shall be by "substantial evidence." Rule VLD.2.e. Substantial evidence is generally defined as, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perc;les,  402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (197l )(citations omitted); see also, Sea

View Estates Beach Club, Inc. v. DOR, 223 Wis. 2d 128, 148, 588 N.W.2d 667 (Ct.App. 1998) (adopting Perales definition of "substantial evidence" in Wisconsin). Accordingly, this standard was adopted by the Panel to determine whether there was a violation of Rule IV.B.2 by Mr. Kurtz on April 13, 2015.

Hearing Details and Statement of Evidence Considered by the Panel

The hearing took place on July 19, 2015 at 10:00 A.M., in the Board Room at the POR. In attendance during the "Hearing" phase: K. Sam Brooks, John Barlow, Rick Engibous, David Rasmussen (Board Member), Joel Fleischer (Residential Committee Member), Dr. Richard Carballo, and Melissa Wise. See Rule VlD.2.c. In attendance during the "Determination and Decision" portion of the hearing were Sam Brooks, John Barlow, and Rick Engibous. See Rule VlD.2.d.

The Panel relied on evidence provided by the Board, including video recordings recorded by the security system in place at the POR on the night of April 13, 2015, and the Incident Investigation document provided by the Board. (Ex. 1) Additionally, audio evidence was presented by the Board of a conversation between POR property manager Laura Windpassinger, Harvey Kurtz, and Yvonne Larme. Testimony was also presented by  Richard  Carballo 1,  and  Melissa  Wise.    Richard Carballo is the owner of the otherAnimal involved in the incident. Both Dr. Carballo and Ms. Wise were present during the incident of April 13, 2015. Mr. Kurtz was not present at the hearing, and did not present any direct evidence, or offer any rebuttal to evidence presented during the hearing.2

Decision

After reviewing the evidence presented, the Panel determined that there was "substantial evidence" that Mr. Kurtz failed to take "all reasonable action to prevent [his] pet from being a danger, nuisance or annoyance." Accordingly, the Panel upholds the violation issued by the Board on 5/11/15.3 The Panel does not address the penalty assessed, as Rule VI.6.1.c. states that where a penalty has already been imposed, "the penalty will be upheld." Rule Vl6.l.c. Accordingly, the penalty assessed in the 05/13/15 violation will stand,

‘Richard Carballo was also issued a violation in this matter under Rule lV.B.2. Dr. Carballo subsequently paid his fine and did not request a hearing under Rule VI.D.

' Mr. Kurtz declined the invitation to attend the hearing, asserting multiple grounds relating to procedural defects in the initial complaint, as well as the 7/19/15 hearing itself. The Panel was charged only with determining whether or not Mr. Kurtz was in violation of Rule JV.B.2, and therefore does not address the validity or invalidity of Mr. Kurtz procedural objections. [Just where do all the Rule violations get addressed if not at the appeal? You have to go to court to get that reviewed.  Sound fair?]

'The Panel was informed that the violation issued by the Board was sent by certified mail to Mr. Kurtz on May 11, 2015.

The May 11,2105 violation is hereby affirmed. The BOD majority accepts the decision as binding.

Signed on July 24, 2015 by:

s/ Poul David Rasmussen
s/ Jerry Biggart

Exhibit A

INCIDENT INVESTIGATION:  Kurtz-Carballo dog bite incident

4/17/15

On Monday April 13, 2015, at approximately 8:40pm, there apparently was a dog-biting incident here at the POR.  This incident occurred in the 1st floor South hallway and the owners involved are:

1.  Mr. Rich Carballo (unit 618)

2.  Mr. Harvey Kurtz (unit 812)

What follows is the complete investigation of this incident.  [There was no mention in the fine citation received by Dr. Carbollo and me of a dog bite. This was invented after the fine citation and before the appeal. The Tribunal reviewed the wrong fine citation without objecting or noticing that they were not in compliance with the Rules. Had there been a mention of a dog bite I would have pointed out that Dr. Carbollo’s dog Rudy assaulted Bailey while Bailey was tightly restrained against the wall and whatever she did, if anything, was self-defense and that it is very possible that David Bagley’s dog did the damage.  His dog Huey was not in his arms; he was also on a leash in the middle of a brouhaha with Rudy when they opened the door and saw Bailey and me.]

[Strangely, this "complete investigation of this incident ignores my recorded 10 or 15 minute interview by Laura Windpassinger about the events of the dog incident.  Somehow, one might expect that to be part of the "complete" investigation. But it isn't.  Unbelievable! I was after all there; unlike David Bagley,who was definitely not there.]

WEDNESDAY, APRIL 12,2015 @ 7:12PM CST
I received a text message from Mr. David Bagley, owner of unit 8xx. I n it, Mr. Bagley asked me if anyone had reported a dog bite lately involving Mr. Harvey Ku rtz. You will remember that Mr. Bagley is the owner whose girlfriend, Melissa, was bitten on the leg by Mr. Kurtz's dog this January. [Not relevant and not accurate; Ms. Weland assaulted me and Bailey while pushing her way past us in a narrow doorway, bumping into my shoulder. She was carrying Huey, who was growling and snapping furiously.  He was just below her face and I thought I was being assaulted by a dog-faced monster.  I assume Bailey felt the same.  There was no evidence or hearing in that matter, either.] Our exchange is below:

Bagley:  Did anyone complainto u about Harvey1s dog this week?

Rasmussen:  No, Why?

Bagley: Noticed u have a camera by the south hallway by tuna exit. look at the video at B:40ish pm on Monday...u will see it bite another dog in the face...

Rasmussen:  Holy shit.  May I call you?

Bagley:  Sure

INCIDENT INVESTIGATION: Kurtz-Carballo dog bite Incident

[Note that our Rules do Not permit complaints by Residents unless the Resident observed the violation.  So Mr.  Bagley was not competent to register a complaint and what he said should have been disregarded because he did not actually see anything. Instead he is a prime witness and his testimony is believed and we had no chance to see the extent of his lies in advance.]

WEDNESDAY, APRIL 12, 2015 @ 7:28 PM CST

I sent Mr. Bagley's text to fellow RC members Joel Fleischer and Jerry Biggart. Mr. Fleischer, our main resident support person for our video surveillance system, reviewed the video clips and texted I back with a quick report.  Our exchange is below:

Fleischer:  It appears to be just off  camera. It was either rich and Melissa's dog or another home owner I don't recognize. 4 dogs in a  small  area. 

Rasmussen:  Can u talk?

Fleischer:  Yes, I have acquired the

 skill of talking

Rasmussen:  I did not want to assume that.

WEDNESDAY,APRIL 12,2015 @ 7:29 PM CST

Before I called my colleague, Mr. Fleischer, II called Mr. Bagley and he related his knowledge of the incident.  This call occurred at 7:29pm and lasted three minutes.  I asked Mr. Bagley to meet me in the 1st floor South hallway which he agreed to do.

We met in the 1st floor South hallway a few minutes after hanging up.  This is the first time I had met Mr. Bagley face-to-face.  We stood roughly in the location of the incident, which seemed to be within the scope of field of the POR camera near the Screaming Tuna service entryway adjacent to the trash doors.[This is just sick.  David Bagley was not present; he is incompetent to make a complaint; and Rasmussen is believing all his lies.].

Mr. Bagley told me he did not witness the incident, only its immediate aftermath. [So he has no basis for complaining under the Rules and should not be heard.] He said he came down, holding his dog in his right arm to take the dog out for its nightly "duty''. In the hallway, coming out of the elevator, [False; Huey was on the floor on a leash] Mr. Bagley encountered Mr. Kurtz with his dog on a leash. No words were exchanged between the two according to Mr. Bagley. [Oh, did Bagley forget to say he walked Huey past Bailey and me in complete safety, because I was holding Bailey around her neck against the wall to keep her away from the snarling and growling Huey and Bagley had Huey on an appropriately tight leash?  Did he forget that he walked right past us with no problem—and that any reasonable person could see that Dr. Carbollo could have done the same if he tightened up Rudy’s 9 foot leash, but he didn’t do that and maybe couldn’t do that because of Rudy’s size and strength?]

As Mr. Bagley continued, he encountered Mr. Carballo and Ms. Melissa, Wise with their two dogs. One of the dogs had apparently just been bitten in an altercation between one of Mr. Carballo's dogs and Mr. Kurtz's dog.  [This chronology is screwed up; Clearly Bagley and Melissa were not “just around the corner during Rudy’s assault on Bailey and Bailey’s self-defense, or we would have heard them. Both the Chihuahua and Huey are not quiet around other dogs.]

Mr. Bagley continued down the hallway to the South entrance, where he executed his intended task with his animal.

INCIDENT INVESTIGATION:  Kurtz-Clrballo dog bite 

Upon his retu rn, Mr. Bagley noticed Mr. Carballo and Ms. Wise attend ing to their dog that

pu rportedly had been bitten in the face. Mr. Bagley continued back toward the elevator. Mr. Bagley and Mr. Carballo do not know each other (testimony from Mr. Carballo later in this investigation).

Moments later, Ms. Melissa Meland, partner of Mr. Bagley, came back from an unsuccessful attempt to purchase yogurt across the street and noticed Mr. Carballo and Ms. Wise attending to their dog. They informed her of what had just happened. She informed them of her own incident with Mr. Kurtz's dog this January.[Her version; and did she say that on the day after the incident David Bagley put in writing that the bite (or scratch) was agreed by them to have been an accident and that no complaint was filed?  We know that no medical treatment was sought; and that it seems to be the case that David filed a fake complaint two weeks later at Jerry Biggart’s request?]

I thanked Mr. Bagley for his testimony and went back to my condo. [Mr. Bagley could not testify; he didn’t see Rudy’s assault on Bailey or Bailey’s alleged response. This wasn’t testimony under oath or Mr. Bagley committed perjury in addition to the felonious threat he made to the Larme Kurtz family on January 29, 2015, which we discussed at length with the MPD.] 

WEDNESDAY, APRI L 12,2015 @ 8:23 PM CST

To gain some clarification, I called Mr. Fleischer and he informed me of what he had just viewed on the video surveillance system. I asked to both meet Mr. Fleischer in his unit to view and the video and to meet  me in the  1"floor  hallway  where the incident occurred.  This call  lasted  1 min ute.

WEDNESDAY, APRIL 12,2015 @ 8:27 PM CST

On a hunch that Mr. Fleischer was correct in his speculation that the owner of the dog that was bitten was "Rich and Melissa", I called Mr. Carballo and asked him point-blank if Mr. Kurtz's dog had  bitten  one of  his dogs two  nights before.

DISCLOSURE:  I have shared a number of social experiences with Mr. carballo over the past few years and have a positive relationship with him.[Then let someone else interview him, right?  No; not an option for a control freak out to shoot down an enemy.]

Over the next 14 minutes, Mr. Carballo described the incident to me over the phone. His answer was "yes", Mr. Kurtz's dog had bitten his dog as he and Ms. Wise were exiting through the door that leads to the elevator lobby on the 1"floor, South hallway. [I am pretty sure Dr. Carbollo knows Melissa was NOT with him in the elevator.  Isn’t it interesting how much of this “evidence” is inaccurate?  Is that why it was not disclosed to us before the hearing?]

I asked Mr. Carballo if he wished to file a violation form for the incident. 

[This is David Rasmuussen using his official powers to do whatever he can to harass Harvey Kurtz.  He is acting on disqualified information, trying to “get” Kurtz.  This is abuse of power plain and simple.]

He said he did not report this incident and will not file a violation claim because the injury to his dog was not severe (a puncture wound and blood in the dog's mouth) [thanks for that editorial comment Mr. Rasmussen. Dr. Carbollo told me it was a "nip"and nothing to be concerned about, when I asked him what was going on after I was contacted by L. Windpassinger for an interview.] and because, given the POR's recent past with Mr. Kurtz and Mr. Bagley's incident, he did not want to disrupt the "harmony'' (my word) [and what was Dr. Carbollo's word?   and why did you tell me my interview had to be tape-recorded and his would be also? Mine is tape recorded.  It isn't mentioned in this "investigaton, though.  Why not?] of the Association and that it "would not be good" for the Association if he did file a violation. [But, did he tell the truth and say Rudy assaulted Bailey first because he did not shorten up Rudy’s leash?  Maybe; maybe not.  Can we trust Rasmussen to be telling the truth?  I don’t.]

During our conversation, Mr. Carballo related that neither of his dogs had ever bitten another dog or a person and that Mr. Kurtz’s dog was the aggressor in this incident. [This part of the sentence is absolutely untrue.  Bailey was at the wall with my grip as tight as it could be at her harness neck.  David Bagley walked by with an out of control Huey on a short leash without incident.  I don’t believe Dr. Carbollo told this lie; I forgive him if he did because this mess makes good people do crazy things.] However, he emphasized again that he did not want to file a violation against Mr. Kurtz ad was headed to Florida tomorrow to visit his father who is gravely ill.

INCIDENT INVESTIGATION:  Kurtz-Carballo dog bite incident  
I wished him the best of luck with his visit and his parent and thanked him for his candid [so long as it’s bad for Kurtz, it is candid; if it is good for Kurtz it is ignored.  This investigation was supposed to include a transcript of my interview with L. Windpassinger, but it does not. The reason presumably is that it tells a very, very different story.  I was not lying. ] testimony. and his desire to promote harmony at the POR. [How sweet and irrelevan]I told him we may need to talk to him again as part of this investigation.

WEDNESDAY,APRIL 12,2015 @ 8:42 PM CST

I called Mr. Fleischer back and apologized for my tardiness in meeting him. Mr. Flesicher then met me down on the 1st floor in the hallway where the incident occurred. After discussing the camera's field-of-view limitations, we went to his u nit to view the video footage.

[Don't you love the time entries above?  Remind you of Dragnet? Believe it?]

STILL-FRAME SUMMARY OF INCIDENT-FULL VIDEO CLIPS AVAILABLE

Below are video screen captures that best reconstruct the incident: 

[I can't get them to show on the blog;  The comments and the pictures are totally irrelevant, but you do get the flavor of the intent to harass and the bias from the commentary and its "editorial" content. My editorial comments are in yellow.

1.  Mr. Kurtz is walki ng towa rd the elevator with his dog:

[The leash is not even six feet long; there is a lot of distortion here.  Note that she is on a harness. Provides excellent control. Yes, she sniffs at all the spots on the floor.]

INCIDENT INVESTIGATION:  Kurtz-Carballo dog bite incident

2.  Something occurred outside of the camera view that caused the dog to be thrown back:

[The commentary is prejudicial and hysterical. My guess is Bailey wanted to go into the trash room and I was dragging her away. As a rescue dog she has some odd food preferences. Of course she wasn’t thrown back, but the trash room there does wreak so it may have smelled "delicious".]

3.  Mr; David Bagley walks by, noticing the aftermath of the incident (carrying his dog):

[Very interesting.  How can anyone know (a) if that is Bagley and (b) what he is or is not noticing?  He already said he didn't see anything.  We are being given interpretations that are unsupportable and by an anonymous person, to boot.  Bagley did walk past me at the door switch on the outer side of the door with no windows in it with Huey on a leash, in perfect safety because I had Bailey by the harness at her neck, up against the wall.  What that has to do with this picture is not at all clear.  Why doesn’t the picture show him grabbing Huey up from the ground ?  Then it would be clearer that he got past us with no problem.  So, if Huey got past us with no problem, why was it that Rudy did not?  The answer is that Rudy was on a nine foot leash and he was able to reach Bailey.  At a 40 pound advantage Rudy was pretty frightening and Bailey defended herself.  I didn't see it because my head was against the wall and I can't turn it very far around after my neck fusion.]

INCiIDENT INVESTIGATION:  Kurtz-Carballo dog bite incident          

 4.  Rich and Melissa examining their dog's injuries:

[And where is the proof that they are examining “injuries”?  Who made that uninformed statement? And how do we know Bailey did the injury?  Could have been Huey.]

[Melissa must have come in the south door to meet up with Rich. She did not go out from the elevator with him. She saw nothing relevant to Rudy’s assault on Bailey and Bailey’s defense of herself. She has nothing relevant to say, except perhaps that I have seen her on at least two unpleasant occasions with Rudy and he is stronger than she is.]

The absolute bottom line of this evidence is that the camera shots  establish no relevant facts but the commentary disclose complete and total bias against us and that David Bagley's hearsay input is taken as gospel when it is largely lies.  It does not even establish that a dog bite occurred. The commentary is an assault on our due process rights because it is designed to create an impression that is not in any way supported by the pictures.

The sole purpose of posting this material and these photos is to emphasize this point.  Under the Condo Rules all of the evidence must be obtained and analyzed before the fine is assessed and the fine assessment notice must describe the “substantial evidence” on which the fine assessment is based.  In addition, all evidence must be disclosed to the people appealing the fine before the appeal hearing so they can be well prepared to make their arguments. None of this happened.  There was “evidence” but it was intentionally withheld from us before the Hearing so we could not properly prepare. 

Why, Mr. Rasmussen and Ms. Windpassinger?  Why did you withhold the evidence?  Was it to make sure we would refuse to attend so you could get the victory you so unjustly deserve?  Let’s have an answer!

We are mad as hell and will not take it anymore.

INCIDENT INVESTIGATION:  Kurtz-Carballo dog biteincident