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.
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
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.]
[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
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
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?
Rasmussen: Can u talk?
Fleischer: Yes, I have acquired
the
skill of talking
Rasmussen: I did not want to assume that.
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.
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?]
[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
