Board of Health - Regular Meeting

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Good morning and welcome to the Wednesday, 02/11/2026, meeting of the Board of Health for the City of Appleton. We call this meeting to order. Next, let's do the Pledge of Allegiance. I pledge allegiance to the flag of The United States Of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. Roll call of membership.

Let it show that everyone is here except for our chair, Kathy Spears, is excused. And Alder Wolf is here virtually. Next, item number four, approval of minutes from the previous meeting.

Move approval.

Second. All right. Any corrections or changes or anything that needs to happen with this? Wonderful. Let's go ahead and vote. All those in favor signify by saying aye. Aye. Any opposed? Any abstentions? And that passes. Next we have no public hearing. Do we have any public hearings or appearances? Anyone wishes to speak? We don't have a sign up sheet available here. This is a public hearing. Is there anyone who wishes speak? Wonderful. We can close that and move on to action items. Number 260025, Hearing on State View Commons Appeal of Order to Cease and Desist Operations. Do I have a motion?

I think given that it's a hearing I don't off on a motion.

Okay. Wonderful. I will turn it over to attorney Gladden.

Thank you. So I'm, Darren Gladden, assistant city attorney. This hearing is for the appeal of a health department's cease and desist order as it relates to the property known as State View Commons. Recognizing that this type of appeal is pretty rare for the board, I just want to confirm with the chair that the following process is acceptable. So first, city staff will provide a summary of its position.

My understanding is Todd Schmidt from the health department will be doing that. Then the appellant will have an opportunity to explain their position on the appeal. Board can then ask questions of the people present. Board can affirm, modify, or set aside the cease and desist order. The board is allowed to deliberate in closed session, but will vote in open session as to its determination on whether to affirm, modify, or set aside the cease and desist order. Written determination will be provided to the applicants given that this is this is a hearing. Everyone who speaks needs to use a microphone and only one person should be speaking at a time. Is that procedure okay with the chair?

Yes. All right. So according to this procedure, we're going have the city staff provide a summary of its position. So are we having environmental health tech Schmidt up first? Wonderful. What microphone do you have?

Todd, which mic is that?

What's on the label? Thank

you.

All right, good. Good morning, members of the board. I'm Todd Schmidt, enforcement agent for the Appleton Health Department responsible for the oversight of tourist rooming house licensing. I'm here to provide a summary of the facts leading to the cease and desist disorder issued Keystone Futures operating as State View Commons and to explain why the department recommends denying this appeal. Our department began a focused effort in January 2025 to ensure all short term rentals met basic safety and licensing standards.

You might remember, I was before this board almost exactly a year ago talking about the progress and hurdles that we faced, especially when it comes to commercial properties wishing to squeeze into a gray area under the more relaxed TRH rules, which were originally meant for residential single family homes, offering rooms for rent. While most of these commercial properties we flagged before voluntarily chose to either become compliant or shut down as transient lodging, today, we're here to review the cease and desist order the department issued to State View. In March 2025, it was determined through an internal joint investigation with the Appleton Fire Department and the Commercial Inspection Division that State View Commons, a mixed use building with four units above a commercial space did not meet the building and fire codes required for transient lodging. The units originally permitted for long term tenants, which is an R2 designation resident or transient lodging is an R1 through the international building code, which carries a higher risk profile and more stringent safety requirements. Neither Keystone futures nor the previous owner had ever initiated a plan review or the change of occupancy notice to city staff to allow for the current transient lodging.

On May 2025, I notified the property management for safety comments that significant updates were likely required before the twenty twenty five, twenty twenty six license could be issued. I was clear without a clear intention to complete commercial updates, the license would not be renewed and does not meet code. Without notice of any work or a change in use or the engagement of a fire safety consultant to determine the updates needed to achieve code compliance, the TRH license expired on 06/30/2025. Despite conversations and clear notice from us that they lacked required occupancy permit, Keystone Future is elected to continue to operate illegally without a health license. Consequently, a month after the unpermitted operation, the health department issued the order to cease and desist on 07/29/2025.

The appellant filed this appeal on 08/28/2025, including an interim safety plan. In an effort to be flexible, the city offered a conditional licensing agreement on July, 09/18/2025. This would have allowed the continued operation while the owner worked with professionals to achieve that r one compliance in an effort to be fully licensed again as a TRH. We received no further communication from the appellant regarding this agreement. They did not sign it.

They did not post propose changes. What they did do was relist the property on a different online marketplace switching to booking.com rather than Airbnb and continue to accept new bookings. All measurable deadlines in that proposed agreement have now passed without any progress shown towards compliance. The health department's primary obligation is protect public health and life safety. The facility continues to operate illegally today with no agreements in place regarding the health and life safety.

Because the owner has shown zero effort towards compliance and has caused several delays through inaction, the staff no longer views a conditional license as a viable option. We respectfully request that the board deny the appeal and hold the cease and desist order without modification. The order should only be permitted or the owner should only be permitted to apply for a license again once full R01 compliance is achieved and verified with our Inspections and Fire Division.

Thank you so much. Do we have any questions for Mr. Schmidt? Since we have no questions, thank you very much. Who will we have next to speak? Or do they have to have questions? I'll allow that, I guess. Go ahead.

I think they want to speak. Statement. Okay.

Let me just go ahead and get your microphones on if you'll be patient with me for one moment.

Just

taking a moment to get your microphone. Okay, gotcha. All right.

So I'll be speaking from the podium. Wonderful.

And if you can just state your name for us.

Sure. My first name is Robert. My last name is Arthur, A R T H U R. I'm an attorney and I'm with Arthur Law Office. Wonderful. Thank you. Please proceed. All right. So good morning, Chairperson Spears. Are you Kathy Spears?

I am not. I am Vaia Jones. I am filling in for Kathy I

can barely hear you from over here. That's what I thought I picked up. Okay. But I wasn't sure. And Mayor Woodford, members of the board. My name is Robert Arthur. I represent Keystone Futures LLC doing business as State View Commons, which is the property at 532 West College Avenue. With me today are Shane Forrest, who owns the building with his wife, Jen, and Mark Bisak of Powerhouse Properties nine twenty, who manages short term rental properties. I want to begin by thanking the board for its time and patience with this matter. And I also want to begin with an apology.

I delayed this board's consideration last month, and I owe you an honest explanation. For several years, the last several years, I have served as financial power of attorney and health care surrogate for an elderly family friend in Florida. This woman had advanced Parkinson's disease since, well, she was diagnosed with Parkinson's in 2010. In the first week of January, she began to suffer multiple emergency medical transports. And I had traveled to Florida three times, twice at the last minute, to fulfill my legal and fiduciary duties as her power of attorney and health care surrogate under Florida law.

During my last visit on January 29, she chose to discontinue her medications and enter hospice. She passed away last week. I share this not to ask for sympathy, but to correct the record. The January continuance was not a tactic for me to delay this proceeding in any way or the adjudication of this appeal. It was to fulfill an obligation under Florida law that I could not delegate.

I accept full responsibility for the delay, and I apologize to the board and to city staff. With the board's permission, I would like to walk through the timeline of this matter because I believe the full picture is important. And at this point, I'd like to reference the handout. And you have a lot of materials today. But there's, I believe, this case occupies pages eight through 73 of the packet you got before, but I gave you a two page handout today which has a condensed chronology of events on the first page.

And then there's some costs on the second page on the reverse and then some key points along with them. And the second page is a memo from Mr. Forrest. But I reference that handout now. Shane and Jen Forrest are a young family.

They purchased 532 West College in October 2021 for much more than it was worth now from a friend as an ongoing operating investment property. The 1st Floor was a fully permitted co working space, fully remodeled and permitted. The 2nd Floor had four, I believe they're all one bedroom. Shane, is that correct? Are they all one bedroom?

Two two bedroom, two one bedroom.

Okay. Sorry. I correct the record. Two are two bedroom, two are one bedroom units that had been operating as short term rentals since 2019. So since before Shane and his wife purchased the property, all with city issued transient rooming house health licenses renewed annually.

There was no indication of any compliance issue at the time of purchase. The prior owner, not the Forrests, converted those units to short term rental use without obtaining the change of occupancy review that the building code requires and that Mr. Schmidt referenced. For nearly four years, everyone after Mr. Forrest bought the building, everyone proceeded as though its use was properly authorized.

When the city created a new compliance position in January 2025 I believe that is Mr. Schmidt and identified this issue, Shane tried to get answers. He reached out to city inspectors in May. One of the inspectors told him in June that no action was needed because no permit had been sought, which was was true. When those units upstairs, those two two bedroom units and two one bedroom units, had been converted to short term rental, really that was just calling them different names.

There was no permit required because there was no work requiring permit done on those units. So Shane relied on that. Then the license expired 2025, and the cease and desist followed in July. So I want to be clear. The forests are not disputing that there's a compliance gap.

They understand, and I've explained in excruciating detail, the building code issues that Mr. Schmidt referenced. They're not asking for the board to ignore the building code. What they're asking for is that the board understand the full picture, including the good faith that these owners, the steps that they have taken and the extraordinary costs that are involved. So the staff memorandum in your packet states that no effort toward compliance has been shown by the owner.

Respectfully, that is not accurate, and I'd like to correct it. Within days of the July order, Shane retained me. Within weeks, he had an architect on-site. By the September, he had two competitive sprinkler quotes and a firearm estimate. By early October, the water lateral quote arrived.

He also explored elevator costs, not because the requirement for an elevator was flagged in any of the fire department communications, but out in abundance of caution. Because when I looked at the things that are required to change to R1 tenancy, an elevator could have been required. And we needed to at least understand what those costs would be. And by the way, all those costs are summarized. The quotes are in your packet that you received, the full quotes, but a summary of those quotes is in the handout on the reverse page in that table cost context compliance estimates v property value.

What Shane discovered is that the minimum cost to bring the building into full R1 compliance sprinklers, alarm, water lateral, is at least $132,000 That is roughly 24% of the building's current value. If an elevator is required, the total approach is $500,000 nearly the full value of the property. The property today, if you look at it on various realty sites, and I know commercial property values are difficult, You can't necessarily get them from the internet. But if you look them up, the building is worth today around $550,000 which is quite a bit less than Mr. Forrest bought it for.

The city's own compliance officer, Todd Schmidt, wrote in May 2025, in an email which is in the record, that, quote, most operators find this step cost prohibitive and just go back to long term tenants. This is the reality my client has been trying to navigate. Client can go or Mr. Forrest can go more into this. But the difference in cash flow for the mortgage that he has to pay and the revenue that he would get from long term rental versus short term rental is large.

And it is really the difference between them being cost viable and not. So it not an inconsequential thing for him to go back to short of long term rental. It is substantially less lucrative. I'd like to touch on the conditional license issue. I know the board is aware that the city offered a conditional license in September and that it was not signed.

I want to take full responsibility for that. When I received the conditional license draft, my client did not yet have complete cost information. The last quote didn't arrive until October 3. And I should also add that these quotes were very overwhelming from Mr. Forrest and his wife.

I encouraged him to get these quotes because I was trying to encourage him, saying it might not be as large as you think they'd be, things like that. But they were actually larger than I was thinking they would be and larger than Mr. Forrest was thinking they would be. The conditional license required my client to commit to a compliance path and also to waive certain rights, including, I believe, the right to continue with this appeal. Before he knew whether compliance would cost $20,000 $50,000 $100,000 $200,000 he had no idea what he was going to commit to in signing that conditional license at the time it was offered.

So my mistake, which I own up for, is not going back to the city, going back to Attorney Darren Glad to negotiate or to ask for more time. And the reason for that is this year I have an honor. It has nothing to do with this case or this type of work. But I am the president of International Legal Association, and I am offered actually, not so I'm offered, but I'm obligated to speak at a number of legal conferences. And these all happened in October and early November.

So I was traveling constantly in October. And at one of these professional conferences, I also got the flu. And I was sick until Thanksgiving. So by the time December rolled around, all the deadlines were almost past. And so that communication gap is on me.

I should have reached out at some point during those travels and said, hello, Attorney Glad. My client is reluctant to sign these because he's really not sure what he's getting into. Something to that effect, I did not do that. So I realized from the board's perspective, from Attorney Glad's perspective, it looks like we weren't doing anything. There was no communication.

That's on me. We actually were doing things and I apologize for that, the way that looked. So before I would like to ask Mr. Forrest to talk, Shane, but I'd like to ask Mark Biesek to speak briefly about the role State View Commons plays in Appleton's short term rental landscape and in the West College corridor. So Mr. Biesak.

If you could just state your name for the record, that'd be wonderful.

Of course. Yeah. Mark Biesak. I am the founder and owner of Powerhouse Properties in Appleton, Wisconsin. So good morning, Mayor Woodford, all the members that are here today. Back in 2019, I started this company. I was a chef for twenty three years, made the transition to managing properties, which I never thought I'd do. I currently have 60 properties at our peak. I oversaw 120 short term rental properties. I exclusively manage short term fully furnished properties.

I don't do any dedicated long term or unfurnished rentals in the area. I was originally hired. I met the original building owner, Mike and Jenna Lee, when I was looking for a office when I made this decision to start this company, I rented an office from them at their co working space downtown, which is State View Commons. They mentioned they had a unit upstairs and asked if I would like to manage that for them. At the time, it was just the one unit.

After I started managing that, they then took the time to fully gut and remodel the remaining three units there, which was pretty extensive. When the building changed hands to Shane, I continued to manage. I had met with him and I continued to manage the units for him. One of the biggest questions I get whenever I tell anybody that I manage short term rentals in Appleton is who's renting an Airbnb in Appleton, Wisconsin? Because at first glance everybody thinks vacations, Disney, any sort of kind of tourism specific spot.

But the reality is that pretty much anybody and everybody are renting whether it's travel nurses, doctors, people coming for treatments at any of our local hospitals, the cast members of the Performing Arts Center, all four units at Mr. Forrest's building right now are currently occupied by different cast members of Hamilton. Every single PAC show that comes, all four of his units are filled with cast members or crew members who often don't have vehicles. And the way that their contracts work, I actually invited them over for dinner a couple years back, members of the Lion King cast. They have a fifty two week contract.

That fifty two week contract is offered to them as renewed at the end of the year based on performance, but they don't go home. They don't really have a home anymore. Their home is wherever they're staying at, whatever city they're staying in. So they travel with giant totes of their personal belongings and their ingredients. And they might have one or two people that they always like to room with, so they often take the buyout instead of staying in a hotel, which would get very old over the course of a year, and instead choose to stay in a house or a more fully furnished kind of scenario and also something that is close.

There are no closer units to the stage door than the four units at State View Commons. Mile Music is another huge draw for our community and the musicians that perform there as well as people who come to see the shows. There are even many people within our community who decide to stay downtown for that week instead of driving in every morning and trying to find parking. So people will be like, Oh, we live on the other side of Appleton, but we actually just want to be down there for all the action and to be kind of in the middle of this great event that we have here in the city. So in the past four years, some of these numbers are outlined in your packet.

In the last four years, we've hosted over 1,300 guests at these units. That's over 2,800 rented nights. One of the things that people might not know about short term rental properties when they're licensed appropriately is that we also are remitting state and county tax as well as lodging tax which is what the hotels are admitting. It's a 10% tax. So if you look at over the past four years, we have remitted $37,000 plus in lodging taxes and over $20,000 in state and county taxes.

So all that money is put back into the community and to the places where it's supposed to go. It's worth noting that if these were long term rentals, number would be $0 not $57,000 A 2024 economic spending impact report from Airbnb talks about the amount of money that guests are spending in the community that they're staying in. So the typical guest is spending $775 per trip or $210 a day on local goods, services, things like restaurants, entertainment, shopping, and that excludes the cost of the accommodations itself. So nearly 50% of that spending is staying in the exact neighborhood where these people are staying. So that means that everybody who is staying at Mr.

Forrest's apartments are spending their money at Acoca right down the street at the coffee shop. They are going to see a show at the PAC. They are maybe coming here for our great farmer's market or Mile of Music. They're eating at our restaurants. They're participating, bringing their kids to the children's museum.

All of the things that make Appleton great, they are pouring money into that. To give a little bit of a picture of Shane as an operator himself, I feel like it's worth speaking to this as I do feel like the Appleton Post, President article maybe lacks some of the background information. He's been very professional from the start, wanted to meet with me, wanted to know how our company operates, how we take care of the people that come into our units. He's extremely committed to maintaining and improving the building. One of the things that's different for about an Airbnb versus a long term rental is every single guest who comes in the property has to look that photo perfect for every guest that walks in.

So we have to maintain it. We have to continue to improve it. We have to fix every little thing that goes wrong because otherwise we are risking a guest coming in and saying, it was great but it was kind of cold in there. The heat doesn't work very well. That's not always the case with a long term rental where sometimes those things can be kind of let go.

He's also a huge partner with the downtown area in terms of being a part of Oktoberfest, licensed to cruise, and Mile of Music. If those of you know our building, you've seen the giant logo on the side of that. And he, more than anything, wants to be a contributing piece to the amazing patchwork that makes up the downtown area. I want to leave you with just a couple numbers. So we talked about the total lodging taxes, state and county taxes being $57,000 if we calculate out that economic impact that was from that 2024 study across the amount of guests that we hosted for the amount of nights that we hosted them, that economic impact spend is 1,050,000 over the course of four years.

So if we add the lodging taxes and county and state taxes to that, we're at 1,100,000.0 over four years or roughly a quarter of $1,000,000 a year from four small downtown units. That is money that is being poured into our communities, supporting our small businesses, supporting all of the things that make Appleton great. I was going to do a little like class participation thing where I said like, what makes Appleton great? Name a couple things. I think of Lawrence University, I think of the Performing Arts Center.

I think of our amazing hospitals that we have more than just one of them. I think of our farmers market, Mile Of Music. Things that like should be in a much bigger city but are here. And it's very easy to forget that these things that make our community great are supported by people coming from outside of our community to be a part of them. Thank you

very much.

Chair? If I may just ask a question for Mr. Bisak. Yes, sir. We could back into this number, but given the remittance of taxes, could you just give us the total revenue number for the rental property?

If you give me a moment, I can pull it up here. Yep. It's pulling up a message here where I know I had sent it. So total revenue, this is including taxes, this is including cleaning fee, this is kind of like the top line number before management fee is paid, before all these other numbers. You're at $372,000 If I could add just one thing by comparison, if you look at like a, I looked at next weekend for

a

two night stay at the Paper Valley downtown, total cost all in with taxes and everything was $400 At our units, it's roughly $300 So it is offering a more affordable option and way for people to maybe not stay at a budget hotel that's out near the airport, but instead stay downtown where they don't need to rent vehicle, they can walk to all their

events and spend their money. Thank you. So again, about $320,000 gross? $375,003 75,000

gross?

Okay. Thank you. Yes, sir. Thank you.

Attorney Glad, procedural question. If I have questions for any one of these individuals, do I wait until they are all finished speaking, or should I be asking after each individual?

I think it's really at your purview, but I think whatever method you choose to do, just be consistent with that.

Okay. I think we'll let each individual speak and then we can ask

our questions.

Wonderful. Okay. So before I turn it over to Mr. Forrest, I just wanted to highlight two things. The first is in your packets, that pages eight to 73, the last 23 pages are photos.

The first photo is a photo, if you haven't seen it, of the outside of the building is the mural we're talking about. And then a lot of those photos are actually the photos that Mr. Bisak uses to market the units. The second thing I wanted to point out is that I believe it's in Attorney Glad's analysis, but the reason why we're here at the Board of Health talking about this issue is because in the Appleton Code that you all operate under, there's a section adopted from the state law, I believe, that requires building and fire code compliance. I believe it's one sentence.

Attorney Glad, is that probably about right? In the entire code. It's a little section that essentially ties what this board normally deals with, which is like sanitation issues, typical Board of Health type of issues, to that's how building and fire code issues are coming in to this issue. And I point that out because short term rentals are professionally cleaned every single turnover. And Mr.

Bisak, I know this because I should also claim my office is in State View Commons. My Appleton office is in State View Commons. So I pay Mr. Forrest rent every month. And I see when Mr. Bisak's office was in there, I would also see the cleaning crews coming and going. So I don't believe there's any sanitation or typical health code issues before this board in this case at all. This is really a building in fire code issue. So I wanted to point those things out because Mr. Bisak was talking about cleaning fees and things like that.

But at this point I'd like to turn it over to Mr. Forrest, and then I'll come back up for some brief closing remarks. Shane, would you like to share with the board how this situation has affected you and your family?

And again, for the record, if you could state your full name, please.

My name is Shane Forrest. I'm the owner and operator of State View Commons, Keystone LLC. Thank you for the time and the opportunity to speak to this. I kind of want to just focus on more of the personal impact to me. Feel like Robert and Mark have done a really nice job of kind of laying out the timeline, the details, the facts behind it.

But I kind of largely asked Robert if I could have a chance just to speak to how it's impacted me and my family and kind of just the look of it from the outside has been frustrating for me. So I kind of want to preface it by saying I understand that purchasing this building and purchasing the business with it is very much a risk that we chose to take, a calculated risk in my mind, but a lot of thought and effort went into it. And for me it seemed like a good decision for my family financially, my interest in entrepreneurial endeavors, growth as a person. So I'm very much aware that with that comes risks and challenges. And so I'm not here to ask for sympathy of, you know, something difficult has come up, more of just an opportunity to consider the scenario as a whole, the efforts that have gone into it, the state of the building, what we're trying to accomplish, and just of the entire picture of it.

And it felt like particularly when an article came out several weeks ago, It was very frustrating and hurtful to me and my family to be painted in a light of not communicating with the city, kind of ignoring the situation and just choosing to sit on our hands and do nothing. When this came up, it was very serious to me, very concerning. I understood the weight of it, maybe not financially at first, but I understood, you know, given my career in business and in both entrepreneurial endeavors and the day job, I knew it was a very serious thing. And so it was important to me to get on it quickly and communicate with the proper authorities that were driving things. And if nothing else, give the image that it was important to me and I cared and I wanted to work to make it right.

As Mark pointed out, the reason I got into this was to create something that I thought was unique that offered something valuable to the Appleton community. And to ignore the city's requests and information that they sent me about needed changes, it just would not have been a smart move at all. So I think Robert kind of laid out the communication path. I won't go back into that. But it just to have that come out and paint us as in a sense, felt like slumlords that just kind of didn't care and we're gonna just continue to operate with no awareness or acknowledgment of the requirements.

It just was not accurate and it was very frustrating. And I think it has an impact on our business as well. I have tenants in the office that said they got contacted by clients saying, hey isn't this where you rent an office from? You know, this guy sounds like a real asshole. Why didn't he just fill out a form?

It was it was not something that created a good look for us and it was very concerning that like who who's gonna wanna come and rent a office or a room at State View when there are, you know, health code issues that it sounds like I have ignored. And it just, it was concerning from a business standpoint, from a personal standpoint. Was very frustrating, very stressful on my wife even though I said, don't go read the article, don't go read the comments. First thing she did was rent and read the comments, right? They weren't a great look.

So that was really hard to go through that and tell her keep in mind that this article doesn't paint the whole picture, right? And we didn't even get a chance to make a statement in the article or comment at all of what we have done to try and work with the city to get this right. And granted it wasn't maybe as fast and on the timeline as we had all hoped, But it was efforts nonetheless. I didn't feel there was any point in time where I put it to the side and said this isn't important, I'm going to ignore it and hope it goes away. So the financial impact to us is very real.

The things that are being asked to add to the building in comparison to the cost of the building itself is very difficult to see a path to making that happen. To recover those costs at any point in time would be a long ways down the road. Yeah, I just ultimately wanted to find a way to work with the city, meet the requests, continue to offer what I feel is a safe and great valuable place to stay in Appleton and continue to bring people to our community. And I would like to continue to work towards that. It's just very difficult to do it given the financial cost of the things that are being asked right now.

And so that's kind of where Robert was hoping to help me find some way to get a variance through this or whatever it may be to continue to work with the city to find a solution that we can accomplish and continue to do what we've been doing and offering great service to the community, I think. So that's my hope. Thank you for the time. I appreciate it.

All right. So I want to close with three points because I know you have a very full agenda today. The first point is that these owners have acted in good faith. They bought a building that the city had a history of licensing for short term rental use. They didn't create the compliance gap that we're addressing here today.

When they learned about it, they moved quickly. Architect, contractors, quotes, counsel, the work was being done. The communication was not, and that is my fault, not the owner's fault. Second point is the costs are real and kind of scary. This is not an institutional developer.

I wanted, especially in light of the Appleton Post Crescent article, I wanted you to think of Keystone Futures not as a business entity but as people. This is a young family. The compliance costs represent a quarter to nearly the full value of the building they paid. And I'm not going to quote the number. It's in the public record.

But it's very it's much larger than its current value. The question is not whether safety matters. It does. The four's agree. The question is how to achieve safety in a way that doesn't destroy a small family business.

Third, there is a path forward. Unless the board sees another way to resolve this, and I am unfamiliar with the options to adjudicate this appeal because I think as Attorney Gladd has put it, this kind of appeal is not normal before the Board of Health. So I think there are some choices that Attorney Gladd has pointed out. But unless you see another way to resolve this, my client intends to pursue a variance through the Wisconsin Department of Safety and Professional Services. A variance would allow us to work with the fire department and inspections to identify measures that achieve equivalent safety without requiring the full scope of new construction R1 retrofit on a circa 1,900 building.

I have already begun researching that process. Like I say, I just returned from Florida last week. As you might tell, I'm getting over a flu that I caught down there, but I am prepared to move forward promptly with that variance process. Me. Stifled it for that long.

We're not asking the board to waive the building code. We are asking the board to recognize that the forests have been diligent, that the financial burden is extraordinary, and that a constructive path exists. We respectfully ask the board to consider that path and work with us towards a resolution that protects public safety while preserving a small family's livelihood and a community asset on West College Avenue. Thank you for your time. We're happy to answer any questions.

I would like to start with questions from the board, but I would actually like to go first. Maybe more of a statement. I don't know if this is allowed. But I'm very concerned in the words, Attorney Arthur, that you say, as a Board of Health, we're really focused on sanitation and those kind of issues, and that this issue is maybe beyond our expertise. And this position is new, and we represent the city.

We did the research along with the health department on why this is needed. We had to vote on it, so we had to do our due diligence. I have gone along on visits with Todd Schmidt and seen the work he does. As a user of these short term rentals, I want to make sure the people that do come for all of these events are safe. And I'm not saying that you are this group is not safe, but the implication that we are not able because to to judge on this because we don't have that experience and that this hearing is not typical is disappointing to me.

So I feel like I do need to say those words out loud. Onto actual questions. So is the quotes for the elevator. Is the elevator required, or was this just looked at for additional options?

In my research, the elevator was required, could be required, depending on the interpretation of the building code. It was not in the notes. There's a memo from the fire department that does not specifically say an elevator is required. I didn't take that note as, or that memo as, dispositive and I wanted my client to get all the quotes necessary for any compliance that might be required. And I just want to also take a moment to apologize.

I did not intend to imply that this board was not qualified to look at building code issues. That was not my intention at all. I wanted to point out, because this is the first meeting of the Board of Health that I've ever attended as an attorney, is that I didn't expect this board to adjudicate building code issues because I didn't think that a variance would be heard here. It would be heard, I think, before another board, if I'm not correct.

Chair, if I may. We're not adjudicating building code here. Right. What we're here to discuss is the appeal of a cease and desist order that was issued in the process of issuing a license which is administered by the Department of Health. And I would suggest, Chair, that we narrow our focus to discussion of the appeal of the cease and desist order because I believe there's extraneous information shared in this morning's testimony that does not pertain specifically to the cease and desist order.

So I would ask that we focus our discussion on that because we are not in fact here to adjudicate building codes. There's another board that discusses those types of issues. This is not the purpose of our discussion this morning. We're talking about the cease and desist order.

Thank you for the reminder, Mayor, to focus on what we are here for. I do then have one more question in relation to the cease and desist order. As these quotes were being taken and the work was being done to research this, that was not communicated to the city. Correct?

So I had several conversations with Attorney Glad where I talked about the research that I was being that we were doing. It was not a formal report.

Alderwolf. Oh, we're back. Okay. Alderwolf, you can go ahead.

Thank you, chair. So based on this this system sorry. I'm talk to in a minute. So basically, why they're asking, for a postponement is to see what they can work in, within the city, for the future. Correct? And I think that the biggest issue was that they didn't have a sprinkler system, although that hasn't been mentioned yet. Are there any other issues from the inspector's office that haven't been brought up.

Director

Wan?

Director Wan. Go ahead. So we issued a notice of non compliance back in February or I'm sorry, July, saying we would like a plan, an architect to be hired and a plan submitted for for review with the state. That's our position. We don't have anything to respond to. So usually there's a code review done by an architect, which I think they've they've done, but nothing official has been provided. No plan has been submitted. So the architect would be the one to make these determinations of what the plan is, how are they going to renovate this building because there's been a change of use, and what the code requirements are. We are reviewers. We're not designers.

Alder Wolf, do you have a follow-up question to that?

Yes. Go ahead. So when we're going through because we instituted this policy last year, And as we're going through these places, if we are asking these individuals, not to specifically state view, but others as well to get up to code with us, How much time are we giving them to get to code? If like, if this cost, for example, were to be put on a private individual, it might take a while to come up with that one. Right?

How much time are we getting to get the plants? Because it seems like we gave them six months to get in contact with the architecture or, like, if they get in contact with them, are we giving them more time to do that?

That's a question for me again. I'm looking at the case right now and the original review date after first notice was sent out was in September, 09/25/2025. This case has been continued till March 1, 03/12/2026. So this has been put on hold basically for this review because we knew this variance request was scheduled. So we'll review this again in March.

Yeah. I

would just say, as I understand it, that was the purpose of putting forward a conditional license option for the owner, was to set forth a timeline and to work through the reasonable details in partnership. Is that correct, either Todd or health officer Sievers?

Yes, that is correct, Mayor. The draft document was set forth in a manner that would allow for some back and forth in a way that we could work through some specific details as it played out in terms of what was possible and in terms of meeting what it was that we needed them to meet.

So in effect, if I'm following this, the city offered a path to what was called a variance, but essentially that's what we're talking about is, you know, with a conditional license that would have allowed for legitimate operation of the property well, the process worked its way through, analysis was conducted, and a plan was set forth to come into compliance. Is that correct?

That is quite correct. Okay.

Madam Chairperson? Yes. The conditional license as proposed required full compliance by 12/31/2025.

Questions from me?

I have a number of thoughts. We deal with some 26,000 addresses in the city of Appleton. We are oftentimes agents of other agencies, whether that's county, state, otherwise, on a number of different aspects of code, various codes, codes that we aren't, as a city, responsible for implementing, you know, we don't or developing. We don't create the International Building Code. We are agents who apply that code locally.

I'm just I continue to be struck by the timeline of events. There's no dispute, it seems, of the fact that code issues exist.

And

the city we've we've worked with a number of different property owners over the years, who who face similar circumstances, and and there's full recognition of the difficulties that are presented when we deal with changes of use, or code compliance issues. And the timeline of events that's laid out here and the record that we have before us demonstrates that the city did issue notice of noncompliance and then attempted to put forward a plan to collaborate and work together. If there were issues with the proposed language of an agreement, I mean, we routinely negotiate the terms of agreements between either outside counsel, you know, representatives of members of the community and city staff, legal administrative services staff. That's a routine process of negotiation to come up with terms that are acceptable to all parties. That's a basic function.

And so I'm stuck on the fact that communication was made and then there was no further discussion of the conditional license agreement after it was put forward. And meanwhile, the property continues to this day to operate, even having a cease and desist order in hand. And this is not a we are not here to judge the character of the property owner or owner's counsel. These are not value judgments. We're here to look at the facts before us.

And as I see it, the facts are that a notice of noncompliance was issued. There were code issues pointed out. There was a process laid out. And there was an offer put forward to negotiate a conditional license agreement that would allow the property to operate. And then no further action was taken on the part of the owner or owner's counsel to work through the details of that agreement.

That, to me, is really at the heart of this. And now we're being asked to move forward with this process, again, with sort of indefinite terms. I just don't I can't get my head around it. And frankly, when we address issues of code compliance, cost is not a hardship that is considered by the boards that review these issues. What I take away from what I've heard this morning is that this is about money.

And it's a concern about money. It's a concern about the cost. And so continuing to operate after the cease and desist was ordered. And regardless of the cause of the delays during the course of the delay in getting to this proceeding, the properties continue to operate as it was before in a non compliant manner with no clear plan or process in place discussed with the city because it's expensive to bring it into code. And that is to me, that's at the heart of the the request.

And my inclination is to is to deny the the appeal because I've seen nothing from the property owner or owner's counsel to suggest that we're going to meaningfully move forward on this, despite the timeline that was presented by owners counsel that indicates all sorts of work was happening in the background. But in the absence of communication, we couldn't know that.

So I

we try as a city to be reasonable when when we work with property owners and be understanding. We want businesses to succeed and thrive in this community. We recognize the value that businesses like Mr. Forrest contribute to the downtown. No question about it.

But we also have an obligation to uphold the code. I just I find it extraordinarily frustrating. And frankly, I'm I'm sympathetic to the to the owner. But but this is this is ultimately a business problem. And owners' council's accepting responsibility for the delay in the timeline and lack of communication.

But again, that is a that's a concern for the business owner in terms of counsel they've retained. It doesn't change the underlying situation, which is that we have a building that that is currently not properly licensed to operate in the manner that it is. So as you can tell, Chair, I'm frustrated by this discussion because what I know of our staff is is that we we work diligently to be reasonable and to provide provide opportunities for for folks to get into compliance. Our goal is compliance. It's not to be punitive.

It's not to to ruin businesses. But at some point, there's a line.

Do we have any additional questions from the board? It's difficult to hear you when you're not close to the mic. Normally this is not a problem for me, so I apologize to all parties involved. Thank you. Okay. Any other questions from the Board of Health members on this issue of noncompliance?

Can I add two things? Yes. Two things I want to point out is there's a number of submitted materials that have been referenced. Those are part of the record, and and the board can rely on them in making their determination. And then another thing I just wanna remind the board per our code, what's before what's before them is to affirm, modify, or set aside the cease and desist order. I just wanna frame it that way so it's consistent with our code before any motions come in as opposed to something like denying the appeal. It's it's more of affirming, modifying, or setting aside the cease and desist order.

So sorry. Are you done?

Yeah. Please hold. I'm done. You are done.

Okay. Chairperson, I didn't catch your last name. Jones. Jones. Mr. Forrest would like a moment. Just a few spare

Is that okay? Go ahead. I apologize. I didn't mean to interrupt. Felt like it was ending and I wanted to Go ahead.

I kind of just wanted to speak to a little bit the mayor's frustrations and with kind of the way this has been presented and laid out. I guess in my mind, it wasn't intended to be, oh, this is an expensive thing. I don't want to do it. I think maybe I know it's in the packet and the details. I guess when I look at it from my perspective, even if I try to take myself outside as a user of the space that would come and use it, I look at the things that are in place, six smoke detectors tied to a central existing fire control panel that communicates to the fire department, two pulse stations on the end of each hall, visual and audible alarms in each room.

So it's not that we're talking about, oh, I have battery powered smoke detectors from Walmart right now. I think we're good. I don't want to spend $130,000 I feel we are in the middle there of having a very good system in place and a lot of good safety things that are there. I guess it's just and I know that I understand it's not your place to decide on the code or change the code just to apply it. I certainly understand that.

It's hard for me to look at it with my technical engineering brain and go, yeah, it makes sense to put $140,000 sprinkler system in there and replace everything when we have a really good thing in place that's a commercial grade system that is a step ahead of a residential system that is better than probably a lot of existing short term rental systems that are there. I, as a guest, would not feel unsafe feel like I get that the point of especially when we kind of move to this R1, we are now a hotel, right, typically more complicated movement paths within a building. There's a concern that somebody gets lost, right, turned around. Fire suppression is there to buy them time to get them out safely. That was largely a part of two why we really wanted to offer the ability to see the building through photos, come and take a tour.

You come out of these four units. There is a single roughly 80 foot long haul exits on each end. Left to right, you're out. Right? So again, not to try and minimize the code or or to play down the the safety aspect.

Just is this the best application and investment of time and resources and a change that really makes a significant safety impact? Or are we maybe looking at a place that is a little bit gray in terms of how this code is applied? There are some very good things there. It's a very basic and simple layout. I, as a user with two young kids would not feel unsafe in this place. So that's kind of all I wanted to

Thank you, Mr. Forrest. I feel like we're at a point where we're just kind of making the same arguments and questions. So we'll do one more question. Doctor. Vogel? Okay.

Go ahead. So I'm not in government and I'm not an elected official. I am somebody who operates a business and having just gone through, we have significant situations with managing our revenue and our expenses. And the combination of what's been presented, what the mayor summarized, and what I think you just confirmed with no I don't disrespect But you are operating from the premise that the law doesn't apply to you because you have common sense around what is safe. And I could probably agree that you have common sense and there's a lot of safety here.

But the issue is that there are certain expectations regarding compliance. And the history of how you haven't complied now makes sense to me because you have different thought about whether you should or shouldn't based on your own summation. And that's not a value judgment. It's just that if you're operating a business, you have to have clarity around what is expected of you. And when you're asking for a path forward that is looking for another variance, it is more of the same.

And the path forward to me is going to be the same as the path to here if you don't have a concept that there is a line. And I think that's what we've been asked is to say finally there is a line and hopefully help you change the mentality to operate a business within code regardless of whether we all think it's safe or valuable and a wonderful business for our community. Every other business owner is asked the same.

Thank you, Doctor. Vogel. I think with that, I would like to see, do we need to go into closed session for a vote, or are we confident in doing our vote?

If there's no motion to go into closed session, then I don't believe we need to, Chair. Okay.

Do I need to go through all of the motions?

No. Not for the closed session. You don't need to go to that. But at this point, I don't know if you would entertain a motion on

I 'll entertain a motion on the hearing on the Calmoun's appeal order of cease and desist operations. So would it help clear this up for me?

Motion to deny.

Second.

All right. We have

a just for the minutes, what is the motion to deny? Is it the appeal, or are we looking, as I stated earlier, to affirm, modify, set aside the cease and desist order? Those are the options as our code sets it out. So I guess I think for clarity moving forward, can you Motion

to deny the appeal.

So motion to deny the appeal, which is affirming the cease and desist. Okay. And, Kathleen, you were the second

on that?

No. Doctor. Vogel second?

Yes. Doctor. Vogel.

Okay. And same, affirming the season is Yes.

I second the motion as stated. Okay.

Are we ready for a vote, Attorney Glaat? All right. All those in favor signify by saying aye. Aye. All those opposed? Abstentions? Did Alder Wolfey get a vote in? Perfect. All right. So that is seven to nothing. The cease and desist order is upheld. We are then going to move on to our next item, 2,601.

Chair, I'm sorry. Before we totally move on, I'd like to say that I know staff continues to be willing to engage on a process forward and to move as expediently as possible. The process of going through plans and discussing what needs to happen with the property, including potential equivalencies for safety, would be discussed through that process once a plan is submitted. So my encouragement to Mr. Forrest is to continue to engage with city staff to move forward on the process.

And you have our commitment that we'll work as expediently as possible and with the discretion available to us to try and find a clear path forward again as quickly as possible. Possible. So thank you. Thank you.

I'd like to put forth the hearing of appeal for our next case, but take a moment to switch out individuals and make sure that we have all of our paperwork ready. So I'm going to call 260135 hearing of appeal of prohibited dangerous animal declaration.

A quick, forum question for anyone. If I drop out before the information items come up, is it not gonna mess up our forum at all?

I am so sorry. I didn't understand any of that.

Sorry. So if

If you leave the meeting, we'll still have quorum.

Yes.

Alright. Just asking because my phone battery is

Okay.

Nothing's great.

Thank you, Alder Walls. Yeah.

You're one strike. We have clerk, director two, director three. Attorney Berwyn, what is your mic number?

District five. District five. Okay.

At this time, I'd like to ask Mr. Miller if you would like to come and sit up here for our hearing purposes. And just to confirm, you have microphone District 9. It's right. Yeah.

Yeah, I do. Thank you.

Right. Attorney Glad, would you like to go ahead and I did introduce. Okay.

You, attorney. Okay. Good morning. I'm Darren Glad. I'm an assistant city attorney for the city of Appleton. My role is to advise the board on this hearing. Reminder to the board and those participating that the purpose of this hearing is to provide the owner or caretaker of the animal that was declared a prohibited dangerous animal an opportunity to present evidence as to why the animal should not be declared a prohibited dangerous animal. In this case, it appears that the owner is Alexander Miller, and the prohibited dangerous animal is a dog named Clyde. And Alexander Miller, you're already up at the front. Do you have all your materials that you'll need for the hearing with you up at the where you are seated?

This is everything that you gave us. Awesome.

Thank you.

And you were saying your girlfriend had materials?

Yes. She had materials as well.

If you want, she can join you up here.

Yes.

Okay. When it comes to witness testimony, we'll have the witnesses use the podium. For mister Miller, when you're asking questions of a witness, you can stay in that area. But if you're gonna testify, we would ask that you'd come up to the podium and be sworn in. Copy.

Everyone must use a microphone when speaking. Only one person should speak at a time, and all witnesses will be put under oath for this hearing. City staff will be first given the opportunity to provide background information on the prohibited dangerous animal declaration. Assistant city attorney Zach Berwyn can present relevant evidence, including presenting documents, calling witnesses. Both parties will be given opportunity for opening statements and closing statements at those times.

City staff will have an op oh, I'm sorry. The owner caretaker will then be allowed to present his evidence, including presenting documents, calling witnesses, testifying yourself. Then see staff opportunity to address any evidence provided by the owner or caretaker. The chair can repeat this process, giving each side an opportunity to address what's been presented as many times as necessary until the chair is satisfied that each party has had a fair opportunity to address evidence introduced by the opposing party. The chair can also allow somewhat limited opportunities for the board to ask clarifying questions that are relevant to this proceeding.

The board will then make a determination as to whether the animal is a prohibited dangerous animal. The board is allowed to deliberate this decision in closed session but will vote in open session. A written decision will be provided to the owner and caretaker at the conclusion. Another thing to note for everybody is that this hearing is limited to whether Clyde is a prohibited dangerous animal. There is no dangerous animal declaration to be considered.

And just a reminder, as we saw with the last hearing, as a reminder additionally to myself to speak right into the microphone so that everyone can hear and to focus on the issue at hand. I believe then Attorney Berwyn, the floor is yours.

Thank you, Chair. I want to start just by summarizing things a little bit in terms of the facts we're going to hear about and the relevant considerations as far as what the code requires or how the code defines things appropriately. Primarily what we're going to be hearing about today is an incident that occurred back on December 24, Christmas Eve. It involves a dog which we've heard about named Clyde. It's a dog that resides in the city of Appleton.

The incident in question occurred at a family gathering at a residence in Marathon County, the basement of that residence in particular. The incident involved the dog Clyde aggressively lunging at an individual, a human's face. During the course of this, there is actually video of the attack itself that will be presented. And in that, you're going to see the dog and hear the dog. Its its actions and how it how it lunged, how it attempted to attack, how it barked along the way.

You're going to see the serious injury that the victim in this case, Kathy, sustained to her face. In fact, those pictures are in the materials that have been submitted, so you have already seen that. You're going to see and hear about the dozens of stitches required to close that wound. There are, by my count, 28 that are clearly visible, and those are just the stitches that are on the exterior of the wound. My understanding is that there are more on the interior.

You will and have seen the depth of the injury to Kathy's face, noting particularly that there's an opening on her face basically from her eyebrow down her cheek to approximately the height of her upper lip. You're going to see exactly what prompted the attack, such as it is. The decision you're going to make, ask to make here is simple. And it's, does Clyde meet the definition of a prohibited dangerous animal as defined by the municipal code of the city of Appleton? That is contained in section three-one.

And in particular, we're considering the third definition, which has four criteria for consideration. One, an animal. Two, on public or private property. Three, inflict serious bodily harm on a person. Four, unprovoked. That's it. Regardless of anything else that comes up or is brought up today, those are the four criteria that are under consideration. Some of them there's no dispute on. Some of them it's a bit unclear to me. But ultimately, those are the considerations.

And beyond that, I think the evidence will be quite clear. So with that in mind, I will refrain from addressing any of the arguments that have been submitted in writing at this point and save that for the appropriate time. Like to begin with the presentation of evidence through the testimony of Kathy Whitman who is present by Zoom with permission from the board.

All right. Kathy, go ahead. No. Kathy's. She has to be sworn in.

Yep. Do you have a turn? Can you turn on again? Kathy, are you able to hear me?

Yes. Okay,

thank you. You

Can hear me?

Yes. Can you state your full name and spell your last?

Kathleen Jo Whitman, W H I T M A N.

Please raise your right hand. Thank you. Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth, and nothing but the truth shall help you God?

I do.

All right, now that she is sworn in, Ms. Whitman can go ahead and speak.

I'm going to ask her some questions.

Apologies.

No worries. Ms. Whitman, are you able to hear me all right?

Yes.

Okay. Miss Whitman, I wanna take you back to 12/24/2025. What where were you what were you doing on that day?

In the evening, I went to my brother's house. I was invited there for Christmas Eve.

So it was a family gathering at his house? Yes. If you recall approximately how many people were there, roughly?

I'm going to say at least a dozen.

Were there any animals that were present as well?

Just the two dogs, of Alex's.

Do you know the names of those dogs?

Bonnie and Clyde.

Is that the first time you'd encountered Bonnie and Clyde? No. When was the how many prior times had you encountered them?

Roughly. Probably a couple times, approximately, like, two years ago.

Had you interacted with them on those prior times?

Yes. They were outside at my brother's house, and they didn't have any water, and I got them water.

Did you arrive first, or did the dogs arrive first?

I believe I was there before the dogs arrived.

When the dogs came, did you make any attempt to reintroduce yourself or acclimate yourself to them?

Not initially. I didn't even, I didn't even know that, when they came in or whatever. Was in a different room.

Okay. At some point, did you decide you were going to do that? Yes. Did you mention anything about that to the owners before, you did that? Yes. What did you say?

I asked Alex if it was alright if they visited the dogs or something to that effect.

Where were the dogs?

They were in the basement.

Why were they down there, if you know?

My brother doesn't didn't want them in the upper rooms anytime that he came. I believe it was because I think they were destructive, and and he just didn't want animals up on his furniture in the in the upstairs of the house.

So it was to keep them away from the furniture, essentially? Is that

It was my understanding as to and out out from underfoot, he he didn't want them there. Okay.

When you told or asked Alex if it was alright if you interacted with the animals, what did he tell you at that time?

I believe he said it's fine. In the video, there is audio, and you can kinda hear me ask him. I was on the stairs when I asked him, he was coming up and closing the gate, and I asked if it was alright if I went and saw the dogs. I don't know. You the little girl's voice kinda goes over at that time, so I don't know if you can hear his reply or not. Okay.

Were there any other reasons that you wanted to go downstairs?

Yeah. There there wasn't a the living room was kind of full of people, there was nowhere to sit, and that was my childhood home growing up. And I spent a lot of time downstairs, and it's just I'm comfortable in the basement.

Okay. When you went downstairs, there's some type of and we'll see this in the video there's some type of door enclosure kind of separating the basement from the staircase is that right

Yes.

And that is locked in a way that's intended to keep dogs from being able to pass through, but people are able to pass through just fine? Yes. Okay. When you came downstairs, had to undo the barricade, essentially. Correct? Yes. When you entered, where were the dogs?

They came right to the bottom of the steps to greet me.

So they came to you? Yes. Both of them? Yes. When they came to you, what did you do? I pet them. At some point, you enter into the room more fully, of moving away from the door. Is that right?

Yes.

You had something in your hand when you came in. Is that right?

Yes. A can of soda.

What did you do with that?

I set it on a card table by the couch. Maintain was to pet the dogs and then sit down, but I never got that far.

So the table was across the room from the door and you go to set it down? Yes. After you set it down, what did you do?

The dogs were right there by me, and I started to pet them.

K. So the dogs followed you from the door to the table? Yes. Do you remember which dog you pet first?

I think I pet Clyde first.

Did was Bonnie there as well?

Yes. She came kind of from the other direction that he was up to me. She wanted to be pet, I thought. So Did you I turned my attention to her.

Did you pet her? Yes. When you turned to pet Bonnie, did you step on anything?

No. I don't believe I moved my feet at all.

Were you wearing shoes?

I don't think so. Typically, I I don't in my brother's house. If I did, they were very lightweight shoes I had on that day, but I believe I didn't have my shoes on. Okay.

When you turned to pet Bonnie, what did Clyde do?

He attacked me.

And when you say attacked, would you describe what he did?

He growled and lunged at my face so fast I didn't have time to even react or do anything. I never never saw it coming.

Okay. When he did this, just to clarify, were you standing up straight? Or were you kind

of No. I was petting I was petting Bonnie, so I was leaning forward to pet her.

And had you leaned forward to pet Clyde previously as well?

I believe so because, you know, to reach the dogs, you know Okay. To pet him.

When he lunged at you, if you remember, if you recall, did he make contact with you?

Yeah. Face.

His face or your face or both?

His face made contact with my face.

After that happened, what did you do?

I put my hand to my face, I know, and, it kind of was in shock, so I I don't think I moved right away. Okay.

Do you know

asked me what happened.

I'll I'll stop you there. So you you stood up, held your hand to your face. Did you have any knowledge at that time or recollection of what Clyde did after that?

Well, I knew he bit me. I could feel the puncture, but I just I didn't I did not think it was that bad. It I yeah. I just did not think it was that bad at the at the moment. I I didn't even know at that time that, you know, it started bleeding or anything. So

Did you see what Clyde did after he bit you or lunged at you, I should say? If you don't if you didn't

I honestly I honestly don't know. I would that the whole it just it completely shocked me, and and, yeah, I don't really know what he did after that or what happened exactly.

Okay. After that happened, did you end up seeking medical attention right away?

Not right away. Okay. I'll I'll stop you there.

Did you call the police?

No. What

did you end up doing? Let let me ask it this way. I know. Did you end up staying for the remainder of the gathering?

Not entirely, but I did stay there probably another hour and a half k. I would say about an hour and a half maybe after that.

At some point, you went home?

No. I the realization and the pain in my face and was getting to me, and, I left to go to my sister's house, who is a retired nurse, to have her see because I never actually really saw the wound. There was so much blood when I first started to try to, wash the blood off my face. I I didn't really I didn't think it was that bad. I didn't realize the depth of the wound or exactly how bad it was.

I just thought it could be pulled together. And then I was starting to realize that it was probably worse than I thought. And so I wanted my sister to look at it.

After speaking with her, did you end up going for medical attention?

Yes.

And when you received medical attention, were there stitches required to close that wound?

Yes, a lot of them.

Do you recall and if you don't, that's fine but do you recall how many stitches it was?

They never said. I'm sure it's in my medical records, but they never said.

Do you recall them saying anything about whether there were different layers of stitches that were required?

Oh, yes. Yes. It took a very, very, very long time.

Do you recall them saying anything about internal stitches? Yes. Did they say that you required them? Yes. So there were stitches on the outside and stitches inside the wound as well? Yes. Were there pictures taken of your wounds? Yes. Are you aware of whether or not those are the pictures that were provided to CSO, lead CSO Matt Phillip Brown?

Yeah. I'm not sure which pictures he has. Who

took those pictures?

I believe that some of the pictures that he probably has were taken, by Alex's mother at the ER. Think my sister locally, my sister took some pictures in the following days of it because I went to her to help with wound treatment.

Have you seen the pictures that were taken on both

occasions? I believe so.

There was video of this incident, correct? Yes. Have you seen that video?

Yes, I did.

Are you aware if that video was provided to CSO Philip Brown?

Yes.

Did you provide them directly yourself? No. Who provided them?

My sister in Florida. What's her name? Sandy Voss.

So she provided the pictures and the video? Yes. Did you ever call the police about this incident?

I did not. I didn't I did not know. I didn't know the procedure. I didn't know how any of this worked. I I just really didn't know. I did make a police report locally in Mosany, but it was way after the fact when I was advised that I should do that by my brother-in-law.

Just a couple other things very briefly here. Are would you consider yourself to be an animal lover?

Oh yeah, definitely. Okay.

How long have you been around animals or I guess dogs specifically?

Growing up, we always had dogs. And I had a dog of my own when I was older, but I did not get another dog after he passed away.

So you've been around dogs for most of your life. Is that fair to say? Oh, yeah. So you're used to interacting with dogs. Is that right?

I'm sorry. Could you repeat that?

You're used to interacting with dogs. Is that right? Yes. I want to talk just a little bit about your injuries before I end things here. We talked about the talked about the stitches. Have you been given any information about any lingering effects for your injury?

No. Not at this time. I've been told that I am probably going to have to go back see the long term's effect because it was so close to my eye and my eye kinda I got a big ridge here and it drooped. My eye is droopy. So I'm not sure where all this will go or how much scar tissue will go away. I've I've never had anything like this before, and and I do have still quite a bit of pain, when it's cold. I think because of the new skin and stuff, it's it's not good.

Are you experiencing any other ongoing symptoms? Loss of feeling or or anything like that?

Yeah, it's pretty much the whole area that's stitched. It's all like kinda it's numb.

I don't think I have any additional questions at this time. Thank you, Ms. Whitman.

And then, Alex, you can go ahead and ask questions, if you would like, to the witness.

I don't believe I have any questions for Kathy.

You do not have any questions? Okay.

There's no additional questions. I would ask permission for Ms. Whitman to be excused if she wishes to go or if she needs to stay then she can be advised of that. But just clarity on that would be appreciated.

Yes. Ms. Whitman can depart if she needs to. Is that absolutely. You can depart.

Okay. Thank you.

Thank you, Ms. Whitman. Next, I would call lead CSO Matt PhiliBrown.

Would you state your full name then spell your last?

Yep. Full name is Matthew Phillip Brown. Spelling in my last name is f I l l e b r o w n. I am the lead community service officer and humane officer for the city of Appleton.

You raise your right hand. Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth, and nothing but the truth shall be God? I do.

You already answered my first question. You're the humane officer for the city of Appleton. In that capacity, were you made aware of the attack that we just heard Ms. Whitman provide testimony about?

I was.

Do you recall approximately when you were made aware of that attack?

Give or take 1.5 to a maximum two weeks ago, I received a phone call.

Who was that from?

It was from the victim's sister, Sandy, or Sandra.

So that was not something you learned about directly from miss Whitman?

Correct.

Initially, what did she tell you about the attack?

The phone call started with her asking questions about what they could do in regards to an animal attack that happened with their family. The conversation did start off that it was in Mosany County, which is outside of Appleton's jurisdiction. But as the conversation went on, they brought up the fact that the attacking dog did reside in the city of Appleton, which then led to further questions of the injuries and then the discovery that approximately 86 stitches were caused during the attack that happened in Mosany.

And to be clear, couple of things. 86 was an estimate she provided you, correct?

Correct.

You haven't seen any medical documentation of that number specifically. Is that correct?

Correct.

Okay. You mentioned Mose Knee. That is in Marathon County to the best of your knowledge, right?

Yes. Okay.

Did Sandra end up providing you photos and videos related to the attack?

Yep. Roughly around seven pictures and one video were sent to me, and then I uploaded them to the case on evidence.com.

The photos and video, the individual depicted in there, that is did you end up identifying that person as Kathy Whitman

yes when talking with her

and that is the same person we saw testify here today by video is that correct

that is

The photos and video, I'll ask the photos specifically. The photos that have been attached to the Board of Health agenda packet, those are the photographs that Sandra provided to you. Is that correct?

They should be, yes.

And those pictures depict Ms. Whitman and her injuries, is that correct?

Yes.

At some point after speaking with Sandra, were you able to speak directly with Kathy?

I ended up, I do believe, talking to Alex first and then talking to Kathy in regards to the investigation. But yes, I was able to make contact with Kathy.

And in speaking with her, did you confirm the circumstances of the attack that we heard about already?

Yep. When talking with Kathy, her statement didn't match what her sister told me on the phone.

Did it match with the video?

It did.

During the course of that video, did you see anything that in your experience as the humane officer and in your experience as a human being that appeared to provoke the attack that we'll see on the video momentarily here?

No. From watching the video, from my training experience as as not only the lead CSO in animal control and the humane officer, it looked like a normal get together with people interacting with a domesticated family dog.

After gathering information from all the sources that we've talked about, including the videos and photos, in your capacity as the humane officer for the city of Appleton, what did you do?

Part of my responsibilities as the humane officers when it comes to animal attacks is enforcing the code that we have for dangerous animal and prohibited dangerous animal. When I do these, I don't take them lightly. They're hard to do because I know it impacts multiple people. It impacts the victim, it impacts the owners of the animal, it impacts the city. But part of that responsibility is looking at the code and making sure that does the actions of the animal match what the code is looking for.

And as I watched the video, did the investigation, and looked at the severity of the attack, it was clear that there was serious bodily harm done in an attack that we deemed to be unprovoked. So looking at the code for prohibited dangerous animal, it did match the criteria for that declaration, so I then moved to prohibited dangerous animal.

And you issued that declaration?

I I did.

I think that's all that I have as far as testimony from Officer Philip Brown goes.

Alright, Mr. Miller, do you have any questions for Officer Philip Brown? We do. Okay. Just to confirm, I only know you as girlfriend. What is your name?

My name is Brianna Garcia.

Perfect. Okay. Ms. Garcia, you are microphone number eight. Wonderful. Please go ahead.

As a humane officer, you go through a week of training to be certified in the state of Wisconsin and are required to obtain a certain number of hours of continued education to maintain your certificate. Is that correct?

Yep.

Have you ever taken any classes in regards to dog, body language, calming signals, tail position, anything in that regard especially?

So I I can't tell you the exact course that I have taken on the exact date, but over twelve years of doing this job, we have taken courses on animal behavior and looking for attack signs. It's what we teach our CSOs when they're out in the field dealing with animals to look for pre attack postures, snarling teeth, body language, stuff like that.

Do you have any physical certifications and any form of dog training, anything of that sort?

I'm not a professional dog trainer, no.

Okay. Yes or no. Do you recall or can you refresh your memory regarding the dangerous animal declaration of Chewy, the black lab mix who caused injury to Steven Jennings' five year old son in December '20 Hold 20

on. Hold on. Hold on. Attorneys, are we able to refer back to that?

I don't think it's relevant

by the state.

I have paperwork with that.

It's just the question he objected.

Oh, sorry.

You're going to have to rule on the objection. So hearsaying there's lots of reasons hearsaying is allowed at these hearings. But all evidence and all testimony needs to be relevant to this. So if you don't deem that relevant, which I believe is what Zach's objection with him. He said that it was not relevant. So you can you can abstain the objection, which means that he doesn't have to answer it or overruled and he has to answer it.

Okay. So attorney Berwyn did the objection. And based on the new vocabulary I'm learning, I am sustaining it as you do not have to answer that.

Okay.

Please continue.

That is all I have. Okay.

No additional questions, just some multimedia to present video and one additional photo beyond. So I think you could be seated then.

Thank you.

I will need to click share if I may.

I believe it's right next to you. Oh.

Terry Berwyn, I just want to clarify that the photos are in the packet. Obviously you can't put the video in the packet but it was a link to it was in the agenda that was accessible.

A link to it is in the agenda is my understanding. I also do have a hard copy of it and the additional photo that I have. The photo is a frame extraction from this video that I will present for availability on the record as well. Thank you. This is approximately two and a half minutes video including the attack here. A couple things I will point out as we get going here. If we, not going to work. Top middle, that is Clyde. Left side by the door is Bonnie. These are the animals that have been mentioned before.

I'm going to play this. I don't think that I'll stop it during the course of it, but I may refer back to it at other points. But I'm just going to let it play for the approximate two and a half minutes.

Before you do that, is there any warning we need to give individuals watching it of fluids or anything that we just need to prepare for?

I don't think any of that is visible.

Okay.

Certainly Thank

not with any level of clarity given the the frame rate and the resolution of the video, but

just wanted to give a warning.

Thank you. There is an attack that happens and it happens pretty much right in the center of the screen just everybody's aware but it's not close enough to the camera where wound or blood is particularly visible. I'm going to play that without comment at this point.

I thought Alice was down here. No.

Oh, she's back. Sit. What did you do? Mom. Yeah. I know.

This is a photo frame from approximately one minute seventeen seconds nine sixty eight thousandths of a second. This is the dog essentially with its jaws around the top right corner of Kathy's face with the teeth visible as it's barking as we saw in the video. I would direct everybody's attention to Ms. Whitman's demeanor prior to the physical affection she was providing both of the animals, largely consistent with the additional the affection provided by everybody else who was there present. The additional the only thing that she did differently is bend down slightly more.

So we've now seen in the packet the aftermath, the open wound on her face, the deep open wound on her face. I'm not going to put those photos up, but they're in the packet for everybody to see. And I would urge everybody to review those. You can see the number of stitches that are required. Again, just externally you can see at least a couple of dozen.

And we've heard about the additional stitches that were required on the interior, which if you look at how much flesh is visible on the photos of the wound and its death, that tracks. So in terms of what happened, we've now seen what happened. We've seen how it happened. We've seen why it happened. And I would submit at least for the time being before we hear additional information before we come back and address some of those things that we're going to hear in the caretakers presentation that the wound is serious, the bodily harm is serious.

Ms. Whitman, we can see the lack of provocation. It's obviously an animal and it's in a public or private on public or private property. So based on that, those are the criteria that officer Philip Brown was discussing. And that would be my submission in terms of the initial evidence here. So with that, I would turn it over back to the chair to allow the caretakers to provide whatever additional information they wish to.

Forgive the question. Do the caretakers prior to sharing their information need to be sworn in?

So I think it depends on what type of information he's going to give. So if he's going give an opening statement, a general overview of what you're going to present, and what witnesses you'll call. You wouldn't need to be sworn. But if you're going to give testimony, we'd have you come in and be sworn in that you're not able to it doesn't make sense for you to ask yourself questions. So you can give a narrative, but that's the part that we need you to be sworn in on. Providers can make general arguments and provide an opening statement, an overview of how the evidence you're gonna put forth, that doesn't need to be sworn in. Does that answer your question?

It does, but I worry that it's a bit confusing. So, mister Miller, are you going to just explain kind of what happened on an overview, or are you going to explain it from your point of view?

I guess a little bit of both. Don't know. Sorry. I'm kind of nervous. I've never done this before.

That's totally understandable. There are

some things that Kathy said in her testimony that I would like to essentially debate. I don't know if there's a better word for it, but

So with the chair's permission, I think it just makes more sense to have you sworn in, and then you can present all of it.

Let's go ahead and do that.

State your full name and spell your last.

My full name is Alexander. Spelling of the last name is M I L L E R.

Your right hand.

Do you

solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth, and nothing but the truth, so help you God? I do.

You may proceed.

Originally in Kathy's testimony, she did not know if she had permission to go downstairs. I told her to wait a little bit just because there were so many people. We were getting unpacked from the car. I couldn't be down there with them. And as a general, I guess, in general, that area is specifically for the dogs when we arrive and everybody knew that we were coming with the dogs.

That is why they were downstairs in the basement. It is designed specifically for them. And I'm not disagreeing with anything. Obviously, what my dog did was wrong. In the video, you can see that he tenses up the second time that she bends over to pet him, and he looks very uncomfortable.

And that is why I think he chose to bite her. And obviously, like I said, I'm not debating anything. What my dog did was wrong. I just don't think it meets the classification or shouldn't meet the classification of a prohibited dangerous animal. We will be doing everything that we can to basically make it to where he is declared as a dangerous animal if that's at all possible, putting signs up around the house and following all rules and restrictions with that.

May I ask a clarifying question? Did Clyde have any prior designations in regards to To my knowledge, no. Okay. Thank you. And then procedurally. What's the next step?

We can give Attorney an opportunity to ask him questions, if he wants.

Attorney Berwyn, would you like to go ahead and ask any questions to Mr. Miller?

Yes, please.

Okay. Please proceed.

Mr. Miller, you weren't down there when the attack happened. Is that correct?

I was not.

Okay. But obviously, you've seen the video.

Yes, I have.

And that's what you're basing your assertion that Clyde looked uncomfortable prior to the attack?

The second time that she bends over to pet him, he tenses up. You can see that in the video.

Okay.

There is room in front of Clyde to walk away,

correct? Debatable. Her hand is on the other side of his head as she's petting him, so it's kind of forcing him. He would have to force his way out.

You said, and you said this two ways. I don't know if you were correcting yourself or you meant both of them, so I'd like to clarify this. You don't think that he meets the prohibited dangerous animal criteria or shouldn't meet the prohibited dangerous animal criteria. Which one of those is it or did you mean both?

I believe he would meet the dangerous animal criteria. I just don't see how or I just I don't know what the difference is or can't find a difference in the classification of dangerous to prohibited.

So you he meets the dangerous animal but you don't know what the difference is between that and prohibited dangerous? Correct. So you don't know whether he meets the prohibited dangerous criteria?

Based on what you said to start us off with this morning, am unsure, yes.

That's all that I have.

Mr. Miller, do you to call any additional witnesses?

No other witnesses.

We do not have any

other witnesses. Okay. Thank you.

Is there anything at this time that you would like the board to hear?

Brianna would like the chance to speak.

Okay. Does she need to be sworn in? Okay.

State your full name and spell your last.

My name is Brianna Garcia, g a r c I a.

Raise your right hand. Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth, and nothing but the truth, so help you God?

I do. You may proceed.

I obviously was not present in the room as seen on video. I have since changed my hair since then. I was the woman with the pink hair with the hat. Bad outfit. So sorry.

As seen in the video but not noted in the incident report, when the victim first entered the room, Clyde found himself cornered, though not intentionally or with malice, by guests as all but one get up and close in on one area of the room. This clearly blocked any path for Clyde to exit. The incident report stated that both dogs, Bonnie and Clyde, followed the victim into the room. It should be noted that the victim is moving the victim moving in the way she did provided the only open path to the rest of the room and signaled no threatening body language to the dogs. While the movement of the dogs might have given the victim the impression that Clyde wanted the interaction, he is clearly unsure based on the way his body is oriented and moving towards the open area despite turning to look and sniff in her direction.

The incident report then reads, The victim did not make any sudden movements, invade his face aggressively, or engage in any contact that could be reasonably interpreted as threatening. Clyde's body language contradicts this statement. The video clearly shows Clyde's old body flinching as he is touched again. He then tucked his body, a fear response as seen by the sudden bend in his hind legs, and then freezes. Just to reference the paperwork that I submitted for you guys for your packet, this would be the focus level on the stress escalation ladder in Bryn Goldinger's letter.

As the victim reachesleans over him and places her face in close contact with his, which is also labeled inappropriate dog breeding behavior as noted by Mikayla McDonald on page six of the pamphlet I made. Definitely not page six of the packet you guys were given.

Ms. Garcia, hold on one moment while we go through the Garcia, packet. I

can wait. You let me know when you're ready.

I remember seeing this in the digital copy, but I am not finding it in the printed copy. Am I or is it just stated differently?

Should be. She has like six pages.

Remember seeing It's a but there's a chart.

Yep. There's an index to make it easier to navigate.

There it is. Oh, okay. So it's after After. Okay. Back at So we see the stress escalation ladder. And then what was the next document that you had referred to?

It is going to be a letter from a certified professional dog trainer, Makayla McDonald. It is going to start, I believe, on page oh, I have it printed. It's going to be starting on page four, but the inappropriate dog breeding behavior is going to be on page six.

So this is the page we're looking at. Wonderful. All right. Please proceed.

Finally, she reaches for Bonnie, thus turning her right shoulder into him even further. At that moment, he jumps upward towards her and contact is made as he barks. He then immediately retreats to the open space in the room, creating as much space as the small room allowed to walk around her, further signaling his desire to disengage. He retreated into the open area with tucked body language and a lowered head, which are signs of fear and appeasement, not further aggression or any pursuit. As seen by the shallow nicks underneath the victim's eye, it appears great force was not used in the initial contact.

What would have likely been a singular shallow puncture based on the evidence then tore into the fattier area of the cheek as gravity took glide back to the ground and the victim jolted away. It is undeniable that this injury is tragic and irreversible. I feel it is also important to make distinction between a bite and the injury sustained by the victim. There is an absence of any visible puncture marks from his lower teeth suggesting that Clyde did not bite down. This points to the accidental nature of the incident, an incident which occurred in close quarters out of fear when a stranger invaded what little space he had.

This contradicts the incident report's claims that the severity of the injury reflects the amount of force Clyde used. I believe it reflects the unfortunate timing and placement of everyone present in the room at that time. While it is incredibly difficult to take emotion out of what is objectively a hard to watch ordeal, I believe this incident to be a case of accidental contact in an unfortunate location caused by a dog who could not accurately assess in a moment of fear whether or not a stranger invading his space posed a real threat. The victim in no way deserved harm or injury, which, by the way of unfortunate circumstances, was disproportionate to the situation. This ultimately wouldn't have happened if our pets had stayed home that night, our home being an hour and twenty six minutes away, where no incidents or concerns have ever been noted.

I am a firm believer that pursuant to Appleton's requirements for housing animals that have been declared dangerous, All other pets that have been named dangerous pose no threat to the public despite recorded aggressive tendencies that I found. If we, Alex, and I are given the same opportunity, we will follow all regulations put forth. We have already taken measures towards meeting the requirements as stated in the code, like muzzling, signage. We have a secure kennel, which has pictures in the packet. It's going to be pretty much the back of the packet.

The last page shows a picture of the kennel and his muzzle. There's also a picture of the lock we have on it that he is unable to undo himself. I also have a hard time undoing it, which shows that it's fairly secure. And we have just, I believe on the fourth, increased our liability insurance coverage from $100,000 to $1,000,000 Thank you.

Attorney Berwind, do you have any questions? No. No questions. All right. Thank you.

Mr. Miller, do you have any other witnesses that you'd like to call at this time? Can you say that again? Did have your microphone out. Sorry. No. Okay. Attorney Burwin, do have any rebuttal witnesses?

No rebuttal witnesses.

Would you like to make a closing argument? Yes, please. So.

There is a lot of information that was provided in the packet, and I'm not really going to touch on it other than some of the common themes, particularly the ones that have been brought up again here today. Because frankly, they're not relevant, the vast majority of them. Like I said at the beginning, comes back to the definition of a prohibited dangerous animal. An animal without provocation inflicts serious bodily harm on a person on public or private property. That's it.

While it's not been explicitly stated, in effect the argument that we've heard or heard set up at least is that the victim's conduct prohibit provoked Clyde. Maybe not intentionally, but that's the argument. You saw the video. She bent down to pet the dog. If that's provocation, Appleton ERs would be filled with dozens or hundreds of attack victims a day because that's how you interact with dogs.

You pet them. Clyde was not cornered at any point. In fact, to the extent he was ever anything close to cornered, it was before Kathy came in by the door with an adult male individual and that small child who was present. But even then, he had means of retreating. No aggression.

Nothing. When Kathy was petting him, the path that he ended up retreating that we heard about, that was open the whole time. He could have gone right through there. He had choices other than to bite in response to being pet or whatever else the dog thought it was perceiving. He attacked.