Home
http://www.sandiegoreader.com/news/2015/jun/17/cover-keep-out/
- Image by Howie Rosen
- reader_cover.jpeg (172.95 KiB) Viewed 3402 times
Keep out!
Bob Kuczewski couldn't believe it. Was he really getting arrested again?
By Thom Senzee, June 17, 2015
“It was almost surreal.”
But there was no denying the cold surface of the San Diego Police Department patrol car’s backseat.
“It was a beautiful Sunday morning,” Kuczewski, 57, recalls the moments before the second arrest of his life. His first arrest had taken place in the same spot just a few months earlier. Both the March 8 arrest and the one in November 2014 happened at the Torrey Pines Gliderport. The first was for trespassing, the second for malicious mischief.
Sitting in the backseat of a police car stung worse the second time. After all, Kuczewski thought he’d just won his right to be at the gliderport in a courtroom the week before. Yet there he sat, humiliated again, handcuffed, as he watched people make their way from a dust-blown parking lot toward the La Jolla cliffs overlooking the Pacific Ocean.
Some passersby were fellow pilots, the rest tourists who arrive daily to enjoy the beauty of the place. To them Kuczewski was just a guy in the backseat of a cop car being hauled to jail.
“I went there thinking I was going to enjoy my reward,” says Kuczewski. “You know, a wonderful day of flying after winning a four-month-long court battle that shouldn’t have happened in the first place. But instead of letting me fly my hang glider, he had me arrested.”
“He” is 54-year-old Robin Marien, leaseholder of just under 75 acres of prime, bluff-top city real estate in La Jolla that is officially a San Diego city park. As the park’s leaseholder, Marien is also operator of the Torrey Pines Gliderport.
- Though a public park, access to the flight area of the Torrey Pines Gliderport is controlled by “flight director” Robin Marien.
- cover-safety-sign_t670.jpg (102.38 KiB) Viewed 3393 times
The bluffs where Torrey Pines City Park and Gliderport sits rise straight up from Black’s Beach, famous for its nude sunbathers (mostly old men) and great surfing. Marked by red-and-white-painted telephone poles laid on the ground, the restricted flight-field area occupies about a fourth of the park space from cliff’s edge, eastward about 250 feet in all directions.
Kuczewski’s arrests happen anytime he walks onto the park — restricted area or not. Because the lease is for the entire park, not just a portion of it, Marien says he can exclude anyone he wants from the entire property. A police officer recently told Kuczewski he can be in the parking lot, but that’s it.
Kuczewski says being restricted from flying is one thing. But, he adds, neither Marien nor the police have the right to exclude him from enjoying the beauty and history of the park.
“Kitty Hawk gets all the glory because of the Wright brothers, but some major aviation history happened right here at Torrey Pines,” says Gabriel Jebb, one of Marien’s lead flight instructors. “Charles Lindbergh even set a distance record here.”
Marien pays nothing to the city to lease the property. However, as part of his agreement, he is required to provide a fully operational, public gliderport in exchange for that $0 price. The lease also requires him to provide enough insurance to cover any claims the gliderport’s operation might present, such as those resulting from injuries or deaths at Torrey Pines.
“I pay a lot of money in insurance premiums to indemnify the taxpayers,” Marien says.
But another requirement of the lease is that the facility remain open and accessible to the general public as a city park.
“Bob didn’t have to be arrested,” Marien said on March 8, the day of Kuczewski’s second arrest. “I called the police to remove him. He asked to be arrested. Two people have it on video.”
Kuczewski admits to telling the officer who responded to Marien’s call that he would rather “get it over with now” if asserting what he says is his right to be at the park will inevitably mean being arrested. He acknowledges that he could have simply left and avoided arrest.
“But I felt that standing up for the principle that I have a right to be there — just like any other member of the general public has at any city park — was more important than not getting arrested,” says Kuczewski. “The judge ruled in my favor, and it never crossed my mind that Robin Marien would defy her ruling.”
Marien banned Kuczewski from the gliderport on November 9, 2014. That was when Marien decided that Kuczewski was so hazardous and menacing that, in addition to prohibiting him from using the gliderport or coming back to the park for one year, he would also get a restraining order.
The non-jury restraining order trial in the San Diego County superior courtroom of judge Tamila Ipema spanned 17 weeks and included no fewer than five hearings. Central to the unusually long case was the incident of November 9.
Both sides agree the incident in question was at least in part captured on video by Kuczewski. Ironically, Kuczewski’s penchant for shooting video at Torrey Pines is the problem, says Marien. The eight-minute video shows a tense confrontation in which Kuczewski’s camera appears to get bumped, he says, by flight instructor Gabriel Jebb, who can be seen pushing his way so close to Kuczewski’s lens that it creates a fishbowl effect.
“Get out of here,” Jebb can be heard saying to Kuczewski on the video.
“You should put a helmet on,” replies Kuczewski to Jebb, who is instructing students on “kiting” (inflating a paraglider with wind). Jebb is helmetless.
Although he moves closer to Jebb at one point in the video, Kuczewski remains several feet away from the flight instructor. It’s only after an exasperated Jebb moves quickly toward Kuczewski that the pair end up with no more than an inch or two between them.
“Get out of here,” Jebb says again.
“If you’re hooked into a glider you’re setting a bad example for your students,” says Kuczewski.
Kuczewski confesses he was incorrect when, in the video, he insists that his adversary is breaking national guidelines set by the United States Hang-gliding and Paragliding Association by not wearing a helmet while teaching the kiting technique.
“I don’t need you [inaudible] telling me to set a bad example,” Jebb replies. “Now I want you to get out of here so I can focus on the students.”
“It’s a city park,” says Kuzcewski. “I’m standing here. I am far enough away. I’m not bothering you, Gabe,” says Kuczewski.
Replies Jebb: “You are bothering me. Your very presence here is bothering me. You’re in the way of my students. You’re in the way of the other pilots. You need to leave right now.”
Kuczewski had prevailed in a previous bid to enlist police assistance asserting his claimed right to be at Torrey Pines. So he called the police again. He says the swarm of fellow pilots who took Jebb’s side — who can be seen in the video surrounding him — made him fear for his physical safety. But this time police sided with Marien and Jebb. Kuczewski was arrested for trespassing.
During the trial that followed, Marien and witnesses in his employ testified that Kuczewski is the one who presents a physical threat. But the judge was unconvinced.
Document: Air California Adventure, Inc vs Robert Michael Kuczewski
“There is no evidence of respondent ever having created a hazardous situation for any pilot in the past seven years,” Judge Ipema wrote in her ruling issued March 5, 2015.
But Marien remains determined to enforce his suspension of Kuczewski, despite having lost in court. Meanwhile, Kuczewski won’t back down. He keeps coming back to Torrey Pines.
“I have a right to go to the park,” he says. “Just like anyone else.”
Not so, says Marien.
“As flight director, it’s my responsibility to make sure that anyone who is a danger to other pilots or people on the ground is removed,” Marien says. “I don’t care what the judge says.”
Marien believes his original effort to get a restraining order against Kuczewski failed on a legal technicality.
“We presented a civil harassment restraining order petition,” says Marien’s attorney, Christopher C. Saldaña. “The court told us it preferred workplace violence, so that was filed. The [initial] order was issued. The regular judge who sits in that department later heard the workplace violence issues and determined that we could not also present harassment and annoyance as part of that case despite our contention that there is case law that says you can morph workplace violence with harassment and annoyance.”
In fact, Judge Ipema actually used the word “annoying” to describe Kuczewski’s video-shooting in her ruling. “Although respondent’s filming and unsolicited comments and criticisms are annoying, none of the facts seem to support the conclusion that anything he is doing is illegal,” she wrote.
Saldaña will soon file an appeal on Marien’s behalf in hopes of getting a restraining order against Kuczewski.
Kuczewski says the only reason he has ever shot video of Marien has been to document alleged safety violations at the gliderport. He provided the Reader with a copy of another video that went into evidence in court showing the flight director smoking on the property in violation of a city ordinance. It also shows him giving Kuczewski a one-fingered salute.
But allegations of safety violations and hazards fly in all directions at Torrey Pines. Marien says the ways Kuczewski is allegedly dangerous are so numerous that he “wouldn’t even know where to begin.... He constantly harasses employees and flight instructors and myself by shoving his camera in people’s faces. He follows you around with that camera like a stalker.”
Kuczewski may have won the court battle for now, but so far it has been a victory without any benefits. Even showing the judge’s ruling to the police has proven ineffectual in dissuading them from taking him to jail.
On one hand, Judge Ipema’s ruling indicates that Kuczewski has done nothing to warrant the issuance of a restraining order. On the other hand, when asked in court by attorney Saldaña to clarify if her ruling applied to the question of whether or not his client had the right to ban Kuczewski from the premises, the judge said it did not.
“She can’t tell me what to do or what not to do,” Marien said about an hour after Kuczewski’s second arrest.
“This is a private business,” he continued, referring to Air California Adventure, Inc., the company he purchased from former San Diego police officer David Jebb, Gabriel Jebb’s father. The senior Jebb also suspended Kuczewski from Torrey Pines once when the former owned the gliderport concession.
The company and its rent-free lease came with a flight school that charges anywhere from $80 to $200 or more for flying lessons, plus a merchandise-packed gift shop, a grill, and a snack bar.
“Everyone thinks this business is a cash cow,” Marien says, laughing sardonically. “Hardly.”
He adds that he will let Kuczewski fly again.
“But not before the suspension is over,” Marien says. “There’s consequences in life, man. If you or I misbehave we get consequences; Bob’s no different. He may think he’s special, like a lot of narcissists do, but he’s not.”
Kuczewski refuses to submit to what he sees as Marien’s bullying and running of the gliderport “as a private club.”
“I’m now having to try to arrange meetings with the San Diego Police Department so that maybe we can come to some kind of an agreement; so that they’ll stop arresting me when I try to do what any other San Diego resident or visitor to the area can do,” says Kuczewski. “That’s walk onto a public park.”
Kuczewski says SDPD chief Shelley Zimmerman gave him a business card and said he should call the number on it and explain the situation at Torrey Pines to find out if anything could be done to mitigate his risk of being arrested every time he goes to Torrey Pines. Kuczewski says he called the number on the card and reached someone other than the chief.
“Someone was supposed to get back to me,” he says. “It’s been weeks and nothing.”
A few days after attempting to contact Zimmerman about the gliderport issue, the police referred me to the city attorney’s office. The city attorney had no comment other than to say it has complaints against Kuczewski it has chosen not to prosecute. Kuczewski and Marien agree that a fundamental question lies at the center of their feud: is Torrey Pines an aviation facility first, or is it a city park first?
“It’s a gliderport first,” says Marien without hesitation. “It’s a gliderport. I’m the flight director; and Bob is a safety hazard — period.”
“It’s a public park first,” Kuczewski says almost as quickly as Marien said the opposite.
What matters more than his or Kuczewski’s opinion, according to Marien, is how city officials perceive affairs at Torrey Pines. “Just ask the city,” says Marien. “They love us. I have a good relationship with the mayor’s office and we have good relations with the Real Estate Assets Department. They recently told me, ‘Not to worry, Robin; we’re very happy with the way you’re running it.’ Ask them yourself.”
I did. The emailed reply to that specific question from a spokesman for the city’s Real Estate Assets Department indicates that change may be coming to Torrey Pines:
“In the next couple of months, the City of San Diego will issue a Request for Proposals for the operations and redevelopment of the Torrey Pines Gliderport.”
Asked to settle the “park first or gliderport first” question, the city spokesman replied, “The Torrey Pines Gliderport is located within the Torrey Pines City Park. Air California Adventure currently leases the property used for the gliderport.”
By all accounts, there is longstanding tension between two sizable camps at Torrey Pines. That was demonstrated by an unusually full public gallery for a restraining-order proceeding. As an apparently frustrated Judge Ipema duly noted during the trial, restraining-order petitions are “supposed to be summary hearings.”
At certain points during the months-long trial, the small public gallery swelled with supporters from both Kuczewski’s camp and Marien’s.
“This has been going on for years,” says Kuczewski. “It started with David Jebb, who used to employ Robin Marien. They run the gliderport like their own private club. You’re either in with their small, insular group or you’re out. It’s about power. Robin and Gabe like to exercise that power: they can give you the gift of flight or they can take it away. They use it to manipulate people and get their way.”
Marien dismisses such accusation. But he agrees the conflict has been going on for years. “It’s not confined to the gliderport,” says Marien. “He goes online and badmouths us there all the time.”
A very recent post on Kuczewski’s Torrey Hawks Hang-gliding Club forum, posted by another user, asked fellow users, “BTW - What ever happened to Brad (D Jebb's Lower Posterior Sphincter Kisser) Hall?" [Note: Quote in article was modified to remove Brad Hall's name.]
But Marien’s camp is equally guilty of hurling insults at Kuczewski. During the trial, I heard one of Marien’s supporter’s critique Kuczewski’s appearance during the trial: “Look what he’s wearing,” the man said from his seat in the gallery in a voice loud enough to raise the bailiff’s eyebrows and earn him a stern glance from the deputy. “Doesn’t he own a real shirt?”
The adversaries’ fight has gone to the national level. Kuczewski holds the dubious distinction of being the only person to ever be recalled from a director’s seat on the U.S. Hang-gliding and Paragliding Association’s board of directors. Now the organization has revoked his membership altogether.
“[The association] has not publicized, outside of notification to its interested members, the fact that it has initiated a process to terminate Mr. Kuczewski’s membership,” replied Rich Hass, the organization’s president. That non-denial denial notwithstanding, Hass is definite in refuting a claim by Kuczewski about how losing his membership in the association will impact his ability to fly.
“Mr. Kuczewski may fly hang-gliders or paragliders, whether or not he remains a member of the U.S. Hang-gliding and Paragliding Association,” Hass wrote in an email. “The FAA regulations do not require pilots to be members of the association in order fly ultralights.”
That may be true; but, says Kuczewski, most major flying sites require insurance from the group. Besides, he says Hass’s organization has a dog in the fight and is working behind the scenes to help Marien’s cause. “They support Robin as the concessioner of the Torrey Pines Gliderport, because they feel that he brings in members to their organization,” he says.
Kuczewski says evidence of a shift at the national organization from a focus on hang-gliding to paragliding can be found in the group’s name, which once only mentioned hang-gliding.
“But paragliding is now actually bigger than hang-gliding,” he says. “That’s where Robin Marien’s focus is and that puts them in sync.”
Hass denies favoritism for one type of flying over another.
But Kuczewski’s attorney, Mike Malowney, says there’s a war going on between two communities of free-flight pilots and that Torrey Pines is the front line of that war.
“This is really a war between the traditional hang-gliding community, which tends to be older, and paragliders,” Malowney said during a recent phone interview. “Paragliding is far more lucrative for someone like Robin Marien. Every time those tandem flights go up, there’s another $200. It adds up quickly.”
But Marien insists he’s lucky to clear $100,000 in net profit in any year. Some years, he says, it’s more like $65,000 or $80,000.
“All it takes is one lawsuit settlement and you’re wiped out.”
Last year, Kuczewski testified in a deposition at Chris Saldaña’s law office as an expert witness against Marien, alleging under oath that safety violations contributed to an accident in 2012 in which a woman whose paraglider deflated fell dozens of feet onto the cliffs below Torrey Pines.
Then there was Lyne Perry, a pilot who committed suicide in 2011. Before she died, Perry, a geologist by profession, purportedly wrote that she was used to bullying by previous concessioners at Torrey Pines.
“I have been the victim of much bullying by some of the ‘in’ pilots,” the letter says. “...When David or Gabe Jebb bullied me, I let it go because I knew that they bullied most everyone, but when it came from pilots whom I thought were my friends, it devastated me.”
Marien, whose name is not mentioned in that letter, bristles at any notion that he or any of his friends or employees at Torrey Pines had any role in Perry’s decision to take her own life. “I cared about her,” he says, adding that he’s considering suing Kuczewski for slander for allegedly suggesting otherwise. “I’m still close with her son and the man she was married to.”
Lawsuits are par for the course in the local free-flight community. One of the stranger moments during the restraining-order trial was when Marien told the court that Kuczewski has a “creepy smile.”
“See, he’s doing it now,” Marien said from the witness stand.
“Just don’t look at him,” the judge replied. An awkward chuckle broke out in the public viewing gallery.
Asked what he believes Kuczewski’s motivations are, Marien responds, “Bob wants to take over. He thinks I make all this money and he wants to run the gliderport himself. He’s said as much at those city-council meetings where he’s always at, trying to make everyone listen to his opinion on everything.”
“That’s not what I want,” says Kuczewski, who holds the title of being the only pilot to have flown all four types of aircraft that fly at Torrey Pines. “I just want to fly, and I want people to do the right thing and operate the way the law says they should.”
Mike Malowney says it’s absurd to think that a guy with a GoPro camera hanging from his neck or a tiny flip-phone camera in his hand presents a safety hazard for pilots at Torrey Pines. He relates what he saw the first time he went to the gliderport after taking on Kuczewski’s case as evidence that safety is applied willy-nilly at the facility.
“It was a Sunday,” Malowney said. “I took my daughters with me because they’re young and I thought they would enjoy the park. We get there and there’s a pig, a pot-bellied pig on the flight field, just running around, all over the area where pilots land and take off. The pig runs up to my daughter, who is of course thrilled — ‘Daddy, look! It’s a pig!’”
Says Malowney, the pig turned out to belong to flight instructor Gabriel Jebb.
“That was a no-fly day,” says Jebb. “There were Santa Anas blowing.”
On Sunday, April 12, Kuczewski attempted again to assert his claimed right to visit Torrey Pines City Park. He only averted being arrested for a third time by agreeing to a police order to vacate the premises after hours of arguing with Jebb.
I was there to report on how events might unfold. As it turned out, we shot iPhone video of a leashless dog, as well as very small children and others roaming freely inside the restricted flight area where Kuczewski’s video-shooting allegedly created a safety hazard.
“How is that okay, but my client recording safety violations with a video camera is a safety violation?” asks Malowney.
The city’s Real Estate Assets Department is expected to announce a request for proposals for the Torrey Pines City Park and Gliderport lease soon.
