NOTE:
This document is an earlier version of the ALJ Recommendation in his
matter. The text of this document is not
the final Recommendation issued by the ALJ in this matter. The imaged version of this Recommentaion should
be referred to for the actual text of the ALJ Recommendation.
OAH Docket No. 11-0900-20081-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
|
In the Matter of the Administrative Penalty Order Issued to Susan DeLaittre |
FINDINGS OF FACT, CONCLUSIONS, AND
RECOMMENDATION |
This matter is pending before
Administrative Law Judge Barbara L. Neilson pursuant to a Notice and Order for
Hearing filed on
Jocelyn F. Olson, Assistant Attorney General, appeared on behalf of the Minnesota Department of Health. David E. Albright, Attorney at Law, appeared on behalf of the Respondent, Susan DeLaittre.
STATEMENT OF ISSUES
The issues presented in this case are as follows:
1. Did the Respondent violate Minn. Stat. § 157.16, subd. 1, by failing to obtain a license to operate a food and beverage service establishment for her catering operation?
2. Did the Department of Health properly issue an Administrative Penalty Order to the Respondent?
3. Was the $10,000 nonforgivable penalty assessed in the Administrative Penalty Order reasonable under Minn. Stat. §§ 326B.082, 326B.083, and 14.045?
The Administrative Law Judge concludes that the Respondent violated Minn.
Stat. § 157.16 and that the Department properly issued the Administrative Penalty
Order.
Based on all the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On
2.
Between the early 1980’s and the end of 2007,
the Respondent worked for several different catering companies, including Town
and Country Caterers, Twin City Banquet, and Simple to Grand. Her duties for those companies included event
planning and the preparation and service of food. In early 2008, she decided to start her own
catering or food service business and began looking at facilities that she
could use. She leased a facility in
3. In May 2008, Wayne Rice, the owner of the Chestnuts Ballroom in Chaska, Minnesota, approached the Respondent and asked her to cater a banquet to be held on June 19, 2008. The banquet was to be held in conjunction with the Lions All-Star Baseball Tournament. The tournament organizer had decided that the Chestnuts Ballroom facility would be used for the event. The Respondent was informed by Mr. Rice that Chestnuts Ballroom would provide the dishes and silverware for the banquet. He also told her that a woman named “Linda” (last name unknown), who had previously worked in the kitchen at Chestnuts and had been its catering manager, would work with her at the banquet. It was Respondent’s understanding that Linda would make sure the dishes and silverware were ready for the banquet and assist with set-up, serving, and clean-up.[3]
4. SEE SCANNED DOCUMENT FOR FINDING.
5.
Because the facility she had intended to lease
was not available in time for the banquet, the Respondent decided to prepare
the food for the June 19, 2008, banquet at an empty house in
6.
On June 19, 2008, the Respondent prepared the
food for the banquet at the
7. By June 19, 2008, the kitchen of Chestnuts Ballroom was no longer operating. When the Respondent arrived with the food for the banquet, she discovered that the former occupant had left dirty dishes sitting on the counter. She also was aware that the silverware was dirty. The Respondent washed the dishes and silverware by hand prior to putting them out for the serving line.[6]
8. SEE SCANNED DOCUMENT FOR FINDING.
9. SEE SCANNED DOCUMENT FOR FINDING.
10.
On
11. After the MDH receives a report of food-borne illness, epidemiologists working with the Department interview people who were exposed (both those who became ill and those who did not), compare the food items each group consumed, and document the signs and symptoms of those who became ill. The Department routinely excludes from the statistical analysis people who are exposed and do not become sick at all or who have mild symptoms.[8] In this instance, MDH epidemiologist Tricia McDonald was assigned to oversee the investigation and write a report. Ms. McDonald was supervised by Dr. Kirk Smith, who heads the Department’s Foodborne, Vectorborne, and Zoonotic Diseases Unit. Erin Gudknecht, an Environmental Health Specialist, was assigned to conduct the investigation and write the report for the Department’s Environmental Health Services Section.[9]
12. MDH epidemiologists obtained a list of those who attended the banquet from the tournament organizer. Epidemiologists interviewed 67 banquet attendees to obtain information about the items of food and beverages they consumed at the banquet and illness histories. Of that number, the Department identified 29 individuals who met its definition of a “case,” i.e., a banquet attendee who subsequently developed vomiting and/or experienced three or more episodes of diarrhea within a 24-hour period. Five people who reported illness but did not meet the case definition were excluded from further analysis. The median incubation period was 9 hours, and the median duration of illness was 14 hours. The Department did not collect stool samples from individuals who had become sick due to the amount of time that had elapsed since the onset of the illness. The germ responsible for the illnesses of this nature would most likely not be present in an individual’s system after a couple of days.[10]
13. The Department compared the proportion of each item consumed by those who became sick to the proportion of the same item consumed by those who did not become sick, and conducted an analysis to determine if there was a statistically significant association. All of the individuals interviewed by the Department who had become sick had consumed beef loin, and 23 of 27 had consumed the au jus sauce.[11]
14. The symptoms reported by those who became ill after the banquet were predominantly diarrhea and cramps. A much lower proportion of the people who became sick complained of fever or vomiting.[12] There is no evidence that any of the affected individuals had to be hospitalized.[13] The illness of some of the children involved in the tournament affected their game performance or rendered them unable to play in scheduled games. Some of the affected adults were unable to go to work.[14]
15. SEE SCANNED DOCUMENT FOR FINDING.
16. After further investigation by MDH epidemiologists and sanitarians, Ms. McDonald issued a report which was reviewed and approved by Dr. Smith. The report contained the following conclusion:
This was a foodborne outbreak associated with a baseball tournament banquet. The illnesses were consistent with a bacterial intoxication caused by Clostridium perfringens; however, since no stool specimens were obtained, the etiology of the outbreak could not be confirmed. The au jus sauce made from the beef drippings was implicated as the outbreak vehicle. The outbreak most likely resulted from improper cooling procedures and improper hot- and cold-holding temperatures which created an environment in which C. perfringens proliferated and survived in the au jus sauce.[15]
17. Clostridium perfringens is a germ that produces toxins in the intestines of humans who consume infected food and causes them to become sick. It is common in animals and in the environment and is found in a large proportion of raw meats and gravies from meats.[16] The Control of Communicable Diseases Manual, an authoritative source in the field, indicates the intestinal illness caused by Clostridium perfringens food intoxication is characterized by the sudden onset of colic (abdominal pain) followed by diarrhea. Although nausea is common, fever and vomiting are usually absent. A 10- to 12-hour incubation period is typical for Clostridium perfringens. The Manual states that it is “[g]enerally a mild disease of short duration, 1 day or less,” and is “rarely fatal in healthy people.” The germ is typically transmitted by ingesting food “that was contaminated by soil or feces and then held under conditions that permit multiplication of the organism.” The Manual further notes:
Almost all outbreaks are associated with inadequately heated or reheated meats, usually stews, meat pies, and gravies made of beef, turkey or chicken. Spores survive normal cooking temperatures, germinate and multiply during slow cooling, storage at ambient temperature, and/or inadequate rewarming. Outbreaks are usually traced to food catering firms, restaurants, cafeterias and schools that have inadequate cooling and refrigeration facilities for large-scale service.
The Manual goes on to identify the following preventive measures:
1) Educate food handlers about the risks inherent in large scale cooking, especially of meat dishes. Where possible, encourage serving hot dishes while still hot from initial cooking.
2) Serve meat dishes hot, as soon as they are cooked, or cool them rapidly in a properly designed chiller and refrigerate until serving time; reheating, if necessary, should be thorough (internal temperature of at least 70°C/158°F, preferably 75°C/167°F or higher) and rapid. Do not partially cook meat and poultry one day and reheat the next, unless it can be stored at a safe temperature. Large cuts of meat should be thoroughly cooked; for more rapid cooling of cooked foods, divide stews and similar dishes prepared in bulk into many shallow containers and place in a rapid chiller.[17]
18. The Department concluded that the 9-hour median incubation period for those who became sick after eating at the banquet was consistent with that typical of Clostridium perfringens, and that the signs and symptoms people reported after the banquet and the duration of the illness were also classic for the Clostridium perfringens germ.[18]
19. The Department also determined that the au jus sauce from beef drippings was the most likely source of the outbreak because improper cooling procedures and improper hot- and cold-holding temperatures created an environment in the sauce in which Clostridium perfringens proliferated and survived.[19]
20. The Department was unable to test any food that was actually ingested during the banquet. The Department conducted sampling of the frozen left-over chicken and beef served at the banquet. Although no Clostridium perfingens was found in those samples, the Department did not attach much significance to that finding because Clostridium perfringens could have been present in the samples at a low level that was not detected by testing or could have been present in certain other cuts or packages of meat used in the banquet. There was no au jus sauce available for testing by the Department.[20]
21. The report prepared by Ms. McDonald noted the etiology could not be confirmed because the Department did not have lab confirmation of the presence of Clostridium perfringens. However, in light of the signs and symptoms, incubation period, and duration of the illness, Dr. Smith is extremely confident that the proliferation of Clostridium perfringens in the au jus sauce was the vehicle for transmission of the illness.[21]
22.
23.
The
Department also conducted an investigation regarding the manner in which the
Respondent prepared and transported the food she served at the banquet, and the
location where the preparation occurred.
On June 24, 2008, Erin Gudknecht, an Environmental Health Specialist employed
by the Department’s Environmental Health Division, along with Tricia McDonald
and Pam Steinbach, inspected the
24. The Respondent told the MDH investigators on June 24 and during a telephone conversation that she had been concerned because the silverware and/or dishes at the banquet location were not clean when she arrived and no sanitizer was present. She said that she had washed the silverware by hand prior to serving the food. Testimony of A. Bogart and E. Gudknecht.
25. Although the use of unwashed or re-used silverware might be an environmental health violation, it would not typically constitute a significant factor in the proliferation of toxins or the transmission of food-borne illness. In a Clostridium perfringens outbreak in which there is a strong association with the food served, the use of unwashed silverware would not affect the extent or seriousness of the outbreak. Accordingly, the Department determined that silverware was not an issue in this outbreak and there was no need to investigate that further.[22]
26.
27. After the June 24, 2008, inspection, Ms. Gudknecht prepared a Food and Beverage Establishment Inspection Report in which she concluded that the Respondent had catered an event in an unlicensed, domestic kitchen, without state certified licensure, and had thereby violated two provisions of the Food Code: Minn. R. 4626.1755, requiring a license to operate a food establishment, and 4626.2010, requiring at least one full-time state-certified food manager. To become a certified food manager, one must take a required course and pass a test. The Respondent did not allege that she employed a certified food manager, and there is no evidence that she is herself a certified food manager. Ex. 7; Testimony of E. Gudknecht. Ms. Gudknecht provided her report to others in the Department and did not participate in deciding what further action should be taken. Ms. Gudknecht’s investigation focused only on the foodborne illness allegation and Respondent’s catering services; she did not investigate the facility where the banquet was held, nor did she consider the dishes used in the banquet to be relevant to her investigation. Testimony of E. Gudknecht.
28.
The
Commissioner of Health has developed a Plan for the Use of Administrative
Penalty and Cease and Desist Authority and Other Division-wide Enforcement
Tools ("the Plan") to serve as guidance in using the Administrative
Penalty Order authority. The Plan
includes a penalty calculation worksheet and instructions, including a penalty
calculation matrix, to guide Department staff in calculating administrative
penalties.[23] Under Part II, item C of the Plan, the
performance of work without a required license is included in a list of
"serious" violations.[24]
29.
On July 3, 2008, Department staff conducted an
enforcement forum to decide on an appropriate enforcement action with respect
to the Respondent. The following
individuals participated in the forum:
30. The enforcement forum determined that the Respondent had operated a “food and beverage service establishment” (as defined in Minn. Stat. § 157.15, subd. 5) without a license, and therefore had violated Minn. Stat. § 157.16, subd. 1. For purposes of the Administrative Penalty Order, the forum considered the Respondent to have committed only one violation of the controlling statutory provision (Minn. Stat. § 157.16), even though Departmental rules may also have been violated. Testimony of M. Peloquin. Because there was no history of a similar violation by the Respondent, the violation was not treated as repeated in nature. However, the forum participants determined that the violation was serious and determined that a nonforgivable penalty was necessary to deter future violations. The forum found that the "potential for harm" was severe because a foodborne illness outbreak occurred when food was prepared in this unlicensed food service establishment and was served to patrons of a gather at another location, and the deviation from compliance was "severe" because the Respondent failed to get approval and obtain a license prior to operating the food service establishment as required by statute. The penalty matrix set forth in the Plan provides a range of $5,000-$10,000 for this type of violation. The forum participants chose the top of the range ($10,000) for the base penalty because the Respondent’s improper food handling resulted in multiple people becoming ill.[26] The forum did not make any adjustment to the base penalty in connection with Step 3 of the calculation. The forum thus concluded that a $10,000 nonforgivable penalty should be assessed against the Respondent.[27]
31.
On August 6, 2008, the Department issued an
Administrative Penalty Order to the Respondent assessing a $10,000
non-forgivable penalty for violation of Minn. Stat. § 157.16, subd. 1, based
upon the Respondent's failure to obtain a license prior to operating a food and
beverage service establishment. The Order required the Respondent to
immediately discontinue operating the food and beverage service establishment
until she had obtained a license, in full accordance with the requirements of
Minn. Stat. § 157.16, subd. 1. The Order
and the accompanying letter informed the Respondent of her right to contest the
Administrative Penalty Order in a hearing before an Administrative Law Judge.[28]
32.
By letter dated August 22, 2008, the Respondent
requested a hearing regarding the imposition of the nonforgivable $10,000
penalty on the grounds that the penalty was excessive and not justified by the
conduct complained of or the statutory criteria, and because “[t]he conduct
complained of may not be a violation of law.”
The appeal letter pointed out that the Respondent had no disciplinary
history and argued that “few if any of the statutory criteria exist.”[29]
33. The Respondent has not taken any catering jobs since the June 19, 2008, banquet. At the time of the hearing, the Respondent was no longer involved in the catering business. There is no evidence of prior or subsequent violations by the Respondent.[30]
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The
Administrative Law Judge and the Commissioner of Health have jurisdiction over
this matter pursuant to Minn. Stat. §§ 14.50, xxxxxxxxxx (2008).
2.
The
Notice and Order for Hearing are proper in all respects and the Department has
complied with all procedural requirements of law and rule.
3.
The Department is responsible for adopting and
enforcing rules establishing standards for food and beverage service
establishments, hotels, motels, lodging establishments, and resorts.[31] The Food Code adopted by the Department,
which is set forth in Minnesota Rules Chapter 4626, outlines requirements and
standards for food and beverage service establishments. The Department has authority to enforce the
Food Code.
4.
Under
5.
The requirements for obtaining a license are
governed by the Food Code.[34] The Food Code also specifies that a person
without a valid license must not operate a food and beverage service
establishment.[35]
6.
Minn.
Stat. § 144.99, subd. 1, authorizes the Commissioner of Health to
enforce Chapter 157 of the Minnesota Statutes and rules adopted by the
Department for the preservation of public health. Minn. Stat. § 144.99, subd. 4(a), states that
the Commissioner may issue an order requiring violations to be corrected and
administratively assessing monetary penalties for violations of those statutes and
rules. Subdivision 4(a) further specifies
that the maximum amount of an administrative penalty order is $10,000 for each
violator for all violations by that violator identified in an inspection or
review of compliance.
7.
Minn. Stat. § 144.99, subd. 4, requires that the
procedures set forth in Minn. Stat. § 144.991 must be followed when issuing
administrative penalty orders. Section
144.991, subd. 1(a), states that, in determining the amount of a penalty, the
Commissioner may consider:
(1) the
willfulness of the violation;
(2) the
gravity of the violation, including damage to humans, animals, air, water,
land, or other natural resources of the state;
(3) the
history of past violations;
(4) the
number of violations;
(5) the
economic benefit gained by the person by allowing or committing the violation;
and
(6) other
factors as justice may require, if the commissioner specifically identifies the
additional factors in the commissioner's order.
Section 144.991 goes on to state that, if
the violation is not "serious" or "repeated," the penalty
"must be forgiven" if the violation is corrected within 30 days or
the person to whom the order was issued has developed a corrective plan
acceptable to the Commissioner. For serious or repeat violations, the Commissioner
may assess a penalty which will not be forgiven even if timely corrective
action is taken.[36]
8.
In
Minn. Stat. § 144.99, subd. 7, the Legislature directed the Commissioner of
Health to finalize a plan for the Department when using the administrative
penalty authority.
9.
Under
Minn. Stat. § 144.991, subd. 5(c), the Administrative Law Judge may not
recommend a change in the proposed penalty amount unless the Judge determines
that, based on the factors set forth in Minn. Stat. § 144.991, subd. 1, the amount
of the penalty is unreasonable.
10.
The
Respondent operated a food and beverage service establishment without a valid
license, in violation of xxxxx.
11.
The
Department of Health properly issued an Administrative Penalty Order to the
Respondent based on the violation of Minn. Stat. § xxxxxx and Minn. R. xxxxxxx.
12.
The
Commissioner of Health is authorized to require the Respondent to pay an
appropriate monetary penalty. Because the penalty proposed by the
Department is unreasonable, it should be reduced.
13.
These
Conclusions are reached for the reasons set forth in the Memorandum below,
which is incorporated by reference in these Conclusions.
Based upon these Conclusions, and for the
reasons explained in the accompanying Memorandum, the Administrative Law Judge
makes the following:
RECOMMENDATION
IT
IS RECOMMENDED that:
The
Commissioner of Health affirm the Administrative Penalty Order issued against the
Respondent, Susan DeLaittre, but reduce
the monetary penalty to an appropriate level.
Dated: March 16, 2009 __________________________
BARBARA L. NEILSON
Administrative Law Judge
NOTICE
This report is a recommendation, not a final
decision. The Commissioner of Health will
make the final decision after a review of the record and may adopt, reject or
modify these Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. §xxxxxxxxxxxxxx , the
Commissioner shall not make a final decision until this Report has been made
available to the parties for at least five
days. Any person aggrieved by this
Report may, within those five days, file written comments on the Report with
the Commissioner. The Commissioner must
consider the comments and enter them in the record. Parties should contact xxxxxxxxxxxxxxxxxxx,
to discuss the procedure for filing comments.
If the Commissioner fails to issue a final
decision within 90 days of the close of the record, this report will constitute
the final agency decision under Minn. Stat. § 14.62, subd. 2a. In order to
comply with this statute, the Commissioner must then return the record to the
Administrative Law Judge within 10 working days to allow the Judge to determine
the discipline to be imposed. The record closes upon the filing of exceptions
to the report and the presentation of argument to the Commissioner, or upon the
expiration of the deadline for doing so.
The Commissioner must notify the parties and the Administrative Law
Judge of the date on which the record closes.
Pursuant to Minn. Stat. § 14.62, subd. 1,
the Commissioner is required to serve its final decision upon each party and
the Administrative Law Judge by first class mail.
MEMORANDUM
In this case, the Department seeks to impose a penalty on the Respondent for operating a food and beverage service establishment without a license. The Department alleges that improper cooling procedures and improper hot- and cold-holding temperatures created an environment in au jus sauce from beef drippings in which the bacteria Clostridium perfringens proliferated and survived, causing many individuals who attended the banquet to become ill. The Respondent argues that her conduct is not in violation of law, and asserts that xxxxxxxxxx. She also contends that the monetary penalty assessed in the Administrative Penalty Order is unreasonable and should be reduced.
There is no dispute that the Respondent acted as the caterer for the banquet, and was not licensed to provide that service.
Based upon review of the entire record in this case, the Administrative Law Judge concludes that
The Administrative Law Judge agrees that a violation of Minn. Rules part xxxxxxxxx occurred when xxxxxxxxxxxxx. It is appropriate to hold the Respondent accountable for the violation since she ultimately bears the responsibility to ensure that xxxxxxxxxxxxx. The Department was guided by the Enforcement Plan xxxxxxxxxxx, and provided evidence that all of the factors required by statute were considered in issuing the Administrative Penalty Order and monetary penalty.
Primary cooking does not kill the spoors of the bacteria and, if the food is improperly cooled, improperly held, or improperly reheated, the organisms proliferate and grow to much higher numbers.
The Chestnuts Ballroom had a license until approximately May or June of 2008, but no longer held a license at the time of the banquet, for reasons that were not explained in this proceeding. Chestnuts Ballroom is now closed. No license is required for a restaurant to rent out its space for a fee and provide an employee to help serve and clean up. Testimony of E. Gudknecht, Mark Peloquin.
Mr. Rice told the Respondent in February 2008, that the Chestnuts Ballroom was “all licensed” and that the MDH had visited within the past few months and had given it a clean bill.[37] The Respondent understood that if an establishment was licensed, that license would cover catering operations that occurred at the establishment. The Respondent was not aware that the Chestnuts Ballroom had lost its license.[38]
The further issue is whether or not the amount of the penalty is unreasonable. The Department determined that the potential for harm was severe because at least 29 people became ill after eating the food at the banquet and the deviation from compliance was severe because the Respondent failed to obtain a license before catering the banquet. The Department chose the top of the range set forth on the penalty matrix because actual harm (illness) resulted from Respondent’s improper food handling. The Department argues that the calculations were consistent with the Plan and resulted in a reasonable penalty amount.
The Respondent asserted that she believed that only the establishment had to be licensed, and not the person. She testified that Mr. Rice had informed her in February 2008 that Chestnuts was licensed, and never informed her that it was no longer licensed by the time the banquet was held. The Respondent believed that Chestnuts’ license “would cover the catering end of things” and that it would be acceptable for her to use an empty facility to prepare the food and then transport it to Chestnuts. The Department witnesses testified that the Respondent would have needed to have a license even if Chestnuts had been licensed at that time. It was not reasonable for the Respondent to believe that a license covering Chestnuts’ kitchen would cover her preparation of food in a different location.
The Respondent argues that the Department is obligated to make downward adjustments to the base penalty in Step 3 if one or more of the factors does not exist (i.e., if the violation was not willful, there was no history of past violations, there was only one current violation, or the violator gained no economic benefit by engaging in the violation. The Department responded that the Legislature did not specify the manner in which the factors are to be considered, but gave the Department discretion to specify the manner in which the factors would be considered. It points out that the Department’s Plan indicates that consideration of the factors of willfulness, history of violations, number of current violations, and economic benefit may justify an upward adjustment of the penalty, but not a downward adjustment, and asserts that the Department’s Plan is entitled to deference. The Department argues that the penalty calculation methodology set forth in the Plan is reasonable and consistent with the legislative intent reflected in Minn. Stat. § 144.991, subd. 1. The Department argues that it is appropriate to defer to the agency’s interpretation when the language is ambiguous and the agency’s interpretation is one of long standing, and to give “considerable deference” when the statutory language is “unclear or susceptible to different interpretations.”[39]
Under the Enforcement Plan, the Department is to consider “both the extent of the potential for harm from the violation and the deviation from compliance with the rule or statute violated by a regulated party.”[40] The Enforcement Plan authorizes issuance of a nonforgivable administrative penalty for repeated or serious violations, and it indicates that serious violations “include conduct showing disregard of requirements or standards, or violations that present an actual or potential danger to public health or natural resources.”[41] The Enforcement Plan expressly includes the “failure to xxxxxxxxxxxx” as one of the types of violations that “Division regulatory programs are likely to consider . . . serious.”[42] Accordingly, it appears that the Commissioner’s determination that the violation in the current case was serious and warranted imposition of a nonforgivable penalty was in accordance with the Enforcement Plan and must be assumed to be reasonable.
It is important for the Department to have an opportunity to be aware of and approve a food service establishment so it can inspect to ensure compliance with the Food Code and relevant statutes. (Peloquin testimony)
Under the Enforcement Plan, the Department can only lower the amount of the penalty based upon consideration of mitigating circumstances during the calculation of the base penalty. Mitigating circumstances are considered during the discussion of the deviation from compliance and potential for harm. The forum relied upon information received from the Department’s epidemiology section and the report from the sanitarian. The forum was aware that another person was involved and that an allegation had been made that the dishes were not washed. (Peloquin)
For a single violation of any severity, the highest sanction permissible under law is $10,000.
However, the Administrative Law Judge finds that the Department’s determination in this case that the deviation from compliance was severe and the potential for harm was moderate to be unreasonable and not in accordance with the Enforcement Plan. The Plan provides the following guidance for applying these factors:
When calculating the potential for harm to humans, animals, air, water, land, or other natural resources of the state, you should consider the risk of actual harm caused by the violation. Because many division laws and regulations are preventive in nature, the focus is on potential for harm and not on actual harm. Where you observe actual harm from a violation, the potential for harm has been realized and the rating may reflect this fact.
When calculating deviation from compliance, you should consider the quantity or extent of the violation, i.e., how much, how far.
It is evident that Delzer Construction was aware of the Plumbing Code requirements with respect to the submission and approval of plans, did not intend to violate those requirements, and went forward in good faith with the plumbing installation after being told by the general contractor, Curtis Construction, that the plans had been submitted and, at a minimum, oral approval had been obtained. Upon completion of the plumbing installation, the work remained exposed for some length of time, and Delzer promptly called for an inspection by Mr. Topp, the DOLI plumbing inspector. There is no evidence that Delzer installed any improper materials or employed any deficient methods, and the plans were ultimately approved. Under these circumstances, it appears that the deviation from compliance should be reduced to “moderate” and the potential for harm should be reduced to “minor.” Under the matrix set forth in the Enforcement Plan, the appropriate penalty range for a minor potential for harm and a moderate deviation from compliance is $200 to $1,000.
Moreover, the information set forth on the DOLI website with respect to Plumbing Enforcement Actions taken between January 1, 2008, and July 31, 2008, suggests that a $1,000 nonforgivable fine is typically ordered for a failure to submit plans, which is the only violation alleged and substantiated here.[43] Because the information on the DOLI website is sketchy and does not provide many details about the alleged violations in those cases, it is not possible to assess the similarity between the current case and those cases. The Administrative Law Judge recommends that the Commissioner review these actions and consider whether the amount of the penalty should be reduced to be consistent with other recent penalties imposed in similar cases.
B. L. N.
[1] Exhibits 1, 3, 10.
[2] Testimony of Susan DeLaittre.
[3] Testimony of S. DeLaittre.
[4]
Testimony of Erin Gudknecht,
[5]
Ex. 4 at 2; Testimony of
[6] Testimony of E. Gudknecht, A. Bogard, S. DeLaittre.
[7] Ex. 4 at 1; Testimony of Kirk Smith.
[8] Testimony of K. Smith.
[9] Testimony of K. Smith.
[10] Ex. 4 at 1; Testimony of K. Smith.
[11] Testimony of K. Smith, A. Bogart; Ex. 4.
[12] Ex. 4 at 1; Testimony of K. Smith, A. Bogart, Mark Peloquin.
[13] Testimony of M. Peloquin.
[14] Testimony of A. Bogart.
[15] Ex. 4 at 2; Testimony of K. Smith.
[16] Testimony of K. Smith; see also Ex. 5.
[17] Ex. 5; Testimony of K. Smith.
[18] Testimony of K. Smith, Ex. 5.
[19] Ex. 4 at 2; Testimony of K. Smith.
[20] Testimony of K. Smith.
[21] Testimony of K. Smith.
[22] Testimony of K. Smith, A. Bogart.
[23] Exhibit 8 (penalty calculation worksheet and matrix are on pages 59-60).
[24] Exhibit 8 at 19; Testimony of Mark Peloquin. SHOULD CITE BE TO PAGE 15?
[25] Testimony of M. Peloquin.
[26] Ex. 8 at 59; Ex. 9 at 3.
[27] Exs. 8, 9; Testimony of M. Peloquin.
[28] Ex. 3; Testimony of M. Peloquin.
[29] Ex. 10; Testimony of M. Peloquin.
[30] Testimony of S. DeLaittre, E. Gudknecht.
[31]
[32]
[33]
[34]
[35]
[36] Minn. Stat. § 144.991, subd. 4(a) and (b).
[37] Testimony of S. DeLaittre.
[38] Testimony of S. DeLaittre.
[39]
See In re the Cities of
[40] Exhibit 4 at 11.
[41] Exhibit 4 at 14-15; see also Appendix A at A-7, Appendix B at B-2, and Appendix C at 2.
[42] Exhibit 4 at 15; see also Appendix A at A-7; Appendix B at B-2; and Appendix C at 2.