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OAH Docket No. 3-1006-19281-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF ARCHITECTURE, ENGINEERING, LAND SURVEYING,
LANDSCAPE ARCHITECTURE, GEOSCIENCE AND INTERIOR DESIGN
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In the Matter of the Architect License of Alvah Breitweiser, License No. 15118 |
FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on
before Administrative Law Judge Kathleen D. Sheehy for a prehearing conference
on November 28, 2007, at 1:30 p.m., at the Office of Administrative Hearings,
Michele M. Owen, Assistant Attorney General,
Alvah Breitweiser,
STATEMENT OF ISSUES
The
issues presented in this case are whether the Board should take disciplinary
action against the Respondent because;
1. The Respondent has violated statutes,
rules, or orders that the Board is empowered to enforce, pursuant to Minn.
Stat. § 326.111, subd. 4(a)(1) (2006):
2. Respondent has been convicted of a crime
involving moral turpitude, or has engaged in conduct or acts that are
fraudulent, deceptive or dishonest, and that adversely reflect on his ability
or fitness to engage in the practice of architecture, pursuant to Minn. Stat.
§§ 326.11 and 326.111, subd. 4(a)(2), and in violation of Minn. R. 1805.0200
(2005);
3. Respondent has
engaged in conduct or acts that are negligent or otherwise in violation of the
standards established by Minn. R. chapters 1800 and 1805, pursuant to Minn.
Stat. § 326.111, subd. 4(a)(3) (2006);
4. Respondent
has been convicted of or has pled guilty to a felony, an element of which is
dishonesty or fraud, or has engaged in conduct reflecting adversely on his
ability or fitness to engage in the practice of architecture, pursuant to Minn.
Stat. § 326.111, subd. 4(a)(4), and in violation of Minn. R. 1805.0200 and
1805.0700;
5. Respondent
employed fraud or deception in obtaining a certificate, license, renewal or
reinstatement pursuant to Minn. Stat. §§ 326.11, subd. 1, and 326.111, subd.
4(a)(5), and in violation of Minn. R. 1805.0200;
6. Respondent
has had his architecture license revoked, suspended, canceled, limited, or not
renewed for cause in any state, commonwealth or territories in the United
States, pursuant to Minn. Stat. § 326.111, subd. 4(a)(6) (2006), and in
violation of Minn. R. 1805.0200 and 1805.0700 (2005);
7. Respondent
failed to meet a requirement for the issuance or renewal of his architect
license pursuant to Minn. Stat. § 326.111, subd. 4(a)(8) (2006), and in
violation of Minn. R. 1805.0700 (2005); and
8. Respondent
has attached his seal or signature to a plan, specification, report, plat, or
other architectural document not prepared by him or under his direct
supervision, pursuant to Minn. Stat. §§ 326.11, subd. 1, 326.111, subd.
4(a)(9), and 326.12 (2006), and in violation of Minn. R. 1800.4200, 1800.4300,
and 1805.0200 (2005).
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On October 19, 2007, the Complaint Committee sent by certified
and first-class mail a copy of the Notice
and Order for Hearing and Prehearing Conference (Notice and Order for Hearing)
to Alvah Breitweiser,
2.
The Notice and Order for Hearing scheduled a prehearing conference
in this matter at 1:30 p.m. on November 28, 2007, at the Office of
Administrative Hearings,
3.
The Notice and Order for Hearing specifically notified the
Respondent that failure to appear at the prehearing conference or hearing may
result in a finding that Respondent is in default, that the Board’s allegations
contained in the Notice and Order for Hearing may be accepted as true, and that
its proposed action may be upheld.[2]
4.
The Respondent did not appear for the prehearing conference,
nor did Respondent contact the Administrative Law Judge prior to the prehearing
conference to seek a continuance or request any other relief.
5.
Because Respondent failed to appear for the prehearing
conference, he is in default.
6.
Pursuant to Minn. R. 1400.6000, the allegations contained in
the Notice and Order for Hearing are taken as
true and incorporated by reference into these Findings of Fact.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1.
The Administrative Law Judge and the Board are authorized to
consider this matter under Minn. Stat. §§ 14.50, 326.11, and 326.111, subd. 4(d)
(2006).
2.
Respondent received due, proper and timely notice of the
charges against him and of the time and place of the prehearing conference. This matter is, therefore, properly before
the Board and the Administrative Law Judge.
3.
The Board has complied with all relevant procedural legal
requirements.
4.
Under Minn. R. 1400.6000, a contested case may be decided
adversely to a party who defaults. On
default, the allegations set out in the Notice and Order for Hearing or other
pleadings may be taken as true or deemed proved without further evidence.
5.
The Respondent is in default as a result of his failure to
appear at the prehearing conference.
6.
The Board has grounds to take disciplinary action against
the Respondent pursuant to Minn. Stat. § 326.111, subd. 4(a)(1) (2006), because
he violated several statutes and rules (identified below) that the Board is
empowered to enforce.
7.
In May 2001 the Respondent was convicted of bank fraud in
U.S. District Court for the Middle District of Florida, a crime involving moral
turpitude. Discipline of the
Respondent’s
8.
In January 2004 the Respondent was disciplined by the
Florida Board of Architecture and Interior Design for negligence in the
practice of architecture. Discipline of the Respondent’s
9.
The Respondent’s 2001 conviction of bank fraud is a felony,
an element of which is dishonesty or fraud.
Discipline against his
10.
When the
Respondent applied to renew his
11.
The Respondent’s
architecture license has been revoked, suspended, canceled, limited, or not
renewed for cause in numerous other states between 1999 and 2006 (Oklahoma,
Colorado, Florida, New York, North Carolina, South Carolina, Pennsylvania,
Tennessee, Texas, Ohio, Wisconsin, Virginia, Illinois, and Delaware) for
reasons that would in the State of Minnesota constitute a violation of Minn.
Stat. §§ 326.02 – 326.15 or Minn. R. ch. 1805.
Disciplinary action against the Respondent’s
12.
In January 2005
the National Council of Architectural Registration Boards revoked the
Respondent’s certification. Discipline
against the Respondent’s
13.
In 2004 the
Florida Board of Architecture and Interior Design disciplined the Respondent’s
license because he attached his seal or signature to a plan, specification,
report, plat, or other architectural document not prepared by him or under his
direct supervision. Discipline of the
Respondent’s
14.
Disciplinary
action against the Respondent’s license is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED: that the Commissioner take disciplinary action against the license
of Alvah Breitweiser.
Dated: December 3, 2007.
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s/Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
Reported: Default
This
Report is a recommendation, not a final decision. The Board of Architecture, Engineering, Land
Surveying, Landscape Architecture, Geoscience and Interior Design will make the
final decision after reviewing the record and may adopt, reject or modify these
Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Board’s
decision shall not be made until this Report has been available to the parties
to the proceeding for at least ten (10) days.
An opportunity must be afforded to each party adversely affected by this
Report to file exceptions and present argument to the Board. Parties should contact Doreen Johnson Frost,
Executive Director of the Complaint Committee,
If the Board 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 Board 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 Board, or upon the expiration of the deadline for doing so. The Board must notify the parties and the Administrative Law Judge of the date on which the record closes. Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.