7-1302-11291-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA BOARD OF TEACHING

 

 

In the Matter of the Teacher License Application of Choua Lee

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

The above-entitled matter came on for hearing before Administrative Law Judge (ALJ) Richard C. Luis on September 18, 1997 at the Office of Administrative Hearings in Minneapolis.  The record closed on December 15, 1997.

Bernard E. Johnson, Assistant Attorney General, 445 Minnesota Street, Suite 200, St. Paul, Minnesota, 55101-2130, appeared on behalf of the staff of the Minnesota Board of Teaching (“Board”).

T. Christopher Thao, Esq., Thao and Li, Boulevard Plaza, 7038 Brooklyn Boulevard, Minneapolis, Minnesota 55429, appeared on behalf of Choua Lee (“Applicant”).

This Report is a recommendation, not a final decision.  The Minnesota Board of Teaching will make the final decision after a review of the record which may adopt, reject or modify the Findings of Fact, Conclusions and Recommendation contained herein.  Pursuant to Minn. Stat. § 14.61, the final decision of the Board shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and to present argument to the Board.  Parties should contact Judith A. Wain, Executive Secretary, Minnesota Board of Teaching, 608 Capitol Square, 550 Cedar Street, St. Paul, Minnesota, 55101, telephone (612) 296-2415, to ascertain the procedure for filing exceptions or presenting argument.

STATEMENT OF ISSUE

Whether Choua Lee met the occupational experience requirement for a secondary vocational license in sales and marketing.

Based upon all the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.  Choua Lee is a 31 year old Hmong artisan and businesswoman who designs and sells hand-made quilts.  Lee has been designing and selling quilts since 1987.  From 1987 through 1993, Lee worked full-time or approximately 40 hours a week in her quilting business.  (T. at pp. 85-87)

2.  Lee designs quilts by creating the pattern for the quilt top and choosing and coordinating the color and fabric.  The actual sewing or production of the quilt top is done by various people Lee pays for piece work.  Once the quilts are made, Lee markets and sells the quilts to retail outlet stores and individual customers.  Lee’s customers have included Quilting Friends, a retail outlet store owned by Mable Burkholder of Fleetwood, Pennsylvania and Witmer Quilt Shop, a store owned by Emma Witmer of New Holland, Pennsylvania.  (Ex. 16).  Lee estimates that when she worked full-time at her quilting business she spent 35 hours a week on marketing and sales of the quilts and 5 hours a week on production.  This approximate 7:1 ratio of time spent in marketing and sales versus production time has been constant during all times relevant to this proceeding.  (T. at pp. 70-75; 98; Ex. 16).

3.  In the Fall of 1993, Lee started taking coursework at the University of Wisconsin - Stout in Menomonie, Wisconsin.  In May of 1996, Lee graduated from the University of Wisconsin - Stout with a degree in marketing education.

4.  From 1994 through 1996 while Lee was attending school, Lee marketed and sold quilts only during the summer months.  For each of these years Lee worked full-time for approximately three months.  Approximately 75% of Lee’s time was spent on marketing and sales of quilt tops .  (T. at p. 89).

5.  Since graduating, Lee has taught bilingual education at Folwell Middle School and Banneker Elementary in Minneapolis, Minnesota.  (Lee at pp. 104-06).

6.  On September 3, 1996, Lee applied to the Minnesota Department of Children, Families and Learning (“Department”) for a secondary vocational license to teach marketing and business.  (Exs. 1-3).  In a document entitled “Affidavit for Use With Self or Family Employment” Lee’s tax preparer affirmed that during a 42 month period between 1992 and 1996 Lee obtained 4,158 hours of occupational experience working in her quilt making business.  The tax preparer did not specify what percentage of these hours Lee spent marketing and selling the quilts.  (Ex. 4). 

7.  Minn. R. 8750.0900 governs the requirements for secondary vocational marketing education licenses.  In order to teach a vocational marketing program in a secondary school, an applicant must meet specific educational criteria, technical coursework and occupational experience requirements.  To meet the occupational experience requirements, the applicant must have 4,000 hours of occupational experience with at least 2,000 hours in the emphasis area of marketing and sales and the remaining 2,000 hours in the emphasis area or a related field.  Moreover, pursuant to Minn. R. 8750.4000, subp. 1, at least 500 hours of work experience must be in the emphasis area within the 5-year period “immediately before the license is to be issued”.

8.  Occupational experience obtained through self-employment meets the occupational experience requirements if the self-employment hours are paid occupational experience as verified by Department of Revenue tax reports with appropriate “backup records”, and the hours have been earned within the corresponding business or industry setting for the specific category of practice sought. Evidence documenting that the self-employed business exists and complies with laws or rules that regulate the business or industry is required to verify the hours claimed.  Minn. R. 8750.4100, subp. 1. 

9.  By letter dated November 19, 1996, Jodie Witte, a Licensing Specialist with the Department of Children, Families and Learning (“Department”)[1], informed Lee that the credentials she submitted did not meet the current vocational licensure criteria.  Witte directed Lee to submit additional relevant paid work experience documentation for the license sought.  Specifically, Witte informed Lee that she would have to provide more documentation of hours spent on specific duties if she wanted to have her hours in her quilt making business considered toward the licensure requirements.  (Ex. 6).

10.  On or about December 23, 1996, the Department received additional documentation from Lee in support of her application including a letter from another tax preparer located in Coatesville, Pennsylvania attesting to Lee’s self-employment as a quilt maker and copies of Lee’s 1990 tax returns.  (Exs. 7-11).

11.  By letter dated April 3, 1997, Jodie Witte informed Lee that the Board had decided not to grant her a secondary vocational marketing license.  Witte explained that based on the information provided by Lee, the Board was unable to determine whether Lee met the occupational experience requirement.  Witte emphasized that any hours spent by Lee producing quilt products would not be counted toward Lee’s occupational experience.  The letter further notified Lee of her right to appeal the Board’s decision.  (Ex. 12).

12.  In explaining the Board’s decision not to grant Lee a secondary vocational license, Witte made no mention of any concern on the part of the Board that Lee’s employment hours were obtained in a “nontraditional” setting.  (Ex. 12).

13.  On April 28, 1997, Lee appealed the Board’s April 3, 1997 determination and requested a hearing on the denial of her license application.  (Ex. 13).

14.  By letter dated June 3, 1997, Assistant Attorney General Rachel Kaplan apprised Lee of the process for appealing the denial of her license application and informed Lee of her right to a hearing before an Administrative Law Judge.  Kaplan stated that Lee met the educational and technical coursework requirements for the secondary vocational marketing license.  However, Kaplan maintained that Lee failed to meet the occupational experience requirement.  Kaplan explained that because Lee did not document the amount of time she spent making the quilts versus the amount of time she spent marketing and selling the quilts, the Board was unable to assess accurately whether Lee met the required number of hours for licensure.  Additionally, Kaplan noted that Lee failed to provide adequate verification of work she performed for years other than 1990.  Kaplan made no mention of any concern on the part of the Board that Lee’s employment hours were obtained in a “nontraditional” setting.  (Ex. 15).

15.  On August 11, 1997, the Board served Lee with a Notice of and Order for Hearing.  The Board alleged specifically that Lee “has not demonstrated that she has the requisite 4000 hours of occupational experience required (i.e. 2000 hours in the emphasis area and 2000 hours in a related field).”  The Notice contained no allegation that Lee’s self-employment hours were obtained in a “nontraditional” setting within the meaning of Minn. R. 8750.4100, subp. 2.

16.  From February 1990 through November 1990, Lee managed and operated her own one room quilt shop called Quilt Creation.  The shop was located in Intercourse, Pennsylvania.  Lee sold mostly her own quilts and a few of another woman’s on consignment.  The shop was open six days a week from approximately 9:00 a.m. to 5:00 p.m.  According to her tax records, Lee made $12,556 in sales of quilts in 1990.  Lee worked by herself without any employees.  Lee eventually closed the shop because it was not profitable.  (T. at pp. 79-84; Ex. 9).

17.  From 1990 to the Fall of 1993, Lee worked approximately 40 hours a week in her quilt making business.  Lee estimates that she spent approximately 35 hours a week on the marketing and sales of the quilts and 5 hours a week on production.  According to these calculations, Lee obtained approximately 6,000 hours of occupational experience in the emphasis area between 1990 and 1993.  (T. at pp. 70-75; 98; Ex. 16).

18.  Emma Witmer, owner of Witmer Quilt Shop in New Holland, Pennsylvania, wrote in a letter submitted to the Board that in 1990 she paid Lee $5,556.30 for quilt products.  According to Witmer, this figure represents approximately 1,111 hours of work.  In 1991, Witmer paid Lee $8,733.22 for quilt products representing 1,747 hours of work.  (Ex. 16). 

19.  Mable Burkholder, owner of the Quilting Friends shop in Fleetwood Pennsylvania, wrote in a letter to the Board that in 1993 she paid Lee $5,345 for quilt products.  Burkholder estimates this figure to represent 1,069 hours of work by Lee at $5.00 per hour.  In 1994, Burkholder paid Lee $2,595 representing 519 hours of work.  In 1996, Burkholder paid Lee $1,315 representing 263 hours of work.  (Ex. 16).

20.  Based on tax records, Lee made $16,571 in sales of quilt tops in 1991.  With each quilt top selling for approximately $200, Lee sold over 80 quilt tops.  In 1992, Lee made $12,869 in sales of quilt tops.  In 1993, Lee made $7,223 in sales of quilt tops.  In 1994, Lee’s sales of quilt tops totaled $4,530.  In 1995, Lee made $2,850 in sales of quilt tops and in 1996 Lee made approximately $3,000 in sales of quilt tops.  (T. at pp. 72 and 85-90; Ex. 4).

21.  By letter dated October 17, 1997, the Board notified the Administrative Law Judge and Lee that it was taking the position that Lee’s quilting business constitutes nontraditional occupational experience under Minn. R. 8750.4100, subp. 2.  Pursuant to this rule, nontraditional self-employment hours do not count toward the required hours in the emphasis area; and do not count toward more than two-thirds of the total required hours of occupational experience. 

22.  Based on a review of the documents and the testimony submitted by Lee, the Board staff stipulates that Lee completed 2,680 hours of occupational experience.  This amount is two-thirds of the 4,000 hours of occupational experience required by Minn. R. 8750.4100, subp. 2.  (10/17/97 Letter of Counsel).

23.  The Board staff does not refute Lee’s claim that she has obtained at least 4,158 self-employment hours in her quilting business.  However, the staff views Lee’s occupational experience to be “nontraditional” and subject to the limitations of Minn. R. 8750.4100, subp. 2.  (December 3, 1997 Letter of Counsel).

 

CONCLUSIONS

1.  The Administrative Law Judge and the Minnesota Board of Teaching have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 (1996) and 125.09, subd. 1 (1996).

2.  The Board has complied with all relevant substantive and procedural requirements of law and rule.

3.   Choua Lee received proper and timely notice of the hearing in this matter.

4.  Any of the foregoing Findings of Fact more properly termed Conclusions are hereby adopted as such.

5.  Minn. Rule Chap. 8750 was repealed effective August 1, 1996 pursuant to Minn. Laws 1993, chap. 224, art. 12, §§ 39 and 41.

6.  Pursuant to Minn. Stat. § 125.05, subd. 9 (1996), the Board of Teaching may issue teacher licenses under the licensure rules in place on July 31, 1996. 

7.  Minn. R. 8750.0900 governs the requirements for secondary vocational marketing education licenses.  In order to teach a vocational marketing program in a secondary school, an applicant must meet specific educational criteria, technical coursework and occupational experience requirements.  To meet the occupational experience requirements, the applicant must have 4,000 hours of occupational experience with at least 2,000 hours in the emphasis area of marketing and sales and the remaining 2,000 hours in the emphasis area or in a related field.  Moreover, pursuant to Minn. Rules, pt. 8750.4000, subp. 1, at least 500 hours of work experience must be in the emphasis area within the 5-year period “immediately before the license is to be issued”.

8.  Minn. R. 8750.4100, subp. 2 provides in part:

Exception for nontraditional experience.  When self-employment hours have been obtained in designated emphasis or related areas, but within a different occupational setting, or as part of a different occupational role, than that commonly associated with the emphasis area for which the license is valid, the self-employment hours do not count:

A.  toward the required hours in the emphasis area; and

B.  toward more than two-thirds of the total required hours.

9.  Choua Lee, as the party proposing that her license application be approved, bears the burden of proving the facts at issue by a preponderance of the evidence.  Minn. Rules, pt. 1400.7300, subp. 5.  Lee has met that burden by establishing that she has obtained more than 4000 hours of occupational experience in the required emphasis area of marketing and sales.  In addition, Lee established that at least 500 of the 4,000 hours were obtained within the 5-year period immediately before the license is to be issued.

10.  It is appropriate to grant Choua Lee a secondary vocational license to teach marketing.

 

Based on the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS RECOMMENDED THAT the denial of Choua Lee’s secondary vocational marketing license application be reversed and Ms. Lee’s application be granted.

 

 

Dated this ___ day of December, 1997.         

 

RICHARD C. LUIS

Administrative Law Judge

 

Reported: Taped and Transcribed.

 

NOTICE

Pursuant to 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.

 

MEMORANDUM

Pursuant to Minn. R. 8750.0900 an applicant must meet specific educational criteria, technical coursework and occupational experience requirements in order to obtain a secondary vocational marketing license.  To meet the occupational experience requirements, the applicant must have 4,000 hours of occupational experience with at least 2,000 hours in the emphasis area of marketing and sales and the remaining 2,000 hours either in the emphasis area or in a “related area”.  A related area is defined as occupations within the sales, marketing, advertising, retail or service industries which do not involve marketing and sales activities.  Minn. R. 8750.0900, subp. 1(B)(4).  An example of occupational experience within a related area would be a clerical or payroll position within a corporation.  (T. at pp. 22, 24).  Moreover, pursuant to Minn. R. 8750.4000, subp. 1, at least 500 of the required 2,000 emphasis area hours must have been obtained within the five-year period immediately preceding the issuance of the license.  Minn. R. 8750.4000, subp. 1.

The Board maintained initially that it denied Lee’s application for a secondary vocational marketing license because Lee failed to put forth evidence establishing what percentage of her self-employment hours was directly attributable to marketing and sales of quilts and what percentage was devoted to the production or sewing of quilts. When specifically asked, Ms. Judy McGilvrey, Licensing Specialist for the Department assigned to assist the Board of Teaching, testified that the reason for the Board’s denial of Lee’s application was the lack of evidence establishing that Lee had obtained the requisite 4,000 hours of occupational experience in marketing and sales.  (T. at p. 30).  Moreover, McGilvrey affirmatively stated that had Lee demonstrated that she had the 4,000 hours of occupational experience in marketing and sales, Lee would have been eligible for a secondary license.  (Id.)  However, in response to a question from Lee’s counsel, McGilvrey did indicate that Lee’s nontraditional employment environment was an issue.  (T. at p. 39).

At the hearing, Lee testified that she worked at least 4,158 hours in her quilting business since 1990.  Her testimony was supported by tax records, affidavits of her tax preparers, and personal letters from retail store owners and customers.  The Board staff concedes that it has no evidence to refute the fact that Lee worked 4,158 hours in her quilting business.  (12/2/97 Letter of Counsel).  However, the staff’s current position is that Lee’s self-employment hours represent “nontraditional experience”.  Consequently, the staff contends that Lee is limited in the amount of self-employment hours she can claim as occupational experience under Minn. R. 8750.4100, subp. 2(B).

Minn. R. 8750.4100 governs occupational experience obtained through self-employment.  Subpart 2 contains an exception for “nontraditional experience”.  The rule does not define the term “nontraditional”.  Rather, the subpart merely indicates that self-employment hours obtained in emphasis or related areas within a “different occupational setting, or as part of a different occupational role, than that commonly associated with the emphasis area for which the license is valid” do not count toward the required hours in the emphasis area and toward more than two-thirds of the total required hours.  (Emphasis added.)  If the exception contained in subpart 2 applies to Lee’s self-employment experience, only 2,000 hours of the 4,158 hours of occupational experience Lee claims she acquired through her quilting business may be counted.  Contrary to the Board staff’s position that Lee would only have to complete 1,320 emphasis area hours in a traditional setting (one-third of the required 4,000 hours), Minn. R. 8750.0900 does not appear to allow any nontraditional self-employment hours to be counted toward the required 2,000 emphasis area hours.  Consequently, if Lee’s self-employment experience is deemed “nontraditional”, it seems Lee will have to obtain 2,000 hours of emphasis area occupational experience in a “traditional” setting.

In support of its position that Lee’s quilting business falls within the nontraditional experience exception of Minn. R. 8750.4100, subp. 2, the staff contends that Lee’s experience “was not obtained in a setting that her students would encounter.”  (12/3/97 Letter of Counsel).  According to the staff, the purpose of the occupational experience requirement is that instructors have experience in a setting which students will face when they go into the marketplace after graduation.  That is, “[t]he Board requires experiences that are similar to those students will encounter when they graduate and begin functioning as an entry level worker in the occupational field.”  (10/17/97 Letter of Counsel.)  The Board staff maintains that requiring Lee to obtain an additional 1,320 hours in a traditional setting, such as a “more established retail environment” would ensure that her teaching is more aligned to the workplace that her students would encounter.  (Id.) 

The Administrative Law Judge concludes that Lee has established that in the course of her quilting business she has obtained more than 4,000 hours in the emphasis area of marketing and sales.  In addition, based on the filing of Mable Burkholder alone, Lee has demonstrated that over 500 such hours were earned in 1994 and 1996, clearly within the five years before granting (presumably in 1998) of licensure.  Lee testified that 3/4 of her time in the quilting business during those years was spent on marketing and sales.  The total hours for which Burkholder compensated the Applicant in 1994 and 1996 was 782, 3/4 of which is 587 hours, enough to meet the “recent” emphasis area experience requirement of Minn. R. 8750.400, subp. 1.

The only issue remaining before the Judge is whether Lee’s occupational experience is subject to the nontraditional exception of Minn. R. 8750.4100, subp. 2.  The rule provides little, if any guidance, as to what is a nontraditional occupational experience.  The rule only indicates that hours obtained in a different occupational setting or role than that commonly associated with marketing and sales occupations will not be fully credited.  The Board staff argues that Lee’s self-employment experience is nontraditional because it is not the type of experience her students will encounter.  The staff contends that a traditional marketing and sales experience is one more aligned to what a student would experience as an entry level worker.

The Judge is not persuaded by the Board staff’s argument or the logic of its position.  The record shows clearly that Lee spent thousands of hours marketing and selling her product.  While it is true that the likelihood of Lee’s students pursuing a quilting career is remote, Lee’s marketing and sales knowledge is easily transferable to many business occupations. The Judge assumes that the staff is not categorizing Lee’s self-employment experience as nontraditional based on her product.  The fact that Lee is marketing and selling quilts as opposed to computer software should not diminish her ability to teach marketing and sales skills to students.  Likewise, any claim that Lee’s operation of her business out of her home makes her nontraditional is problematic in light of the fact that a growing number of businesses are home-based operations.[2]  Finally, the fact that Lee’s business is relatively small with only modest profits cannot be a reason for labeling her nontraditional.  There is no requirement under the rules that self-employment hours be obtained in occupational settings of a certain size or profit margin.

The Board staff contends, without any support in the rules, that the likelihood of employment by students in a certain occupational setting is a criterion for determining whether an occupational experience is nontraditional.  Even assuming that the staff is correct, the Judge believes it is likely that a number of today’s high school graduates will encounter employment opportunities in small home-based business operations.  Such businesses will need to develop sales and marketing strategies, and Lee has direct experience in that area.  Accordingly, the staff’s opinion that Lee’s occupational experience is nontraditional (not raised as a significant issue until the filing of written argument), requiring Lee to meet additional occupational experience requirements pursuant to Minn. R. 8750.4100, subp. 2, has been accorded little weight. 

It appears to the Judge that a major “nontraditional” feature of Lee’s occupational experience is related to her status as a Hmong businesswoman in Minnesota.  The Judge concludes that basing a distinction in treatment on the ethnic or cultural status of the Applicant is impermissible.  While making no such allegation against the staff, whom he trusts attempted to focus on the nature of Lee’s work experience, the ALJ concludes (based on the preceding discussion) that some of the staff’s assumptions about operations in the “marketplace” in which the Applicant obtained her sales and marketing experience are misplaced.

The rules do not disallow all self-employment hours from counting toward the required 2,000 hours of emphasis area occupational experience.  Rather, the exception applies only to nontraditional self-employment hours.  The Judge does not find Lee’s self-employment experience to be nontraditional or different than that commonly associated with marketing and sales occupations.  He is persuaded that Lee has established that she obtained the requisite 4,000 hours of occupational experience including at least 2,000 hours in the emphasis area of which 500 hours were obtained within the five years preceding the date of license issuance (to occur in 1998).  Therefore, the Judge recommends that Lee’s application for a secondary vocational marketing license be granted.

R.C.L.