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OAH 15-1902-17054-2 BC2503569/CMW |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of Eagleview Construction, Inc. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above matter came on for
hearing before Administrative Law (ALJ) Judge Beverly Jones Heydinger on May
11, 2006, at the Office of Administrative Hearings in
Christopher M. Kaisershot,
Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul,
MN 55101-2130 appeared on behalf of the Department of Labor and Industry
(Department). Craig Jesinoski,
Whether disciplinary action
should be taken against Respondent because it and its qualifying person, Craig Jesinoski,
failed to satisfy judgments in favor the Roof Depot, Inc.
The Administrative Law Judge recommends that the Department take appropriate action against Respondent and its qualifying person, Craig Jesinoski.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. On September 17, 1996, the Department issued Respondent Residential Building Contractor’s License No. 20076043. Respondent did not renew its license when it expired on March 31, 2006.[1]
2. James Szplinski was the Respondent’s qualifying person until he was replaced by Craig Jesinoski on October 27, 2004.[2]
3. On May 26, 2005, Respondent entered into a Consent Order with the Department which provided for censure and a $3,000 civil penalty due to Respondent’s failure to obtain building permits and inspections, failure to supervise employees and/or subcontractors, failure to complete work, and failure to respond to the Department.[3]
4. The Roof Depot, Inc. (Roof Depot) filed suit against Eagleview Construction, Inc. and Craig Jesinoski in Hennepin County District Court, Case No. 27-CV-05-001982, on February 8, 2005.[4] A judgment, in the amount of $11,165.24, was entered against Respondent and Mr. Jesinoski on April 15, 2005.[5]
5. The Department learned of the Roof Depot’s judgment from published notice in Finance and Commerce. Chris Williams, a senior investigator for the Department, checked with the Roof Depot to determine if the judgment was still outstanding. The Roof Depot provided the Department with a Writ of Execution which showed that the judgment had not been satisfied.[6]
6. The Department sent a letter to Respondent and Mr. Jesinoski on June 9, 2005, advising them that failure to satisfy an outstanding judgment was a violation of Minn. Stat. §326.91, subd 1(6).[7]
7. On June 13, 2005, the Department received by facsimile transmission a letter from Mr. Jesinoski in which he stated that he had been advised to close the company as of May 31, 2005. The letter did not indicate whether the Roof Depot judgment had been satisfied.[8]
8. Because the unsatisfied judgment indicated that Respondent was incompetent, untrustworthy, or financially irresponsible, the Department sent a proposed Consent Order to the Respondent and Mr. Jesinoski on June 14, 2005.[9] The Department did not receive any response to its June 14, 2005 letter.[10] The judgment in Case No. 27-CV-05-001982 remains unpaid.[11]
9. During its investigation, the Department discovered another outstanding judgment against Mr. Jesinoski.[12] The Roof Depot filed another suit against Craig Jesinoski, individually and doing business as All Season Builders Roofing & Siding, in Hennepin County District Court, Case No. 27-CV-05-001950, on February 8, 2006.[13] Judgment for $12,886.31 was entered against the defendants on February 14, 2005.[14]
10. The Department contacted the Roof Depot and determined that only $1,800 has been paid on the judgment for Case No. 27-CV-05-001950.[15] The balance of the judgment remains unpaid.[16]
11. Prior to this hearing, the Department received an inquiry from a homeowner asking if Respondent was a licensed contractor. The homeowner was told that neither the Respondent nor Mr. Jesinoski was licensed.[17]
12. Mr. Jesinoski was present at the hearing but chose not to testify.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1.
The
Administrative Law Judge and Commissioner of Labor and Industry have
jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 45.027, subd. 7
and 326.91, subd. 1.
2.
The Respondent
was given timely and proper notice of the Prehearing Conference and Hearing in
this matter, and the Department has complied with all procedural requirements
of law and rule.
3.
Respondent
violated Minn. Stat. §§ 45.027, subd. 7(a)(4) and 326.91, subds. 1(6) when it
and its qualifying person, Craig Jesinoski, failed to satisfy judgments in
favor of the Roof Depot, Inc.
4.
Respondent and
Respondent’s qualifying person, Craig Jesinoski, have been shown to be incompetent,
untrustworthy and financially irresponsible by failing to satisfy the Roof
Depot, Inc. judgments in Case No. 27-CV-05-001950 and 27-CV-05-001950.
5.
An order
imposing discipline against the Respondent violations of the statutes and rules
specified in Conclusions 3 and 4 above is in the public interest within the
meaning of Minn. Stat. § 45.027, subd. 7(1).
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS
RECOMMENDED that appropriate disciplinary action be taken against Eagleview
Construction, Inc., and its qualifying person, Craig Jesinoski.
Dated: June 9, 2006
/s/ Beverly Jones Heydinger
|
BEVERLY
JONES HEYDINGER Administrative
Law Judge |
Reported: Taped,
One tape
No
transcript prepared
This report is a
recommendation, not a final decision. The Commissioner of Department of Labor
and Industry will make the final decision after a review of the record. The
Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and
Recommendations. Under Minn. Stat. § 14.61, the final decision of the
Commissioner 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 present
argument to the Commissioner. Parties should contact Nancy J. Leppink, Director
of Legal Services, Minnesota Department of Labor and Industry,
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.
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.
Respondent and its qualifying person, Craig Jesinoski, have two outstanding judgments that have not been satisfied. Both judgments are more than one year old. The evidence presented by the Department was uncontested. Mr. Jesinoski attended the hearing but declined to testify.
Minn.
Stat. § 326.91, subd. 1 makes it clear that disciplinary action may be imposed when
Respondent or its qualifying person is shown to be incompetent, untrustworthy
or financially irresponsible. The facts establishing the allegations that
Respondent and Craig Jesinoski were incompetent, untrustworthy and financially
irresponsible have been proven.
B.J.H.
[1] Statement of Charges, p. 2; Testimony of Chris Williams, senior investigator for the Department.
[2] Testimony of C. Williams. The January 26, 2004, date in the Statement of Charges is incorrect. See Statement of Charges, p.2.
[3] Statement of Charges, p. 2; Testimony of C. Williams.
[4] Exs. 3 and 4.
[5]
[6] Ex. 5.
[7] Ex. 6. Unless otherwise specified, all references to Minnesota Statutes are to the 2004 edition, and all references to Minnesota Rules are to the 2005 edition.
[8] Ex. 7.
[9] Ex. 8.
[10] Testimony of C. Williams.
[11]
[12]
[13] Ex. 1.
[14] Ex. 2.
[15] Testimony of C. Williams.
[16]
[17]