OAH 2-1902-17411-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
|
In
the Matter of the Residential Building Contractor’s
License of Stylistic Home Improvements |
RECOMMENDATION FOR SUMMARY DISPOSITION |
This
matter comes before Administrative Law Judge Raymond R. Krause on the
Department of Labor and Industry’s Motion for Summary Disposition. The
Department filed its Motion with the Office of Administrative Hearings on
October 3, 2006. Respondent filed its Memorandum in Opposition to the
Department’s Motion on October 10, 2006. Argument on the Motion was heard on October
17, 2006 at the offices of the Office of Administrative Hearings,
Christopher
M. Kaisershot, Assistant Attorney General,
Based upon
all of the filings in this case and for the reasons set out in the accompanying
Memorandum:
IT IS RECOMMENDED that the Commissioner of Labor and
Industry grant the Department’s Motion for Summary Disposition.
|
Dated this |
20th |
day of |
October |
2006. |
s/Raymond R. Krause
|
|
|
RAYMOND R. KRAUSE |
|
Chief Administrative Law Judge |
Reported: Taped
NOTICE
This Report is a recommendation, not a final
decision. The Commissioner will make the final decision after a review of
the record. The Commissioner may adopt, reject or modify the
Recommendation for Summary Disposition. 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 Deputy Commissioner.
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. 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 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.
Factual Background
On May 22, 2006, Respondent submitted an application
for licensure as a residential building contractor with the Department. In the application, it was noted that John
Flaga, Jr. (Flaga), was its owner, manager, and qualifying person.[1]
On June 15, 2006, the Department
notified Respondent that it recommended the denial of its license application.[2]
On July 7, 2006, Respondent requested
a hearing to contest the Department’s recommended decision.[3]
A prehearing conference was held on
this matter on September 20, 2006. At the prehearing conference, Respondent
stipulated that “the Department had sufficient discretion pursuant to Minn.
Stat. § 45.027, subd. 7 (2004) to deny Respondent’s application.”[4]
Respondent does not contest that Flaga
has a criminal history. Specifically, Respondent does not contest that on
August 19, 1996, Flaga pleaded guilty to four counts of felony bail jumping and
was sentenced to two years in prison and a fine by the
Legal Standard for Summary Disposition
Summary
disposition is the administrative equivalent to summary judgment.[6]
Summary judgment is appropriate when there is no genuine issue of material fact
and a party is entitled to judgment as a matter of law.[7]
A genuine issue is one that is not a sham or frivolous, and a material fact is
one which will affect the outcome of the case. The Office of Administrative Hearings has
generally followed the summary judgment standards developed in judicial courts
in considering motions for summary disposition regarding contested case
matters.[8]
The moving
party must demonstrate that no genuine issues of material fact exist.[9]
If the moving party is successful, the nonmoving party then has the burden of
proof to show specific facts are in dispute that can affect the outcome of the
case.[10]
It is not sufficient for the nonmoving party to rest on mere averments or
denials; it must present specific facts demonstrating a genuine issue for
trial.[11]
When considering a motion for summary judgment, the Judge must view the facts
in the light most favorable to the non-moving party.[12]
All doubts and factual inferences must be resolved against the moving party.[13]
If reasonable minds could differ as to the import of the evidence, judgment as
a matter of law should not be granted.[14]
Consideration of Evidence of Rehabilitation Under
Chapter 364
Respondent does not deny that the Department would be
within its discretion to deny the license application in this case, based upon
the conduct underlying the conviction for felony bail jumping. Respondent,
however, argues that Chapter 364 requires the Department to consider evidence
of rehabilitation before denying the application on the basis of a prior
conviction.
The Department points to Minn. Stat. §
45.027, subd. 10, which states in relevant part, “Chapter 364 does not apply to
an applicant for a license… where the underlying conduct on which the
conviction is based would be grounds for denial…of the license.” The
Department’s position is that the language of Minn. Stat. § 45.027, subd. 10 is
clear and because Respondent has stipulated to the convictions and to the
Department’s discretion to deny the application based on those convictions,
there are no facts in dispute and the matter must be summarily disposed of as a
matter of law.
Minn. Stat. § 45.027, subd. 10 is not
as broad a provision as the Department argues in its motion. There must be, as
Respondent argues, some analysis made to show that the conduct is such that the
Department would have the discretion to deny the application on that basis. Not
all conduct resulting in a conviction is of a nature that would give reasonable
grounds for the Department to deny an application. It is, in other words,
insufficient to merely point out that an applicant has been convicted of a
crime. There must be a showing that the conduct underlying the conviction relates
to the statutory bases upon which the Department has authority to deny
licenses.
The statutory basis for denial of an
application of this type is found in Minn. Stat. § 45.027, subd. 7(a), (1) –
(4). It states that an application may be denied, inter alia, if “the person
has engaged in an act or practice, whether or not the act or practice directly
involves the business for which the person is licensed… which demonstrates that
the applicant… is untrustworthy.”
The conduct underlying a conviction
for felony bail jumping involves the posting of a bond and, by failing to
appear in court as promised, forfeiting the bond. This conduct implies
untrustworthiness. Although the Department is not required to show that the
conduct is directly related to the residential building contractor business, it
is, in fact, related as contractors are, from time to time, required to post
bonds and are expected to fulfill the conditions of those bonds.
The motion asks this ALJ to dispose of this matter on
the basis that the stipulated conduct is sufficient to deny the license and,
therefore, under Minn. Stat. § 45.027 sub. 10, the evidence of rehabilitation
is inapplicable to this case.
There are no facts in dispute, the Respondent
stipulates to the conduct alleged and that the Department has the discretion to
deny the license on those grounds. That conduct, when subjected to the analysis
of Minn. Stat. § 45.027 subd. 7(a) is conduct which demonstrates
untrustworthiness and is, therefore, sufficient grounds upon which to deny the
license. Therefore, Chap. 364 does not
apply to this case and the motion is granted.
R.R.K.
[1] Notice of and Order for Hearing, Order to Show Cause
pg. 2.
[2]
[3]
[4] Respondent’s Memorandum, pg. 1.
[5]
[6]
[7]
[8]
[9] Theile v.
Stich, 425 N.W.2d 580, 582 (
[10]
[11]
[12] Ostendorf v.
Kenyon, 347 N.W.2d 834 (
[13] Theile v.
Stich, 425 N.W.2d 580, 583 (
[14] Anderson v.
Liberty Lobby Inc., 477