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7-1902-17817-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of Residential Building Contractor's License of Lifetime Siding and Remodeling, Inc., d/b/a DuBois Design & Remodeling, Inc. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter was heard by Administrative Law Judge
(ALJ) Richard C. Luis on June 5 and August 15, 2007 at the Office of
Administrative Hearings in
Michael J. Tostengard, Assistant Attorney General,
445 Minnesota Street, Suite 1300, St. Paul, Minnesota, 55101 appeared on behalf
of the Residential Building Contractor's Division of the Minnesota Department
of Labor and Industry ("Department").
David DuBois, President, Lifetime Siding & Remodeling, Inc. and
DuBois Design & Remodeling, Inc.,
Whether disciplinary action should be taken against the Respondent for providing false and misleading information to the Department in violation of Minn. Stat. §§ 45.027, subd. 7(3), and/or for performing negligently or in breach of contract by failing to complete the Danielson project properly pursuant to a written contract, in violation of Minn. Stat. § 326.91, subd. 1(4).
Based on the proceedings herein, the Administrative Law Judge makes the following:
1.
At the 2006 Minnesota State Fair, Debra
Danielson, a homeowner from
2. On September 23, 2006, Ms. Danielson and Sonyia Granville, a sales representative of the Respondent's, signed a writing, using the Respondent's "Proposal" form, which was intended by the Respondent to provide that Ms. Danielson would pay $2,943.75 to the Respondent if she agreed to replacement of the gutters on her home only, and $3,794.00 if she agreed, in addition, to add a gutter-capping system on top of the new gutter.[1] Many of the issues in this case arise because the document, on its face, does not make that agreement clear.
3. The "Proposal" document summarized in the preceding Finding, which the parties treat, for purposes of this proceeding, as a contract between the Respondent and Ms. Danielson, includes a notation on its first page, which reads (underneath the spot for the date in the upper-right corner) "contingent on customer's final approval".
4. On October 10-12, 2006, before Ms. Danielson had made a decision about which option, if any, to select, the Respondent's installer went to her house and replaced her gutters. A gutter protection system, or gutter capping, known by its trade name, the "Leaf Slugger" system, was also installed over part of her new gutter.
5. Ms. Danielson returned home from a short vacation (she had not been home since October 10, 2006 or before) on October 12, 2006, and discovered that her gutters had been replaced, that a gutter capping system had been installed over the new gutter, that she was being billed $3,794.00 for the work, and that in her opinion, the installer performing the installation for the Respondent had caused damage to her roof, which had not yet been repaired.[2]
6. Ms. Granville understood from her dealings with Ms. Danielson that Ms. Danielson had agreed to the installation of a new gutter system. The Respondent interprets the "Proposal"/Contract to be an agreement by Ms. Danielson to proceed with installation of a new gutter, with the only "contingency" being that Ms. Danielson had to give final approval to the gutter capping. Ms. Granville also believed, based on a conversation with Ms. Danielson, that Ms. Danielson had authorized the Respondent to proceed with the work agreed upon, regardless of whether or not she was home.[3]
7. On or about October 10, 2006, Ms. Granville authorized the Respondent's installer to proceed with installation of the new gutter and gutter cap without checking further with Ms. Danielson. This authorization occurred after the installer informed Ms. Granville that he had not been able to communicate with Ms. Danielson for one day, and that the system would fail if the gutter cap were not placed completely over the new gutter.[4]
8. On November 1, 2006, Ms. Danielson filed a complaint with the Department[5], which complaint noted that the Respondent had proceeded with the above-described work on her house before she had made a decision even to proceed with any of the work. Her complaint specifies that she had told the Respondent's salesperson that if (emphasis original) she decided to proceed with the repair work on her roof by the Respondent (she was considering hiring other firms as well) that she would decide only to replace her gutter, for the lesser price noted in the "Proposal", and would add the "Leaf Slugger" gutter protection system at some other time, if at all.
9. After the filing of Ms. Danielson's complaint, the Department wrote to the Respondent and requested a written response. In Mr. DuBois's response to the Department, dated November 8, 2006[6], Mr. DuBois noted that the Respondent had given Ms. Danielson 109 feet of free gutter cap on the remainder of her house, and that they had caused no damage to her roof. He noted that by this action, the Respondent believed that it had resolved the matter with Ms. Danielson.
10. Department Investigator Chris Williams followed up with Ms. Danielson, who reported that no additional gutter cap had been installed, that she was still working on a financial settlement with the Respondent, and that she did not want the Respondent's personnel back on her property. Ms. Williams wrote the Respondent on November 20, 2006, and informed Mr. DuBois that no additional services had been performed at the home since the initial installation.[7]
11. On November 27, 2006, Mr. DuBois wrote to the Department and admitted that the earlier letter was based, in part, on the following incorrect assumptions: (1) The additional gutter protection was not installed as stated in the November 8 letter; and (2) the installer in charge of the project did not go back and clean up and repair any substandard work.[8]
12. Also on November 27, 2006, Mr. DuBois wrote to Ms. Danielson and apologized for the miscommunication related to her gutter and gutter protection project and any substandard work performed. He noted that at the time of his initial response to the Department, he believed that providing additional gutter protection for the balance of Ms. Danielson's house had been completed and that all of her concerns had been resolved. Mr. DuBois added:
"Our Production Manager and I take full responsibility for not inspecting and holding our installers accountable for following through on the quality of work and communication with customers…"[9]
13. In his letter of November 27, 2006, Mr. DuBois also offered Ms. Danielson an opportunity to correct any substandard work, to review the work with her or a third party, and to install the balance of gutter protection at no cost (a $1,765.00 value). In the alternative he agreed to work with a contractor of Ms. Danielson's choice to remove the gutters and gutter capping and refund all her money.[10]
14. On December 10, 2006, Ms. Danielson wrote back to Mr. DuBois.[11] Ms. Danielson rejected the Respondent's offers contained in Mr. DuBois's letter of November 27, stating, in part, that after considering reports she had received from other sources, she did not want any more leaf guard protection over the gutters on her home. She added that she did not want the Respondent or any of its representatives back on her property. She also offered to pay the Respondent $2,250.00 for the work that had been performed, based in part on what she had to pay a different installer for adjustments to the Respondent's work.[12] Ms. Danielson requested also that the Respondent put in place a policy that it would never again enter a customer's property without prior permission. Shortly thereafter, Ms. Danielson and the Respondent resolved the issues remaining between themselves.[13]
Based on the Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Commissioner of Labor and Industry have jurisdiction herein pursuant to Minn. Stat. §§ 14.50, 45.027 and 326.91.
2. The Notice of Hearing was proper, and the matter is properly before the Administrative Law Judge and the Commissioner of Labor and Industry. The Department has fulfilled all procedural requirements.
3. The Department has proven by a preponderance of the evidence that the Respondent performed negligently and in breach of contract by proceeding with the installation of a gutter and gutter-capping system at the house of Debra Danielson on or about October 10-12, 2006, in violation of Minn. Stat. §§ 326.91, subd. 1(4).
4. It would be inappropriate to discipline the Respondent for providing false and misleading information to the Department in violation of Minn. Stat. § 45.027, subd. 7(3).
5. The imposition of disciplinary action against the Respondent for negligent performance and breach of contract in connection with work on the Debra Danielson house is in the public interest within the meaning of Minn. Stat. § 45.027, subd. 7(1).
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that appropriate disciplinary action be taken against the Residential Building Contractor’s License of Lifetime Siding & Remodeling, Inc., d/b/a DuBois Design & Remodeling, Inc.
Dated this _18th_ day of _October_, 2007
_/s/
Richard C. Luis _
RICHARD
C. LUIS
Administrative
Law Judge
Reported: Recorded digitally.
NOTICE
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 Steve Sviggum, Commissioner, ATTN: Nancy Leppink, Director 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.
MEMORANDUM
The Administrative Law Judge concludes that disciplinary action is appropriate against the Respondent in connection with the Danielson matter because the Respondent performed the installation of a gutter system, with additional gutter cap protection, without the prior permission or authorization of Ms. Danielson. The Respondent's agent testified that Ms. Danielson had agreed to the installation of the gutter (but not the gutter cap protection system), and that Ms. Danielson had authorized the Respondent to proceed with installation of the new gutter, whether or not she was home at the time the Respondent was able to do the job. As noted below, that testimony is not consistent with the terms of the "Proposal" document the parties signed.
The Respondent's sales agent admitted that she authorized the installer to proceed with the installation of the "Leaf Slugger" gutter-capping system without Ms. Danielson's permission, and that in so doing she had made a mistake. Ms. Granville thought the understanding was that if Ms. Danielson did not get back to her after their conversation in September, installation of the "Leaf Slugger" gutter capping system was authorized. Since Ms. Danielson had not gotten back to say she did not want the extra protection, Ms. Granville authorized its installation. The Respondent is responsible, in this instance, for the mistake made by its agent. The Respondent's actions on October 10-12 constitute negligence and a breach of contract in violation of Minn. Stat. § 326.91, subd. 1(4). To proceed with installation of the gutter capping system was a negligent act (the Respondent admits it was never authorized by Ms. Danielson), and it was also a breach of contract (regardless of whether Ms. Granville felt differently) to proceed with installation of either the gutter or the gutter cap without Ms. Danielson's prior assent. To proceed on either part of the project without further permission of Ms. Danielson was contrary to the written agreement of the parties, contained in Exhibit 3, which states plainly on the first page that any work is "contingent on customers final approval". Even if Ms. Danielson gave Ms. Granville oral permission for the Respondent to install the gutter system regardless of whether she was home, there is nothing in writing to contradict the parties’ signed "Proposal" that, on its face, makes going forward with the project conditional on Ms. Danielson's approval.
The Respondent argues that the words "contingent on customers final approval" on the face of the "Proposal" document applied to installation of the gutter capping system. The ALJ notes that the document does not say so on its face. If the parties to the "Proposal"/Agreement/Contract believed that to be the case, the written instrument should have made it clear. Any failure to reduce all the specifics of the contract to writing in this instance is the responsibility of the Respondent, who should bear the consequences of that failure. The writing does not specify that Ms. Danielson authorized either phase of the project or that the Respondent could proceed in her absence. Minn. Rule 2891.0300 requires contracts between building contractors and customers to be reduced to writing, to contain a summary of the work to be performed, and to describe the basis on which the contract price will be calculated. The "Proposal" document in this case does not meet those requirements, which deficiency supports a conclusion that the Respondent was negligent and performed in breach of contract.
The ALJ believes it appropriate that the Respondent not be disciplined for providing false and misleading information to the Department in violation of Minn. Stat. § 45.027, subd. 7(3), because Mr. DuBois, in his letter to the Department on November 8, 2006 (the basis for the allegation) was simply reporting to the Department what he understood from his initial investigation of the complaint, and any reliance by the Department on the report was minimal and harmless. His letter of November 27, 2006 to the Department (Exhibit 5) explains adequately that he was proceeding on some incorrect assumptions when he responded immediately after receiving the complaint. In this instance, where the Department was provided with information that technically was false and misleading, the Administrative Law Judge is persuaded that the complete lack of evidence that the Respondent intended to be incorrect or misleading should relieve the Respondent of any discipline based on a violation of the prohibitions of Minn. Stat. § 45.027, subd. 7(3). This is so particularly when any mistake was clarified quickly in a subsequent writing, and there is no evidence of detrimental reliance by the Department. When its investigator learned that the Respondent's representations were wrong, she informed Mr. DuBois that the customer disagreed with his earlier representations, and Mr. DuBois responded promptly that he had been wrong. At the same time, he apologized in writing to Ms. Danielson, and made an offer to address any outstanding problems.[14] Given these circumstances, the ALJ stops short of recommending discipline against the Respondent on the ground of providing false and misleading information to the Department.
R.C.L.
[1] Exhibit 3.
[2] Exhibit 1.
[3] Testimony of Granville.
[4] Testimony of Granville.
[5] Exhibit 1.
[6] Exhibit 3.
[7] Exhibit 11.
[8] Exhibit 5.
[9] Exhibit 5.
[10] DuBois letter to Danielson, November 27, 2006, Exhibit 5.
[11] Exhibit 8.
[12] Testimony of David DuBois. See also, Exhibit 10.
[13] Testimony of Chris Williams.
[14] See Findings 9-14.