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OAH 61-1902-20328-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of the Determination of the Class A Journeyman Electrician License of Daniel R. Ehlers, License No. AJ13129 |
FINDINGS OF FACT,CONCLUSIONS ANDRECOMMENDATION |
This matter came
on for hearing before Administrative Law Judge M.
Wendy Willson Legge, Esq. and Thaddeus V. Jude, Esq.,
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Did Respondent comply with a December 5, 2008, Consent Order he voluntarily entered into on December 1, 2008; and, if not
2. Did Respondent violate Minn. Stat. § 326B.081, subd. 3; and, if so
3. Did the Department properly issue the Licensing Order under Minn. Stat. § 326B.082, subd. 11; and, if so
4. Should Respondent’s Class A Journeyman Electrician license be suspended until Respondent pays the $1,000.00 balance due on the $2,500.00 non-stayed penalty assessed and agreed upon in the Consent Order?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Respondent holds a Class A Journeyman electrician’s license number AJ13129 issued by the Department.[1] He also has college degrees in biology and chemistry.[2]
2. On October 2, 2008, Respondent and the Department reached an agreement regarding a Consent Order[3] whereby, among other items, Respondent agreed to pay $2,500.00 of a $7,500.00 civil penalty in five monthly installments of $500.00 beginning October 6, 2008, and continuing on the first of each month thereafter until February 1, 2009, when the final payment would be made.[4]
3. Respondent had legal counsel at some point prior to agreeing to and signing the Consent Order.[5]
4. Respondent made the first three $500.00 payments. Respondent did not pay the January 1, 2009 payment.[6]
5. On January 12, 2009, after telephone conversations with Respondent and her supervisor, Investigator Harvey sent Respondent an e-mail stating in relevant part:
Please provide a response to this e-mail, with the specifics of a payment plan. Thank-you for your immediate attention to this matter. . .
On January 14, 2009, Respondent replied by e-mail to Ms. Harvey. The entire body of the e-mail states:
I agree to pay the balance of $1,000.00 as discussed by March 31st, 2009, Dan Ehlers.[7]
6. Respondent did not pay the $1,000.00 balance by March 31, 2009.[8]
7. On April 20, 2009, Investigator Harvey sent Respondent an e-mail. The entire body of the e-mail states:
Mr. Ehlers:
According to our records, the Department of Labor & Industry has not received the $1,000.00 payment to satisfy the Consent Order you entered into on December 1, 2008 and the e-mail you submitted on 1-14-09 (see below) stating that you agreed to pay the $1,000.00 balance.
If you submitted a check or money order, please provide me with the check number or the money order number and the date of the payment. If you did not submit payment, please advise what your plans are.[9]
8. On April 20, 2009, Respondent replied by e-mail to Ms. Harvey. The entire body of the e-mail states:
Toni I am still not back to work. I am #41 on the out of work book. Usually this would mean back to work within the month. The work picture is still slow. I am looking at other options and and [sic] paying the fine is a priority for me. I am hoping to resolve this in the next three months.[10]
9. On April 21, 2009, Ms. Harvey replied by e-mail to Respondent as follows:
Mr. Ehlers:
Taking into consideration the position you are in due to the economy, DOLI is willing to allow you until June 30, 2009, to make the final payment of $1,000.00.[11]
10. Respondent did not pay by June 30, 2008.[12]
11. On July 8, 2009, the Ms. Harvey sent an e-mail to Respondent advising him that the administrative penalty amount of $1,000.00 remained unpaid and inquiring what Respondent’s intentions were.[13]
12. Respondent has made no payments of any amount on the remaining $1,000.00 of the $2,500.00 non-stayed civil penalty.[14]
13. Of thousands of contractors that have been required to pay civil penalties, Respondent is the first and only one not to have paid. Due to the uniqueness of the situation, Department staff struggled to decide what the least harsh remedy would be to encourage Respondent to pay. Department staff recognized that payment by Respondent is a hardship, but that it was also a hardship for all other licensees. Other licensees, in difficult economic times, have taken jobs outside the licensed field and/or secured loans from all sources, including friends and family.[15]
14. On August 27, 2009, the Department sent Respondent a Certified letter stating in relevant part:
[D]ue to the economy, we gave you two extensions, the first one on March 31, 2009; the second one on June 30, 2009. Despite these extensions you still have not made the final $1,000.00 payment.
The purpose of this letter is to notify you that our patience has reached an end and that we must insist that you make the final $1,000.00 payment to us no later than Tuesday, September 8, 2009. If payment is not received by September 8, 2009, we will issue to you a Licensing Order that will suspend your journeyman’s license until you make the $1,000.00 payment.[16]
15. On September 16, 2009, the Department issued to Respondent a Licensing Order suspending Respondent’s Class A Journeyman Electrician License, No. AJ13129, until respondent pays the remaining $1,000.00 of the $2,500.00 non-stayed portion of the monetary civil penalty agreed to in the Consent Order.[17]
16. Respondent appealed the Licensing Order by a letter dated September 14[sic], 2009.[18]
17. On November 2, 2009, the Department issued the Notice and Order for Hearing in this matter.[19]
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Commerce are authorized to consider the charges against Respondent under Minn. Stat. §§ 14.50 and 45.027, subd. 7 and 325B.082, subd. 8.
2. The Respondent received due, proper and timely notice of the charges against him, and of the time and place of the hearing. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.
3. The Department has complied with all relevant procedural legal requirements.
4. The burden of proof in this proceeding is on the Department to show by a preponderance of the evidence that Respondent violated the Consent Order.[20]
5. The burden of proof in this proceeding regarding the suspension of Respondent’s license is on the Department to show by a preponderance of the evidence that Respondent’s license should be suspended.[21]
6. The Commissioner of Commerce may suspend or revoke any license granted by the Commissioner.[22]
7.
(a) The commissioner may issue an administrative order to any person who the commissioner determines has committed a violation of the applicable law. The commissioner shall issue the administrative order by serving the administrative order on the person. The administrative order may require the person to correct the violation, may require the person to cease and desist from committing the violation, and may assess monetary penalties. The commissioner shall follow the procedures in section 326B.083 when issuing administrative orders. Except as provided in paragraph (b), the commissioner may issue to each person a monetary penalty of up to $10,000 for each violation of applicable law committed by the person. The commissioner may order that part or all of the monetary penalty will be forgiven if the person to whom the order is issued demonstrates to the commissioner by the 31st day after the order is issued that the person has corrected the violation or has developed a correction plan acceptable to the commissioner.
(b) The
commissioner may issue an administrative order for failure to correct a
violation by the deadline stated in a final administrative order issued under
paragraph (a). Each day after the deadline during which the violation remains
uncorrected is a separate violation for purposes of calculating the maximum
monetary penalty amount.
(c) Upon the application of the commissioner, a district court shall find the failure of any person to correct a violation as required by a final administrative order issued by the commissioner under this subdivision as a contempt of court.
8. The Department has proved by a preponderance of the evidence that the Consent Order was properly issued.
9.
(b) The commissioner may deny, suspend, limit, place conditions on, or revoke a person's permit, license, registration, or certificate, or censure the person holding the permit, license, registration, or certificate, if the commissioner finds that the person: . . . (5) violated a final administrative order issued under subdivision 7 . . .
10. The Consent Order is a final administrative order issued under subdivision 7 of Minn. Stat. § 326B.082. The Department has proved by a preponderance of the evidence that Respondent violated the Consent Order by failing to pay the remaining $1,000.00 of the $2,500.00 non-stayed penalty assessed in the Consent Order
11. The Department has proved by a preponderance of the evidence that Respondent’s license should be suspended. The Licensing Order is in the public interest, was properly issued, and is the most lenient remedy available to the Commissioner under the law to encourage Respondent to comply with the Consent Order.
12. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
13. These Conclusions are reached for the reasons discussed in the Memorandum below. The Memorandum is hereby incorporated into these Conclusions.
RECOMMENDATION
IT IS HEREBY RECOMMENDED THAT: the Commissioner uphold the Licensing Order and suspend the license of Respondent as provided in that Order.
Dated: December 18, 2009
s/M.
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M.
KEVIN SNELL Administrative
Law Judge |
Reported: Digitally Recorded
This
report is a recommendation, not a final decision. The Commissioner of the Department of Labor and
Industry (the Commissioner) will make the final decision after a review of the
record. The Commissioner may adopt,
reject or modify these 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
Parties should contact Steve Sviggum, Commissioner, Minnesota Department of Labor & Industry, 443 Lafayette Road, St.
Paul, MN 55155 (651) 284-5126 to learn the procedure for filing
exceptions or presenting argument.
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
the Administrative Law Judge of the date on which the record closes.
MEMORANDUM
The only factual issue in this case is whether Respondent complied with a Consent Order voluntarily entered into by Respondent on December 1, 2008. Resolution of this is relatively straightforward. There is no dispute regarding the relevant facts. There is no dispute that Respondent did not and has not paid the remaining $1,000.00 due under the Consent Order.
The only issues to be resolved are the legal issues of whether or not this failure is a violation of law entitling the commissioner to suspend the license of Respondent until the $1,000.00 is paid. The Administrative Law Judge can only determine that Respondent violated Commissioner’s Consent Order, that this violation is a violation of the applicable licensing statute and that suspension of Respondent’s license is the most lenient and only remaining remedy, short of revocation, to encourage compliance with the Consent Order.
Although Respondent believes it would be fair and reasonable, there is no reliable evidence to suggest that the Enforcement Unit agreed to allow Respondent an indefinite extension until Respondent was re-employed as an electrician before he had to complete payment of the remaining $1,000.00 he agreed to pay. There is no language in any of the written correspondence and no other reliable evidence to suggest that the Licensing Unit agreed to allow him to pay $25.00 or $50.00 a month until the balance was paid. The Administrative Law Judge observes that, although Respondent believes that $25.00 or $50.00 payments would be reasonable, Respondent did not take the initiative to make any such payments between December 1, 2008 and November 20, 2009. The fact that Respondent claims he is unable to pay at this time is irrelevant to the issues within the jurisdiction of the Administrative Law Judge.
Respondent claims that it is unfair he cannot revisit the events and facts that led up to the Consent Order to which he agreed. However, the issues the Administrative Law Judge is allowed to consider are only those set forth in the Notice and Order for Hearing, as specified at the beginning of this report. It appears to the Administrative Law Judge that the Department was particularly accommodating by giving Respondent extensions totaling seven months beyond the originally agreed dates.
The Department is limited by the licensing and enforcement laws, as is the Administrative Law Judge. The Department’s Enforcement Manager’s testimony was legally correct, there is no remaining lesser remedy available to the Commissioner under the law to encourage Respondent to comply with the Consent Order than suspension.
The Administrative Law Judge recommends that the Commissioner uphold the Licensing Order, and suspend the license of Respondent as provided in that Order.
M. K. S.
[1] Testimony of Daniel R. Ehlers & Charlie Durenberger, Manager of Enforcement Services, Construction Codes and Licensing Division of the Department.
[2] Test. of D. Ehlers.
[3] Signed by Respondent on December 1, 2008, Ex. 1.
[4]
[5] Test. of D. Ehlers.
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15] Test. of C. Durenberger.
[16]
[17]
[18] Ex. 6.
[19] Notice and Order for Hearing.
[20]
[21]
[22] Minn. Stat. § 45.027, subd. 7(a)(4).