11-1902-20516-2
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF
LABOR AND INDUSTRY
|
In
the Matter of the Residential Building Contractor License of |
FINDINGS
OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for
hearing before Administrative Law Judge Barbara L. Neilson on July 27, 2009, at
9:30 a.m. at the Office of Administrative Hearings in
STATEMENT OF ISSUES
The issues presented in this case are
as follows:
(1) whether
the Respondent, Lakeland Door and Remodeling Corporation, failed to properly
install siding and house wrap for a customer;
(2) whether
the Respondent failed to satisfy judgments obtained against it by that customer
as well as subcontractors and/or suppliers; and
(3) whether,
by virtue of the above, the Respondent performed negligently or in breach of
contract so as to cause harm to the public or engaged in conduct that
demonstrates that it is untrustworthy, financially irresponsible, or otherwise
incompetent or unqualified to act under the license granted by the Commissioner,
and thus is subject to disciplinary action as set forth in the Commissioner’s
March 31, 2009, Licensing Order.
The Administrative Law Judge concludes
that the Respondent did engage in the misconduct alleged by the Department, there
are grounds for the Commissioner to impose discipline, and the March 31, 2009,
Licensing Order issued by the Commissioner should be affirmed.
Based upon all of the proceedings
herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. Respondent
Lakeland Door & Remodeling Corporation was licensed by the Department as a
residential building contractor under License No. 20134082 from May 5, 1998,
until the license was voluntarily terminated on November 5, 2008. Respondent’s owner and qualifying person was
Dale Ogdahl.[1]
2. On
October 10, 2007, one of Respondent’s customers obtained a judgment against
Respondent in the amount of $14,104.17 in connection with an allegation that
Respondent breached its contract by failing to properly install siding and
house wrap on the customer’s home during an installation performed in 1998. The customer thereafter sought and received a
court order directing payment of $6,770.58 from the Contractor’s Recovery Fund.[2]
3. On
November 20, 2007, the Department received a complaint from the customer who
filed the lawsuit.[3] On February 21, 2008, the Department warned the
Respondent that failure to satisfy a valid judgment is considered to be
evidence of financial irresponsibility in violation of Minn. Stat. § 326.91,
subd. 1(6), and asked the Respondent to provide the Department with a written
response to the allegation.[4] In the Respondent’s February 26, 2008, response
to the Department, the Respondent asserted that the amount of the judgment was
excessive but did not dispute that its workmanship was deficient.[5] On March 3, 2008, the Department informed the
Respondent that it could not be licensed as a contractor with an outstanding,
unsatisfied judgment and urged it to either satisfy the judgment or file an appeal. The Department also noted that, in the event
the Contractor’s Recovery Fund satisfied the judgment, there would be
additional sanctions against the Respondent’s licensure.[6] There is no evidence that the Respondent has
filed an appeal or satisfied this judgment.
4. On
August 27, 2007, Roof Depot, Inc., obtained a civil judgment in the amount of
$22,807.69 against the Respondent and Dale Ogdahl in Anoka County District
Court. This judgment was satisfied on
March 6, 2008.[7]
5. On
August 29, 2007, Allied Building Products Corp., a supplier of building
materials, obtained a civil judgment in the amount of $34,075.53 against
Respondent in Anoka County District Court.[8] There is no evidence that the Respondent has filed
an appeal or satisfied this judgment.
6. On
October 25, 2007, Sunnybrook Homes, Inc., a roofing subcontractor, obtained a
civil judgment in the amount of $15,627.06 against Respondent in Anoka County
District Court based on allegations that the Respondent failed to pay
Sunnybrook for work it performed.[9] There is no evidence that the Respondent has filed
an appeal or satisfied this judgment.
7. On
February 20, 2009, Dale D. Ogdahl d/b/a Lakeland Door & Remodeling filed an
individual Chapter 7 bankruptcy petition.[10] The case was dismissed on June 10, 2009, due
to Mr. Ogdahl’s failure to appear and submit to examination at the meeting of
creditors.[11]
8. On
March 31, 2009, the Department served Respondent with a Licensing Order which
revoked the Respondent’s residential building contractor’s license, imposed a
$5,000 monetary penalty, and required Respondent to cease and desist from acting
or holding itself out as a residential building contractor, residential
remodeler, or residential roofer in the state of
9. On
or about April 30, 2009, the Department received Respondent’s request for a
hearing to contest the March 31, 2009, Order.[13]
10. The
Notice and Order for Prehearing Conference initiating this contested case
proceeding was served on the Respondent via first class mail on May 8, 2009, at
the following address:
11. The Notice and Order for Prehearing
Conference contained the following language:
Respondent’s failure to appear at the
hearing or any prehearing conference, or any failure to comply with an order of
the Administrative Law Judge, may result in a finding that the Respondent is in
default, that the Department’s allegations contained in this Notice and Order
may be accepted as true, and its proposed action may be upheld.[15]
12. The Notice and Order for Prehearing
Conference set a prehearing conference for June 24, 2009, at 1:30 p.m.[16]
13. On June 24, 2009, Mr. Ogdahl participated
in the prehearing conference on behalf of Respondent. During the prehearing conference, the Administrative Law Judge ordered that this case
would be consolidated for hearing with another case (In the Matter of the Residential Building Contractor License of
Lakeland Remodeling & Construction, Inc., and Dale D. Ogdahl, Individually,
OAH Docket No. 11-1902-20515-2). The
hearing in the consolidated cases was set to commence on July 27, 2009, at 9:30
a.m., in the courtrooms of the Office of Administrative Hearings,
14. On or about July 22, 2009, Mr. Ogdahl
contacted the Administrative Law Judge and indicated that he wished to postpone
the hearing until the following month.
The Administrative Law Judge told Mr. Ogdahl to contact counsel for the Department
to find out if the Department had any objection to a continuance and, if the
Department objected, to contact the Administrative Law Judge so that a
conference call could be arranged to discuss the request. Mr. Ogdahl never contacted the Administrative
Law Judge to request a conference call.
15. On Friday, July 24, 2009, the
Administrative Law Judge left a voice mail message for Mr. Ogdahl in which she
informed him that the hearing remained set for Monday, July 27, 2009. In the message, the Judge directed Mr. Ogdahl
to call her that day (July 24, 2009) if he still wanted a continuance so the
request could be discussed in a conference call with the parties. The Administrative Law Judge never received a
return call from Mr. Ogdahl.
16. No one appeared at the hearing on July 27,
2009, on behalf of the Respondent. The
Respondent was not granted a continuance prior to the hearing. The Respondent did not contact the
Administrative Law Judge between the date of the hearing and the date of this
Report to offer any explanation for its failure to appear.
17. Because the Respondent failed to appear at
the hearing in this matter, it is in default.
Pursuant to Minn. Rules part 1400.6000, the allegations contained in the
Notice and Order for Prehearing Conference are hereby taken as true and incorporated
into these Findings of Fact.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1. The
Administrative Law Judge and the Commissioner of the Department of Labor and
Industry have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50,
326B.082, 326.083, and 326B.84.
2. The Notice and
Order for Prehearing Conference issued by the Department was proper and the
Department has fulfilled all relevant substantive and procedural requirements
of law and rule.
3. The Respondent,
having made no appearance at the hearing, and not receiving a continuance or
other relief, is in default. Pursuant to
Minn. Rules part 1400.6000, the allegations contained in the Notice and Order
for Prehearing Conference are hereby taken as true.
4. Minn. Stat. § 326B.84 authorizes the
Commissioner of Labor and Industry to deny, suspend, limit, place conditions
on, or revoke a license, or censure the person holding the license, if the
licensee, qualifying person, or agent owner:
(4) has failed to reasonably supervise
employees, agents, subcontractors, or salespersons, or has performed
negligently or in breach of contract, so as to cause injury or harm to the
public;
* * *
(11)
has had a judgment entered against them for failure to make
payments to employees, subcontractors, or suppliers, that the licensee has
failed to satisfy and all appeals of the judgment have been exhausted or the
period for appeal has expired; [or]
* * *
(15) has engaged in an act or practice whether or
not the act or practice directly involves the business for which the person is
licensed, that demonstrates that the applicant or licensee is untrustworthy,
financially irresponsible, or otherwise incompetent or unqualified to act under
the license granted by the commissioner. . . .
5. Minn. Stat. § 326B.082, subd. 12,
authorizes the Commissioner to issue a licensing order revoking a license,
imposing monetary penalties of up to $10,000 for each violation, and requiring
that the person cease and desist from committing the violation.
6. Based upon the facts alleged in the
Notice and Order for Prehearing Conference and reflected in Exhibits 1-20 which
were received during the hearing, the Respondent failed to properly install
siding and house wrap in connection with a 1998 project and failed to satisfy the
judgment obtained against it by that homeowner.
The Respondent also failed to satisfy two other judgments that were obtained
against it by subcontractors and/or suppliers during 2007. Accordingly, the Respondent harmed the public
by performing negligently or in breach of contract and engaged in conduct that
demonstrated that it is untrustworthy, financially irresponsible, or otherwise
incompetent or unqualified to act under a residential building contractor
license, in violation of Minn. Stat. § 326B.84 (4), (11), and (15).
7. The Respondent
is subject to discipline under Minn. Stat. §§ 326B.082, 326B.083, and
326B.84. The imposition of sanctions is in the public interest.
Based upon the foregoing
Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED
that the March 31, 2009, Licensing Order issued by the Commissioner of Labor
and Industry against the Respondent, Lakeland Door and Remodeling Corporation, be
AFFIRMED.
Dated: September 4, 2009
|
s/Barbara
L. Neilson |
|
BARBARA
L. NEILSON |
|
Administrative
Law Judge |
Reported: Digitally recorded (no transcript
prepared).
This Report is a recommendation, not
a final decision. The Commissioner 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
the Office of the Commissioner 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. 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.
[1] March 31, 2009, Licensing Order, p. 2, ¶¶ 1, 8 (attached to and incorporated in Notice and Order for Prehearing Conference).
[2] Exhibit 10; March 31, 2009, Licensing Order, p. 2, ¶ 3.
[3] Exhibit 5.
[4] Exhibit 6; March 31, 2009, Licensing Order, p. 2, ¶ 4.
[5] Exhibit 7; March 31, 2009, Licensing Order, p. 2, ¶ 5.
[6] Exhibit 8.
[7] Exhibit 13.
[8] Exhibit 1; March 31, 2009, Licensing Order, p. 2, ¶ 6.
[9] Exhibits 2-4; March 31, 2009, Licensing Order, p. 2, ¶ 7.
[10] Exhibit 16; March 31, 2009, Licensing Order, p. 3, ¶6.
[11] Exhibit 17.
[12] Notice and Order for Prehearing Conference, p. 2, ¶1, and attached March 31, 2009, Licensing Order.
[13] Notice and Order for Prehearing Conference, p. 2, ¶ 4; Exhibit 19.
[14] Affidavit of Service by First Class Mail of Ann Kirlin attached to Notice and Order for Prehearing Conference.
[15] Notice and Order for Prehearing Conference, p. 3, ¶1.
[16] Notice and Order for Prehearing Conference, p. 1.