OAH 8-1902-20968-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF LABOR AND
INDUSTRY
|
In the Matter of the Residential Building Contractor’s License of
Daniel W. Booren, doing business as Scandia Builders |
AMENDED FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came
on for a Pre-Hearing Conference before Administrative Law Judge Eric L. Lipman
on March 25, 2010, at the
Michael J. Tostengard, Assistant Attorney
General, appeared on behalf of the Department of Labor and Industry
(Department). Daniel W. Booren, appeared
on his own behalf and without counsel (Respondent).
1.
Did the
Respondent perform negligently or in breach of his contract with Bob and
Holly Vance for repairs to a home in
violation of Minn. Stat. § 326B.84 (4)?
The Administrative Law Judge
concludes that Mr. Booren did fail to perform his contract with Robert
and Holly Vance, in violation of Minn.
Stat. § 326B.84 (4), and is subject to regulatory discipline.
Based upon the evidence in the
hearing record, the Administrative Law Judge makes the following:
1.
Respondent Daniel Booren holds Residential Building
Contractor License No. 8788. He was issued
this license by the Department on April 21, 1993.[1]
2.
On May 11, 2009, Mr. Booren entered into a
contact to affect repairs to the roof, eaves, soffits and chimney of a home
owned by Robert and Holly Vance in
3.
Under the terms of the contract, the Vances were
obliged to pay approximately half of the estimated cost of the repairs – $4,000
– as a down payment towards a total projected cost of $8,050. Under the contract, the balance of the
contract amount was due upon completion of the project.[3]
4.
While the parties did discuss the possibility of
placing new siding on the home, no firm agreement was reached on this point. Moreover, the May 11, 2009 proposal submitted
to the Vances by Mr. Booren does not address the provision of siding.[4]
5.
Under the terms of the May 11, 2009 contract,
Mr. Booren pledged to complete “clean-up [and] removal of debris” after the
completion of the contract work.[5]
6.
By way of a personal check, number 10145, the
Vances made a down payment of $6,000 toward completion of the repairs.[6]
7.
So as to facilitate his work on the eaves and
soffits of the home, and believing that the siding on the home would be removed
in the near future in any event, Mr. Booren removed portions of the siding on
the Vance home.[7]
8.
On Thursday, May 21, 2009, Mr. Booren telephoned
Mr. Vance to inform him the project was completed and requested payment of the
balance of the contract.[8]
9.
Mr. Vance, who is employed as an over-the-road
truck driver, noted that he was not in the area but would be returning on the
upcoming Saturday – May 23, 2009.[9]
10.
Upon his return, Mr. Vance noted that portions
of siding from the home had been removed; that the job site was littered with
glass and construction debris; and that his car had been damaged.[10]
11.
On Monday,
May 25, 2009, Mr. Booren
telephoned Mr. Vance and requested payment for the completed work. Mr. Vance was again away from
12.
During a May 30, 2009 meeting between Mr. Vance and
Mr. Booren, Mr. Vance stated that the work was not complete and that
there had been significant damage to his home and property. Mr. Vance said that he would not remit the
remainder of the contract price until the damage was repaired.[12]
13.
For his part, Mr. Booren regarded the claim for
damages as overstated and not in good faith.
Angry, he left the worksite and did not later return to the job.[13]
14.
Mr. Vance
later hired a different contractor to complete the project and to repair the
damages. Moreover, Mr. Vance made a
claim against Mr. Booren’s insurance carrier and was paid the sum of $1,000 in
settlement of that claim. Mr. Vance used
the unpaid sums under the contract and the insurance proceeds to complete the
project work and needed repairs.[14]
15.
By way
of a Licensing Order issued on October 7, 2009, the Minnesota Department of
Labor and Industry concluded that Respondent performed negligently or in breach of
contract in violation of Minn. Stat. § 326B.84 (4) (2008). As a sanction, it censured Respondent and assesses a monetary penalty
of $1,000.[15]
16.
Mr.
Booren filed a timely appeal of the agency Order and was granted a contested
case hearing.[16]
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
and 326B.083.
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.
Mr. Booren, as a licensed residential building
contractor, is obliged to adhere to the statutes and regulations governing this
trade.
4.
Minn.
Stat. § 326B.84, paragraph 4 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 “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 ….”
5.
Mr. Booren did not fulfill the obligations he
had made under the contract – particularly clean up of the project worksite.
6.
Mr. Booren performed negligently by permanently
removing siding from the Vance home without either an agreement to do so or a
plan for remediation.
7.
Minn. Stat. §§ 45.027 and 326B.84 empowers the
Commissioner to take disciplinary action against the Respondents, for their
violations of agency orders, state statute and state rules.
8.
The
imposition of a disciplinary action against Respondents is in the public
interest.
Based upon the
foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED that the October 7,
2009, Licensing Order issued by the Commissioner of Labor and Industry against
the Respondent Daniel W.
Booren, doing business as Scandia Builders, be AFFIRMED.
Dated: May 3, 2010
/s/
Eric L. Lipman
________________________
ERIC
L. LIPMAN
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.
MEMORANDUM
While
mindful that Mr. Booren thought that, as of May 30, 2009, Mr. Vance was trying
to obtain services which were not included in the contract, this view did not
entitle Mr. Booren to abandon the job site and leave a portion of the contract work
unfulfilled. Mr. Booren was obliged to
fulfill the terms of May 11, 2009 contract.
Likewise, Mr. Booren may not
avoid censure by arguing that, at the time he had left the worksite, the Vances
had received more value in services than they had submitted as a down payment
on complete performance. The relevant
statutes and regulations insist upon the fulfillment of contracts by licensed Residential
Building Contractors.
The Licensing Order dated October 7, 2009
should be affirmed.
E. L. L.
[1] See, Exhibit A.
[2] Ex. 2; Testimony of Daniel Booren; Testimony of Robert Vance.
[3] Ex. 2; Test. of R. Vance.
[4] Ex. 2 and A; Test. of D. Booren; Test. of R. Vance.
[5] Ex. 2; Test. of D. Booren; Test. of R. Vance.
[6] Ex. 2; Test. of D. Booren.
[7] Ex. 3; Test. of D. Booren.
[8] Test. of R. Vance.
[9]
[10]
[11]
[12] Test. of D. Booren; Test. of R. Vance.
[13] Test. of D. Booren.
[14] Test. of R. Vance.
[15] Licensing
Order, BC2901121/GJL at 1 (
[16] Licensing Order, BC2901121/GJL at 3; Letter of Daniel Booren (November 5, 2009).