11-1902-21378-2
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF
LABOR AND INDUSTRY
|
In
the Matter of the Residential Building Contractor License of Eilertson
Exteriors, LLC, and Thomas W. Eilertson, Individually |
FINDINGS
OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for a
prehearing conference before Administrative Law Judge Barbara L. Neilson on
July 27, 2010, at 1:30 p.m. at the Office of Administrative Hearings in
By letter dated July 27, 2010, the Department made a motion that the
Respondents be found to be in default.
The letter informed Respondents that their written reply to the motion
must be filed and served within ten days.
The OAH record remained open until August 10, 2010, for receipt of a
substantive response to the motion from the Respondents. Although Respondents returned the
Department’s motion letter to the Department on August 5, 2010, with some
notations and other materials, the Respondents did not provide any substantive
response to the motion or offer any reason for their failure to appear for the
prehearing conference.
STATEMENT OF ISSUES
The issues presented in this case are
as follows:
(1) whether
Respondents Eilertson Exteriors, LLC, and Thomas W. Eilertson engaged in
fraudulent, deceptive or dishonest practices by presenting a $15,000 sham money
order as payment for an outstanding debt;
(2) whether
Respondents demonstrated financial irresponsibility and untrustworthiness by
failing to pay a material provider $2,961.87 for its contribution to a project;
(3) whether
Respondent Thomas W. Eilertson demonstrated financial irresponsibility and
untrustworthiness by failing to satisfy a civil judgment of $9,032.29 that was
obtained against him by Discover Bank; and
(4) whether
Respondent, and its principal, Thomas Eilertson, failed to comply with the
Department’s requests for information, documents, or other requests from the
Department.
The Administrative Law Judge concludes
that the Respondents did engage in the misconduct alleged by the Department, there
are grounds for the Commissioner to impose discipline, and the May 24, 2010,
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 Eilertson Exteriors, LLC, holds
a residential building contractor license (No. 20551371) that was issued by the
Department on November 29, 2005.
Respondent Thomas W. Eilertson is the principal in that company.[1]
2. On February 24, 2010, Discover Bank
obtained a $9,032.29 civil judgment against Respondent Thomas Eilertson in
Hennepin County District Court. There is
no evidence that Respondent has satisfied or appealed Discover Bank’s judgment.[2]
3. On March 17, 2010, the Department opened
an investigation based on a complaint by a material provider (Complainant) that
had not been paid $2,961.87 for its contribution to Respondents’
4. Respondents provided Complainant with a
$15,000 “money order” that was not a negotiable instrument drawn on a financial
institution. The “money order” provided no
routing numbers or bank information, but merely listed the Social Security
number of Respondent Eilertson’s wife as the “account number” and directed that
the $15,000 should be drawn from that “bonded account.” Respondents claimed that their obligation to
Complainant was extinguished, at least in part, because the Complainant did not
“rebut” within five days the contents of their purported “Verified Notice to
the Public Within the Admiralty, in the Nature of a Commercial Affidavit of
Truth.”[4]
5. Complainant reported that Respondents had
failed to pay the outstanding balance of $2,961.87.[5]
6. On March 30, 2010, the Department sent
Respondents an information request concerning, among other issues, Respondents’
unpaid debt to Complainant and the status of Discover Bank’s judgment against
Respondent Eilertson.
7. Respondents returned the Department’s
information request with the following notations: “Return of uncertified, unverified,
fraudulent documents ‘void for cause’ without prejudice,” “this communication
is a dishonor,” “I give no consent to these proceedings,” and “no jurisdiction
granted.” Respondents also noted, “The
collateral is now owned unconditionally by a private entity. You have no position and no claim. Provide legislated black letter law that you
can make any claim against this ‘person.’”
Finally, Respondents asserted that the Department was “an unwelcome
unlawful third party interloper to a lawful contract.”[6]
8. On May 24, 2010, the Department served
Respondents with a Licensing Order which revoked the residential building
contractor’s license of Eilertson Exteriors, imposed a $2,500 monetary penalty
against Eilertson Exteriors, and required Eilertson Exteriors and Thomas
Eilertson to cease and desist from acting or holding themselves out as a residential
building contractor, remodeler, or roofer in the State of Minnesota.[7]
9. On June 1, 2010, the Department received
Respondents’ request for a hearing to contest the May 24, 2010, Order.[8]
10. The Notice and Order for Prehearing
Conference initiating this contested case proceeding was served on the
Respondents via first class mail on June 14, 2010, at their address in
11. The Notice and Order for Prehearing
Conference set a prehearing conference for July 27, 2010, at 1:30 p.m.[10]
12. 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.[11]
13. On June 28, 2010, the Administrative Law
Judge mailed correspondence to Respondents and enclosed materials regarding the
contested case hearing process. On July
8, 2010, Respondents returned the correspondence packet. Each of the pages was crossed out and the
words “void” or “void for cause” were written across each page. On the cover letter addressed to Respondents,
Respondents wrote “the living man gives no consent to these proceedings,” and
“this contract ‘offer’ refused respectfully.”[12]
14. No one appeared at the prehearing conference
on July 27, 2010, on behalf of Respondents.
Respondents did not seek and were not granted a continuance before the
hearing. Respondents did not contact the
Administrative Law Judge between the date of the hearing and the date of this
Report to offer any explanation for their failure to appear.
17. Based upon the Respondents’ failure to
appear at the July 27, 2010, prehearing conference, the Department filed a
motion that Respondents be found to be in default in this proceeding. The Department’s motion was submitted by
letter dated July 27, 2010.[13]
18. Respondents returned the Department’s
motion letter to the Department on August 5, 2010. On the top of the letter Respondents wrote,
“void for cause,” “all rights reserved,” “without prejudice,” and “this
commercial contract offer is refused.” Respondents
also submitted additional documents with the returned letter, but they are
largely unintelligible and provide no explanation for Respondents’ failure to
appear at the prehearing conference.[14]
19. Because Respondents failed to appear at the
prehearing conference in this matter, they are in default. Pursuant to Minnesota 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, 326B.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 procedural requirements of law and rule.
3. The Respondents,
having made no appearance at the prehearing conference, and not receiving a
continuance or other relief, are 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.
(6) failed to cooperate with a commissioner's request to give
testimony, to produce documents, things, apparatus, devices, equipment, or
materials, or to access property under subdivision 2;
* * *
(8) engaged in any fraudulent, deceptive, or dishonest act or
practice; or
(9) performed work in connection with the permit, license,
registration, or certificate or conducted the person's affairs in a manner that
demonstrates incompetence, untrustworthiness, or financial irresponsibility.
5. 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:
(2) has engaged in a fraudulent, deceptive, or
dishonest practice;
* * *
(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; or
(16) has failed to comply with requests for
information, documents, or other requests from the department within the time
specified in the request or, if no time is specified, within 30 days of the
mailing of the request by the department.
6.
7. 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.
8. Based upon the facts alleged in the
Notice and Order for Prehearing Conference, the Respondents engaged in
fraudulent, deceptive or dishonest practices by presenting a sham money order
as payment for an outstanding debt.
Respondents demonstrated financial irresponsibility and
untrustworthiness by failing to pay Complainant for materials and supplies and
by failing to satisfy Discover Bank’s judgment.
Respondents also failed to comply with requests for information,
documents, or other requests from the Department. Accordingly, the Respondents harmed the
public by engaging in conduct that demonstrated that they are untrustworthy,
financially irresponsible, or otherwise incompetent or unqualified to act under
a residential building contractor license, in violation of Minn. Stat. §§ 326B.082,
subd. 11(b)(6), (8), and (9), and 326B.84 (2), (15), and (16).
9. 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 May 24, 2010, Licensing Order issued by the Commissioner of Labor and
Industry against the Respondents, Thomas W. Eilertson and Eilertson Exteriors,
LLC, be AFFIRMED.
Dated: August 12, 2010
|
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] May 24, 2010, Licensing Order (attached to and incorporated in Notice and Order for Prehearing Conference).
[2] May 24, 2010, Licensing Order.
[3] May 24, 2010, Licensing Order.
[4] May 24, 2010, Licensing Order.
[5] May 24, 2010, Licensing Order.
[6] May 24, 2010, Licensing Order.
[7] Notice and Order for Prehearing Conference, p. 2, and attached May 24, 2010, Licensing Order.
[8] Notice and Order for Prehearing Conference, p. 2.
[9] Affidavit of Service by First Class Mail of Ann Kirlin, attached to the Notice and Order for Prehearing Conference.
[10] Notice and Order for Prehearing Conference, p. 1.
[11] Notice and Order for Prehearing Conference, p. 3.
[12] Letter to Respondents, dated June 28, 2010, returned on July 8, 2010.
[13] Department’s Letter Motion for Default Judgment, July 27, 2010.
[14] Documents Department received from Mr. Eilertson on August 5, 2010.