2007 Minnesota Statutes

326B.082 ENFORCEMENT.
    Subdivision 1. Remedies available. The commissioner may enforce all applicable law under
this section. The commissioner may use any enforcement provision in this section, including
the assessment of monetary penalties, against a person required to have a license, registration,
certificate, or permit under the applicable law based on conduct that would provide grounds for
action against a licensee, registrant, certificate holder, or permit holder under the applicable
law. The use of an enforcement provision in this section shall not preclude the use of any other
enforcement provision in this section or otherwise provided by law.
    Subd. 2. Access to information and property; subpoenas. (a) In order to carry out the
purposes of the applicable law, the commissioner may:
    (1) administer oaths and affirmations, certify official acts, interview, question, take oral
or written statements, and take depositions;
    (2) request, examine, take possession of, test, sample, measure, photograph, record, and copy
any documents, apparatus, devices, equipment, or materials;
    (3) at a time and place indicated by the commissioner, request persons to appear before the
commissioner to give testimony and produce documents, apparatus, devices, equipment, or
materials;
    (4) issue subpoenas to compel persons to appear before the commissioner to give testimony
and produce documents, apparatus, devices, equipment, or materials; and
    (5) with or without notice, enter without delay upon any property, public or private, for the
purpose of taking any action authorized under this subdivision or the applicable law, including
obtaining information, remedying violations, or conducting surveys, inspections, or investigations.
    (b) Persons requested by the commissioner to give testimony or produce documents,
apparatus, devices, equipment, or materials shall respond within the time and in the manner
specified by the commissioner. If no time to respond is specified in the request, then a response
shall be submitted within 30 days of the commissioner's service of the request.
    (c) Upon the refusal or anticipated refusal of a property owner, lessee, property owner's
representative, or lessee's representative to permit the commissioner's entry onto property as
provided in paragraph (a), the commissioner may apply for an administrative inspection order in
the Ramsey County District Court or, at the commissioner's discretion, in the district court in the
county in which the property is located. The commissioner may anticipate that a property owner
or lessee will refuse entry if the property owner, lessee, property owner's representative, or lessee's
representative has refused to permit entry on a prior occasion or has informed the commissioner
that entry will be refused. Upon showing of administrative probable cause by the commissioner,
the district court shall issue an administrative inspection order that compels the property owner or
lessee to permit the commissioner to enter the property for the purposes specified in paragraph (a).
    (d) Upon the application of the commissioner, a district court shall treat the failure of
any person to obey a subpoena lawfully issued by the commissioner under this subdivision as
a contempt of court.
    Subd. 3. Service. Unless otherwise specified, service of a document on a person under
this section or section 326B.083 may be by mail, by personal service, or in accordance with
any consent to service filed with the commissioner. Service by mail shall be accomplished in
the manner provided in Minnesota Rules, part 1400.5550, subpart 2. Personal service shall be
accomplished in the manner provided in Minnesota Rules, part 1400.5550, subpart 3.
    Subd. 4. Fax transmission. When this section or section 326B.083 permits a request for
reconsideration or request for hearing to be served by fax on the commissioner, the fax shall not
exceed 15 pages in length. The request shall be considered timely served if the fax is received
by the commissioner, at the fax number identified by the commissioner in the order or notice of
violation, no later than 4:30 p.m. central time on the last day permitted for faxing the request.
Where the quality or authenticity of the faxed request is at issue, the commissioner may require
the original request to be filed. Where the commissioner has not identified quality or authenticity
of the faxed request as an issue and the request has been faxed in accordance with this subdivision,
the person faxing the request does not need to file the original request with the commissioner.
    Subd. 5. Time computation. In computing any period of time prescribed or allowed by this
section, the day of the act, event, or default from which the designated period of time begins to
run shall not be included. The last day of the period so computed shall be included, unless it is
a Saturday, Sunday, or legal holiday, in which event the period runs until the next day which
is not a Saturday, Sunday, or legal holiday.
    Subd. 6. Notices of violation. (a) The commissioner may issue a notice of violation to any
person who the commissioner determines has committed a violation of the applicable law. The
notice of violation must state a summary of the facts that constitute the violation and the applicable
law violated. The notice of violation may require the person to correct the violation. If correction is
required, the notice of violation must state the deadline by which the violation must be corrected.
    (b) The commissioner shall issue the notice of violation by:
    (1) serving the notice of violation on the property owner or on the person who committed
the violation; or
    (2) posting the notice of violation at the location where the violation occurred.
    (c) If the person to whom the commissioner has issued the notice of violation believes the
notice was issued in error, then the person may request reconsideration of the parts of the notice
that the person believes are in error. The request for reconsideration must be in writing and must
be served on or faxed to the commissioner at the address or fax number specified in the notice
of violation by the tenth day after the commissioner issued the notice of violation. The date on
which a request for reconsideration is served by mail shall be the postmark date on the envelope
in which the request for reconsideration is mailed. If the person does not serve or fax a written
request for reconsideration or if the person's written request for reconsideration is not served on or
faxed to the commissioner by the tenth day after the commissioner issued the notice of violation,
the notice of violation shall become a final order of the commissioner and will not be subject to
review by any court or agency. The request for reconsideration must:
    (1) specify which parts of the notice of violation the person believes are in error;
    (2) explain why the person believes the parts are in error; and
    (3) provide documentation to support the request for reconsideration.
    The commissioner shall respond in writing to requests for reconsideration made under this
paragraph within 15 days after receiving the request. A request for reconsideration does not
stay a requirement to correct a violation as set forth in the notice of violation. After reviewing
the request for reconsideration, the commissioner may affirm, modify, or rescind the notice of
violation. The commissioner's response to a request for reconsideration is final and shall not be
reviewed by any court or agency.
    Subd. 7. Administrative orders; correction; assessment of monetary penalties. (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.
    Subd. 8. Hearings related to administrative orders. (a) Within 30 days after the
commissioner issues an administrative order or within 20 days after the commissioner issues the
notice under section 326B.083, subdivision 3, paragraph (b), clause (3), the person to whom
the administrative order or notice is issued may request an expedited hearing to review the
commissioner's order or notice. The request for hearing must be in writing and must be served on
or faxed to the commissioner at the address or fax number specified in the order or notice. If the
person does not request a hearing or if the person's written request for hearing is not served on or
faxed to the commissioner by the 30th day after the commissioner issues the administrative order
or the 20th day after the commissioner issues the notice under section 326B.083, subdivision 3,
paragraph (b), clause (3), the order will become a final order of the commissioner and will not be
subject to review by any court or agency. The date on which a request for hearing is served by
mail shall be the postmark date on the envelope in which the request for hearing is mailed. The
hearing request must specifically state the reasons for seeking review of the order or notice. The
person to whom the order or notice is issued and the commissioner are the parties to the expedited
hearing. The commissioner must notify the person to whom the order or notice is issued of the
time and place of the hearing at least 15 days before the hearing. The expedited hearing must be
held within 45 days after a request for hearing has been served on the commissioner unless the
parties agree to a later date.
    (b) All written arguments must be submitted within ten days following the close of the
hearing. The hearing shall be conducted under Minnesota Rules, parts 1400.8510 to 1400.8612, as
modified by this subdivision. The Office of Administrative Hearings may, in consultation with the
agency, adopt rules specifically applicable to cases under this section.
    (c) The administrative law judge shall issue a report making findings of fact, conclusions
of law, and a recommended order to the commissioner within 30 days following the close of
the record.
    (d) If the administrative law judge makes a finding that the hearing was requested solely
for purposes of delay or that the hearing request was frivolous, the commissioner may add to
the amount of the penalty the costs charged to the department by the Office of Administrative
Hearings for the hearing.
    (e) If a hearing has been held, the commissioner shall not issue a final order until at
least five days after the date of the administrative law judge's report. Any person aggrieved
by the administrative law judge's report may, within those five days, serve written comments
to the commissioner on the report and the commissioner shall consider the comments. The
commissioner's final order may be appealed in the manner provided in sections 14.63 to 14.69.
    Subd. 9. Injunctive relief. In addition to any other remedy provided by law, the
commissioner may bring an action for injunctive relief in the Ramsey County District Court or,
at the commissioner's discretion, in the district court in the county in which the commissioner
has determined a violation of the applicable law has occurred or is about to occur to enjoin
the violation. A temporary restraining order and other injunctive relief shall be granted by the
district court if the court determines that a person has engaged in or is about to engage in an act,
conduct, or practice constituting a violation of the applicable law. The commissioner shall not be
required to show irreparable harm.
    Subd. 10. Stop orders. (a) If the commissioner determines based on an inspection or
investigation that a person has violated or is about to violate the applicable law, the commissioner
may issue to the person a stop order requiring the person to cease and desist from committing the
violation.
    (b) If the commissioner determines that a condition exists on real property that violates the
applicable law, the commissioner may issue a stop order to the owner or lessee of the real property
to cease and desist from committing the violation and to correct the condition that is in violation.
    (c) The commissioner shall issue the stop work order by:
    (1) serving the order on the person who has committed or is about to commit the violation;
    (2) posting the order at the location where the violation was committed or is about to be
committed or at the location where the violating condition exists; or
    (3) serving the order on any owner or lessee of the real property where the violating
condition exists.
    (d) A stop order shall:
    (1) describe the act, conduct, or practice committed or about to be committed, or the
condition, and include a reference to the applicable law that the act, conduct, practice, or condition
violates or would violate; and
    (2) provide notice that any person aggrieved by the stop order may request a hearing as
provided in paragraph (e).
    (e) Within 30 days after the commissioner issues a stop order, any person aggrieved by the
order may request an expedited hearing to review the commissioner's action. The request for
hearing must be made in writing and must be served on or faxed to the commissioner at the
address or fax number specified in the order. If the person does not request a hearing or if the
person's written request for hearing is not served on or faxed to the commissioner on or before
the 30th day after the commissioner issued the stop order, the order will become a final order of
the commissioner and will not be subject to review by any court or agency. The date on which a
request for hearing is served by mail is the postmark date on the envelope in which the request for
hearing is mailed. The hearing request must specifically state the reasons for seeking review of the
order. The person who requested the hearing and the commissioner are the parties to the expedited
hearing. The hearing shall be commenced within ten days after the commissioner receives the
request for hearing. The hearing shall be conducted under Minnesota Rules, parts 1400.8510 to
1400.8612, as modified by this subdivision. The administrative law judge shall issue a report
containing findings of fact, conclusions of law, and a recommended order within ten days after the
conclusion of the hearing. Any party aggrieved by the administrative law judge's report shall have
five days after the date of the administrative law judge's report to submit exceptions and argument
to the commissioner. Within 15 days after receiving the administrative law judge's report, the
commissioner shall issue an order vacating, modifying, or making permanent the stop order. The
commissioner and the person requesting the hearing may by agreement lengthen any time periods
described in this paragraph. The Office of Administrative Hearings may, in consultation with the
agency, adopt rules specifically applicable to cases under this subdivision.
    (f) A stop order issued under this subdivision shall be in effect until it is modified or
vacated by the commissioner or an appellate court. The administrative hearing provided by
this subdivision and any appellate judicial review as provided in chapter 14 shall constitute the
exclusive remedy for any person aggrieved by a stop order.
    (g) Upon the application of the commissioner, a district court shall find the failure of
any person to comply with a final stop order lawfully issued by the commissioner under this
subdivision as a contempt of court.
    Subd. 11. Licensing orders; grounds; reapplication. (a) The commissioner may deny an
application for a permit, license, registration, or certificate if the applicant does not meet or fails
to maintain the minimum qualifications for holding the permit, license, registration, or certificate,
or has any unresolved violations or unpaid fees or monetary penalties related to the activity for
which the permit, license, registration, or certificate has been applied for or was issued.
    (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:
    (1) committed one or more violations of the applicable law;
    (2) submitted false or misleading information to the state in connection with activities
for which the permit, license, registration, or certificate was issued, or in connection with the
application for the permit, license, registration, or certificate;
    (3) allowed the alteration or use of the person's own permit, license, registration, or
certificate by another person;
    (4) within the previous five years, was convicted of a crime in connection with activities for
which the permit, license, registration, or certificate was issued;
    (5) violated a final administrative order issued under subdivision 7 or a final stop order issued
under subdivision 10, or injunctive relief issued under subdivision 9;
    (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;
    (7) retaliated in any manner against any employee or person who is questioned by, cooperates
with, or provides information to the commissioner or an employee or agent authorized by the
commissioner who seeks access to property or things 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.
    (c) If the commissioner revokes a person's permit, license, registration, or certificate under
paragraph (b), the person is prohibited from reapplying for the same type of permit, license,
registration, or certificate for at least two years after the effective date of the revocation. The
commissioner may, as a condition of reapplication, require the person to obtain a bond or comply
with additional reasonable conditions the commissioner considers necessary to protect the public.
    (d) If a permit, license, registration, or certificate expires, or is surrendered, withdrawn, or
terminated, or otherwise becomes ineffective, the commissioner may institute a proceeding
under this subdivision within two years after the permit, license, registration, or certificate was
last effective and enter a revocation or suspension order as of the last date on which the permit,
license, registration, or certificate was in effect.
    Subd. 12. Issuance of licensing orders; hearings related to licensing orders. (a) If the
commissioner determines that a permit, license, registration, or certificate should be conditioned,
limited, suspended, revoked, or denied under subdivision 11, or that the permit holder, licensee,
registrant, or certificate holder should be censured under subdivision 11, then the commissioner
shall issue to the person an order denying, conditioning, limiting, suspending, or revoking the
person's permit, license, registration, or certificate, or censuring the permit holder, licensee,
registrant, or certificate holder.
    (b) Any order issued under paragraph (a) may include an assessment of monetary penalties
and may require the person to cease and desist from committing the violation or committing the
act, conduct, or practice set out in subdivision 11, paragraph (b). The monetary penalty may be up
to $10,000 for each violation or act, conduct, or practice committed by the person. The procedures
in section 326B.083 must be followed when issuing orders under paragraph (a).
    (c) The permit holder, licensee, registrant, certificate holder, or applicant to whom the
commissioner issues an order under paragraph (a) shall have 30 days after service of the order to
request a hearing. The request for hearing must be in writing and must be served on or faxed to
the commissioner at the address or fax number specified in the order by the 30th day after service
of the order. If the person does not request a hearing or if the person's written request for hearing
is not served on or faxed to the commissioner by the 30th day after service of the order, the order
shall become a final order of the commissioner and will not be subject to review by any court or
agency. The date on which a request for hearing is served by mail shall be the postmark date on
the envelope in which the request for hearing is mailed. If the person submits to the commissioner
a timely request for hearing, a contested case hearing shall be held in accordance with chapter 14.
    (d) Paragraph (c) does not apply to summary suspension under subdivision 13.
    Subd. 13. Summary suspension. In any case where the commissioner has issued an order
to revoke or suspend a license, registration, certificate, or permit under subdivision 12, the
commissioner may summarily suspend the person's permit, license, registration, or certificate
before the order becomes final. The commissioner shall issue a summary suspension order when
the safety of life or property is threatened or to prevent the commission of fraudulent, deceptive,
untrustworthy, or dishonest acts against the public. The summary suspension shall not affect
the deadline for submitting a request for hearing under subdivision 12. If the commissioner
summarily suspends a person's permit, license, registration, or certificate, a timely request for
hearing submitted under subdivision 12 shall also be considered a timely request for hearing on
continuation of the summary suspension. If the commissioner summarily suspends a person's
permit, license, registration, or certificate under this subdivision and the person submits a timely
request for a hearing, then a hearing on continuation of the summary suspension must be held
within ten days after the commissioner receives the request for hearing unless the parties agree
to a later date.
    Subd. 14. Plan for assessing penalties. The commissioner may prepare a plan for assessing
penalties in orders issued under subdivision 7 or 12. The commissioner shall provide a 30-day
period for public comment on any such plan. Penalties assessed by the commissioner in
accordance with the plan shall be presumed reasonable.
    Subd. 15. Effect on other laws. Nothing in this section shall be construed to limit the
application of other state or federal laws, including specifically but not exclusively section
270C.72, that require suspension of, revocation of, denial of, or refusal to renew a permit, license,
registration, or certificate issued by the commissioner.
    Subd. 16. Misdemeanor penalties. Except as otherwise provided by law, a person who
violates an applicable law is guilty of a misdemeanor.
    Subd. 17. Revocation and suspension of license. If a person fails to pay a penalty owed
under this section or section 326B.083, the commissioner may revoke, suspend, or deny any or all
licenses, permits, certificates, and registrations issued by the department.
History: 2007 c 140 art 3 s 2