IV. ARE DEFENDANTS ENTITLED TO OFFICIAL IMMUNITY?
Official immunity protects a public official charged by law with duties that call for the exercise of judgment or discretion unless he or she is guilty of a willful and malicious wrong. Gleason v. The Metro. Council Transit Operations, 582 N.W.2d 216, 220 (Minn. 1998). Official immunity only applies when the officer's acts are judgmental or discretionary. It does not apply to ministerial duties. Id. at 677, Susla v. State, supra, 247 N.W.2d at 912. It is important to identify the specific conduct at issue in the case. Gleason, 582 N.W.2d at 219.
Even if the tasks of public officials Defendant Juntunen, Gulland, and Thomson Township were discretionary, a showing of willfulness or malice overcomes official immunity. State by Beaulieu v. City of Moundsview, 518 N.W.2d 567, 570-71 (Minn. 1994). When an official willfully exercises his or her discretion in a manner that violates a known right, the protection of official immunity evaporates. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).
Nothing precludes personal liability for instances where good faith is absent and malice is established (Minn. R. 1300.0110, Subp. 9, Liability).
The willful failure of a public official, namely Defendants Gulland and Juntunen, to comply with a statutory requirement or agency rule is deemed to be an act committed outside the scope of authority.
Defendants failed to exercise the degree of care rendered appropriate by the particular circumstances and that of an individual of ordinary prudence in the same situation and with equal experience. The intentional failure to perform a manifest duty affecting the life or property of another constitutes “gross negligence.”
V. ARE PLAINTIFFS’ CLAIMS AGAINST THE TOWNSHIP BARRED BY VICARIOUS OFFICIAL IMMUNITY?
Thomson Township is not entitled to vicarious immunity. Respond eat superior is a common law doctrine under which an employer may be vicariously liable for the torts of an employee under the course and scope of employment. Fahrendorff v. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999). Thomson Township is vicariously liable due to the loss of immunity of its employees who engaged in malicious acts, trespassed, and failed to follow the ministerial, and day-to-day (operational level) duties.
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Because officials Gulland and Juntunen acted without legal reasonableness in violating a known right, their right to immunity is stripped. Both Defendant Gulland and Juntunen intentionally committed acts they had reason to believe are prohibited and constitute a willful wrong. By unlawfully discharging duties and acting outside of the rights afforded by the building and fire code, Defendants Gulland and Juntunen have committed an intentional tort subject to liability (Minn. R. 1300.0110, Subp. 9). Trespass is just one way in which defendants Gulland and Juntunen have unlawfully discharged their duties.
Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Defendants effectively leave out the “under certain circumstances.”
Trespass: Defendant Gulland trespassed on numerous occasions in violation of state law as well as Minn. R. 1300.0110, Subp 7, which states,
“If it is necessary to make an inspection to enforce the code or if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or to perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested. If the structure or premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.”
There was no unsafe, dangerous, or hazardous situation. These were non-emergency, non-life threatening circumstances where consent for entry was just a phone call or letter away.
Nothing in Minn. R. 1300.0110 Subp. 7 allow Defendant Gulland, as his counsel suggests to “be authorized to enter the unoccupied property to attempt to locate someone to communicate building code issues or unpermitted construction.”
Minn. R. 1300.0210, Subp. 4, Inspection requests states, “The building official shall provide the applicant with policies, procedures, and a timeline for requesting inspections. The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection. The person requesting an inspection required by the code shall provide access to and means for inspection of the work.”
The key portion here is that “the person doing the work authorized by permit shall notify the building official that the work is ready for inspection.” Defendant Gulland made several entries without consent or even attempting to seek consent, as well as requiring inspections when work wasn’t ready for inspection.
Defendant Juntunen does not have the authority or right to enter private property, even if the door was open. The mere act of entering private property, occupied or unoccupied, through a locked or open door is trespass, pure and simple. The common law of trespass dictates you stop at the door and knock, maybe even leave a note. The Plaintiffs were just a simple phone call away. Plaintiffs are both small office Postmasters in the local area, and easy to reach. There was nothing of significance to justify immediate entry. All Defendant Gulland or Juntunen had to do was call one of the Plaintiffs and ask for an inspection that evening. They did not, electing to enter known, unoccupied premises at the time. The entries made by Defendant Juntunen were clearly trespassing, and the entry of Defendant Gulland constitutes both trespass and corrupt motive. “…The Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law.” Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH).
Defendants Gulland and Juntunen have no plausible explanation on how they made entry to a known locked building. The Plaintiffs, Nick Perfetti, and contractors, Mark Blomquist and Jake Fjeld, all verified locked doors that both Defendants Gulland and Juntunen bypassed Depo., Pirila, 37:9-25,38-53:1-25, 54:1-3. Defendants Gulland and Juntunen said they simply entered by an open door. Thomson Township has admitted it has no key policy. [Depo., Pirila, 47:10-16], and therefore they would have no way of knowing who retained their keys for the Old Washington School.
Assuming the door was open, the policy remains the same. No one has the right to enter private premises, door open or not, to conduct any search or otherwise, without the consent of the property owner. A person cannot deny personal knowledge of commonly known property rights as a pretext for trespass.
The absence of a key inventory at Thomson Township invited criminal/unethical activity. It provided an opportunity for anyone with a key to do illegal/unethical things with little chance of detection. Because a corrupt individual is engaging in behavior that could affect their livelihood, such as trespassing in this case, it makes sense they would remove items from the files that would damage their standing.
These trespasses and entries without consent were clear unlawful interference with plaintiffs “constitutionally protected property rights” and unconstitutional deprivation of property without due process. Entry without consent is prohibited by Minn. R. 1300.0110 Subp. 7 and the Constitution of the State of Minnesota, Article 1st Bill of Rights, Section 10. The common law of property, the rights of ownership that include the right to control, possess, enjoy, and dispose of the property, was not honored by Defendants Gulland and Juntunen.
The 2007 Minn. Statute 609.605, Subd. 1 states, (b) a person is guilty of a misdemeanor if the person intentionally: (4) occupies or enters the dwelling or locked or posted building of another, without claim of right or consent of the owner or the consent of one who has the right to give consent, except in an emergency situation; (9) enters the locked or posted construction site of another without the consent of the owner or lawful possessor, unless the person is a business licensee.
Defendant Gulland should have documented all inspections on-site, and both Defendants Gulland and Juntunen should have documented these visits in the Thomson Township and Thomson Township Fire Department files. There are no files of any kind. There is no reason consent wasn’t sought other than corrupt motive.
Defendants understate the intent and meaning of Minn. Stat. ¶ 299F.09 regarding entry by Fire Chiefs. This clearly states that entry may be made only “after proper consent” or “pursuant to an administrative search warrant.”
Pursuant to 299F.08, Subd. 1, a fire marshal, even when investigating the origin of a fire, may enter premises, but this search must be “reasonable within the meaning of this subdivision. The need for investigatory search for the cause of the fire shall be balanced against the privacy rights of the occupant or owner of the building or premises.” Defendant Juntunen is the local Deputy Fire Marshal and is reasonably aware of this requirement. It reasonably follows that if the privacy rights are weighed in the event of even “suspicious” fires, in the absence of such situations, privacy rights would weigh much heavier.
Defendant Gulland "harassed" plaintiffs by engaging in intentional conduct which: (1) he knew or had reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim. Both Defendant Gulland and Juntunen committed acts that constitute violations of Minn. Statute § 609.749, Subd. 1 (1) and (2), Subd. 2, Subd. 5. Plaintiffs constantly feared entry by Thomson Township officials and anyone else that ever had a key to the building. All of the Plaintiffs possessions were within their property while they lived at Plaintiff Pirila’s sister’s house awaiting a Temporary Certificate of Occupancy.
Whether a party has given consent is a fact question for the jury. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 405 (Minn.App.1995), See also Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn.1982) (jury issue as to whether entrant became trespasser by exceeding scope of possessor's invitation or permission).
In Pembaur v. City of Cincinnati, 106 Sup. Ct. 1292, 1300 (1986) the Supreme Court’s ruling showed that local government and employee liability can attach to even a single decision to take unlawful action in accordance with a policy established by a single local government policy-maker. If this unlawful action is prohibited and cause for liability for local policies, it follows that state and federal laws would also be applicable.
Stated herein are claims under the Fourth, Fifth, and Fourteenth Amendments. They also make valid claims under Sections 1983 and 1985, as well as Gross Negligence.
CONCLUSION
Defendants owed a duty to plaintiffs because it assumed the duty. Defendants subsequently breached this duty, were the proximate cause of injury, and actual injury occurred. This constitutes negligence. Defendants have failed to follow the ministerial and operational level duties of their positions thereby discharging rights to immunity. The conduct discussed herein is not about discretionary acts, but those duties that are mandatory via State Statutes and Rules. There are no immunity rights to officials not acting in good faith or acting with malice. In the presence of malice and lack of good faith, all immunity defenses are moot.
Defendants have arguably committed perjury in their responses to Admissions and Interrogatories.
Because the standard of care required to fulfill a duty is a question of reasonableness, a court may grant judgment as a matter of law only if no reasonable jury find the defendant’s conduct unreasonable. Markowitz. Trespass itself is an intentional tort. Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960).
Tort claims have been made as a private cause of action and negates counsels claim that no legitimate claims exist. The Plaintiffs make clear charges of gross negligence, Fourth Amendment, Fifth Amendment, Fourteenth Amendment, Section 1983, and Section 1985 claims.
In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Whether a party has given consent is a fact question for the jury. Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 405 (Minn.App.1995). At dispute is whether Defendants Gulland and Juntunen trespassed, and what knowledge did Thomson Township and the Thomson Township Fire Department possessed about these trespasses.
Summary Judgment is unwarranted as several genuine issues of material facts remain in dispute. These include: GREB’s applicability, Energy Code applicability, malice, perjury, false statements, and the scope of culpability of defendants from the Minnesota Department of Labor & Industry investigation censuring Defendant Gulland.
Ambiguity presents a genuine issue of material fact necessitating a trial. Minn. Stat. § 645.16. “If any doubt exists as to the existence of a material fact, the doubt must be resolved in favor of finding that a fact issue exists.” State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).
By_/s Marvin Pirila
Marvin Pirila & Gail Francette, Plaintiffs Pro Per1 N Cloquet Rd W
Esko, MN 55733
(218) 391-2876
Dated October 1, 2010
APPENDIX D
_____________ _
Minnesota Data Practices Act; Relevant portions of Record.
_____________ _
TABLE OF CONTENTS
Page
plaintiffs request for production
of documents, set 1………………………221-a
LETTER FROM THOMSON TOWNSHIP REGARDING NOTICE OF CLAIM (1/15/10)..230-a
STATE OF MINNESOTA
SIXTH JUDICIAL DISTRICT
COUNTY OF ST. LOUIS
DISTRICT COURT
CASE TYPE: CIVIL LAWSUIT
FILE NUMBER: 69DU-CV-10-801
Marvin Pirila & Gail Francette
Plaintiffs,
vs. PLAINTIFFS REQUEST FOR PRODUCTION OF DOCUMENTS, SET 1
Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, Jeffrey Juntunen
Defendants
TO: DEFENDANTS:
8. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested hiring of a new building inspector.
RESPONSE: Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see Thomson Town Board Meeting Minutes for official actions. Discovery continues.
9. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested contract for John Gulland and Duane Grace.
RESPONSE: Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Discovery continues.
10. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested discipline of building inspector John Gulland.
RESPONSE: Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Discovery continues.
12. All documents regarding, reflecting, concerning, pertaining to or evidencing the actual, anticipated, contemplated, proposed, or suggested discipline of fire chief Jeffrey Juntunen.
RESPONSE: Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Discovery continues
18. All documents that support, tend to support, prove, or tend to prove any of the allegations, facts, defenses, denials, or other matters asserted in the Answer or other response to the Complaint in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
19. All documents that refute, or tend to refute, any claims asserted in Plaintiff’s Complaint in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
20. All documents, regarding, reflecting, concerning, pertaining to or evidencing any action or inaction taken by Defendant with respect to obtaining a temporary certificate of occupancy for plaintiff’s property referred to in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
21. All documents, regarding, reflecting, concerning, pertaining to or evidencing any action or inaction taken by Defendant with respect to requests for information referred to in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
22. All documents regarding, reflecting, concerning, pertaining to, evidencing, or supporting the Minnesota Department of Labor and Industry investigation referred to in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
26. All documents regarding, reflecting, concerning, pertaining to, evidencing, or supporting any contention discussed in meetings about plaintiff’s property referred to in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
27. All documents, including written orders and instructions, regarding, reflecting, concerning, pertaining to, evidencing, or supporting any contention made on plaintiff’s property referred to in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
33. All documents, including emails and meetings, reflecting any communications between John Gulland, Duane Grace, Alan Adams, Greg Hallback, Heat Mechancial/Rick Hatanpaa, plaintiffs, Jeffrey Juntunen, Rick Bassett, Rhonda Peleski, Terry Hill, Ruth Janke, Brent Pykkonen, David Pritchett, Marvin Bodie, Barry Greive/MN DOLI, Mark Blomquist, Paul Sandstrom, all contractors, all Thompson Township employees, all Thomson Township Fire Department employees/volunteers, and all others regarding the plaintiffs project referred to in this lawsuit.
RESPONSE: Objection, this Request calls for a legal conclusion. Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, see attached documents for public and non-privileged data, as well as Thomson Town Board meeting minutes. Discovery continues.
- The addresses of owners, with first and last names, of John Gulland’s last five GREB projects, with priority given to those he administered in Thomson Township.
Objection, this Request is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant, admissible evidence. Objection, this Request call for private data under the Minnesota Data Practices Act. Notwithstanding said objection, no other GREB projects in Thomson Township.
Dated: May 28, 2010
By Stephanie A. Angolkar
Paul D. Reuvers, #217700
Stephanie A. Angolkar, #388336
Attorneys for Town of Thomson Defendants
9321 Ensign Avenue South
Bloomington, MN 55438
Telephone: (952) 548-7200
JOHN M. GASSERT*↑ SENIOR COUNSELORS:
FRANK YETKA FLOYD D. RUDY*
DAVID C. PRITCHETT**
WILLIAM T. hELWIG↑↑*** LAWRENCE R. YETKA, SARAH B. HELWIG Retired
Rudy, Gassert, Yetka & Pritchett, P.A. ATTORNEYS AT LAW
January 15, 2010
Mr. Marvin Pirila
Ms. Gail Francette
1 N. Cloquet Road W.
Esko, MN 55733-9533
RE: Town of Thomson
Request for Information, etc.
Our File No. 81076
Dear Mr. Pirila and Ms. Francette:
As you are aware, I am the attorney for the Town of Thomson, and my law office represents the Town on various matters which arise from time to time. I am in receipt of letters and requests you have written to the Town office, to me, and to others, and this letter will attempt to address the issues raised by your letters/requests.
1. Notice of Claim to Personal Injury. This document has no date on its face but was attached to an email sent by you on January 6, 2010, to John Gulland's work email address, City of Duluth Mayor Don Ness, via his public email address, the Town of Thomson via its public email address, and the Thomson Township Fire Department. The 22 page document sets forth various grievances alleged by you and seeks redress for $3,270,220 in damages you allege to have suffered "due to three years of intentional personal injury, disparity, and indifference." The Town acknowledges receipt of your letter, but in no way acknowledges any right to damages on your part or that you have complied with Minnesota statutory requirements in bringing any claim for damages. Please also be advised that the Town of Thomson denies responsibility for all damages you allege to have suffered.
2. Request for Information. Versions of this document dated January 9, 2010, and January 11, ______________________________________________
813 CLOQUET AVENUE • CLOQUET, MINNESOTA 55720-1613 • TELEPHONE (218) 879-3363 • FAX (218) 879-4033 • Email: office@cloquetlaw.com_____________________________________
813 CLOQUET AVENUE • CLOQUET, MINNESOTA 55720-1613 • TELEPHONE (218) 879-3363 • FAX (218) 879-4033 • Email: office@cloquetlaw.com_____________________________________
•Also Licensed to Practice in Wisconsin
Real Property Specialist, Certified by the Minnesota State Bar Association
••Also Admitted in Texas
Patent Attorney, Registered to Practice before the U.S. Patent & Trademark Office
•••Also Admitted in Virginia and the District of Columbia
2010, are addressed to the Town of Thomson, John Gulland, the Thomson Township Fire Department, myself (at both home and office), and possibly others. It appears you are seeking information under the Minnesota Government Data Practices Act. Rhonda Peleski, the Clerk/Treasurer of the Town of Thomson, is the responsible authority (as defined in M.S. Section 13.02, Subd. 16) for the collection, use and dissemination of the Town's data. You have requested a significant volume of information from various sources. Please be advised that your request for information from Mr. Gulland, the Town's Volunteer Fire Department, and individuals who are employed by the Town is inappropriate, and you are hereby instructed to cease and desist from making contact with such persons for the purpose of obtaining public data held by the Town. Every effort will be made to accommodate your request for information. However, your request must first be analyzed in order to determine whether you have requested private data or protected nonpublic data. To the extent you have requested data that is accessible to the public, you will be afforded an opportunity to review such data during regular office hours at the Town Hall, by appointment and subject to availability of Town staff. You will be required to pay for copies and, if Town staff is required to redact or assist your review of such data, you will be required to pay the costs of time spent by staff on this matter.
3. Request for division of property. I am in receipt of an email you sent on Saturday, January 9, 2010, to the Town office requesting information relative to division of your property at 1 N. Cloquet Rd W., desiring to parcel off a 1/2 acre. I am attaching a copy of the deed by which the Town conveyed this property to you, to which is attached specific restrictive covenants relating to the use of your property. I assume you have already reviewed the Town's subdivision and zoning ordinances; if not, you can certainly obtain copies from the Town Hall, and I have copies in my office. I would be happy to meet with you to learn exactly how you plan to divide your property, to review the restrictive covenants, and to assist your process of subdividing according to Town ordinances. Please contact my office for an appointment at your earliest convenience.
Very truly yours,
/s David C. Pritchett
David C. Pritchett
cc: Town of Thomson
Pirila.ltr.wpd
APPENDIX E
_____________ _
Minnesota Department of Labor and Industry Findings
_____________ _
09-CV-10-934
_____________ _
table of contents
Page
MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY FINDINGS…………………………235-a
STATE OF MINNESOTA COMMISSIONER OF LABOR AND INDUSTRY – CONSENT ORDER…..
………………………………………………………239-a
MINNESOTA DEPARTMENT OF
LABOR & INDUSTRY
443 Lafayette Road N. (651) 284-5005
St. Paul, Minnesota 55155 1-800-DIAL-DLI
www.doli.state.mn.us TTY: (651) 297-4198
September 1, 2009
Mr. John Gulland VIA CERTIFIED AND
6917 Three Lakes Road FIRST CLASS MAIL
Canyon, MN 55717
RE: Conclusion of our investigation into 1 North Cloquet Rd. (file #09.1244).
Dear Mr. Gulland:
Based on all of the information obtained during the investigation, the Department has concluded that you engaged in the following violations of the statutes and rules that govern duties of a Minnesota certified building official:
1. Allowing a building to be constructed without a required fire suppression system is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1305.903.2.7.
2. Requiring a structure to comply with the current energy code despite applicable energy code exceptions is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 7676.1400.
3. You were not aware that Minn. R. 1311 was specifically to be used for the project unless an alternate method or code was requested and approved. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.
4. You approved documents showing a code edition that was not adopted by the State of Minnesota. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.
5. Allowing work to continue without first issuing the proper permits is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 3.
6. Failure to issue all correction orders in writing, is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 4
7. You did not maintain administrative control over this project, thus allowing others to dictate code compliance. This resulted in confusion and/or delays. This is a violation of Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.
The Department is prepared to issue a Licensing Order regarding the violations outlined above that may include civil penalties up to $10,000 per violation. However, we are willing to allow you an opportunity to resolve this matter on an informal basis. Attached please find a Consent Order, by which you would agree to be censured and take five additional continuing education units in the next 12 months. You would be fined $5,000, though the $5,000 would be stayed conditioned upon your compliance with the provisions of the Consent Order.
John Gulland
September 1, 2009
Page Two
If you wish to consent, please sign the "Consent to Entry of Order form" (page 3 of the Consent Order) in front of a notary public, and return the signed and notarized Order to my attention at the Department of Labor and Industry, no later than Tuesday, September 15, 2009.
Should you decline to enter into the Consent Order, or if a signed Consent Order is not received by September 15, 2009, the Department will issue a Licensing Order outlining the Department's conclusions and a civil penalty. Please be advised that the Department may seek civil penalties of $10,000 for each violation outlined in the Order. Once the Licensing Order is issued, you would have the right to request a hearing to contest the Licensing Order. The request would have to made in writing, within 30 days of the issuance of the Licensing Order.
You would be afforded all of their rights pursuant to the provisions of Minn. Stat. § 14 of the Administrative Procedures Act. A contested case procedure would involve the scheduling of a hearing before and Administrative Law Judge during which you and the Department would present evidence in support of our positions. You have the right to be represented at the hearing by legal counsel. The Administrative Law Judge would draft findings based on the evidence presented at the hearing and forward these findings to the Commissioner of Labor and Industry. The Commissioner would then make a final decision as to the appropriateness of the Licensing Order.
Please feel free to contact me at the number listed below if you have any questions or need clarification.
Sincerely,
/s Barry Greive
BARRY GREIVE
Senior Building Code Representative
Construction Codes and Licensing Division
Tel: (651) 552-5041
Enclosure (Consent Order)
STATE OF MINNESOTA
COMMISSIONER OF LABOR AND INDUSTRY
In the Matter of Building Office CONSENT
John Gulland ORDER
Certification No. 1438
To: John Gulland
6917 Three Lakes Road
Canyon, MN 55717
Commissioner of Labor and Industry Steve Sviggum (“Commissioner”) has determined as follows:
1. The Commissioner has advised John Gulland (“Respondent”) that he is prepared to commence formal action against Respondent’s building official certification pursuant to Minn. Stat. § 326B.082, subd. 11, and § 326B.133, subd. 5 (2008) based on allegations that Respondent engaged in violations of Minn. Stat. § 326B.133, subd. 4 (2008) and Minn. R. 1300.0110 (2007).
2. Respondent acknowledges that he has been advised of his right to a hearing in this matter, to present argument to the Commissioner and to appeal from any adverse determination at a hearing, and Respondent hereby expressly waives those rights. Respondent further acknowledges that he has been represented by legal counsel throughout these proceedings, or has been advised of his right to be represented by legal counsel, which right he hereby waives.
3. Respondent has agreed to informal disposition of this matter without an admission of wrongdoing and has agreed to waive a hearing as provided under Minn. Stat. § 14.59 (2008) and Minn. R. 1400.5900 (2007).
4. The following Order is in the public interest.
NOW THEREFORE, IT IS ORDERED as follows that:
A. Respondent John Gulland, building official certification No. 1438, is hereby censured.
B. Respondent agrees to obtain not less thant five (5) continuing education units (CEU’s) over and above the number of CEU’s required to maintain his building official certification. These additional CEU’s must be related to the State Building Code, specifically regarding the proper procedures for administration of the Code. This additional education shall be in addition to, and not claimed for the continuing education requirements of Respondent’s building official certification. Proof of this additional education shall be submitted to the Commissioner within 12 months of the date of this Order and shall have been attended within the same time period.
C. Respondent is assessed a civil penalty of $5,000; however, payment of the civil penalty is STAYED so long as Respondent complies with this Consent Order and following its entry commits no subsequent violation of any law, rule or order related to the duties entrusted to the Commissioner. If Respondent violates this Consent Order or any other law, rule or order, the stay shall be lifted, and the civil penalty shall become due and payable. Respondent may challenge the Commissioner’s factual basis for lifting the stay, but not the appropriateness of the stayed civil penalty.
This Order shall be effective upon signature on behalf of the Commissioner.
Dated: 9/30/09
STEVE SVIGGUM
Commissioner
By:s/Charlie Durenberger
Manager, Enforcement Services
Construction Codes and Licensing Division
Manager, Enforcement Services
Construction Codes and Licensing Division
443 Lafayette Road North
Saint Paul, MN 55155
Telephone: (651) 284-5069
Saint Paul, MN 55155
Telephone: (651) 284-5069
CONSENT TO ENTRY OF ORDER
The undersigned, John Gulland, states that he has read the foregoing Consent Order; that he knows and fully understands its contents and effect; that he has been advised of his right to a hearing; that he has been represented by legal counsel in this matter, or that he has been advised of his right to be represented by legal counsel and that he has waived this right; and that he consents to entry of this Order by the Commissioner of Labor and Industry. It is further expressly understood that this Order constitutes the entire settlement agreement between the parties hereto, there being no other promises or agreements, either express or implied.
JOHN GULLAND
By: s/John Gulland
(Signature)
(Signature)
STATE OF Minnesota
COUNTY OF Carlton
This instrument was acknowledged before me on 9/29/09 by John Gulland.
(stamp) DIANE MARIE BONG
Notary Public-Minnesota
My Commission Expires Jan 31, 2013
Notary Public-Minnesota
My Commission Expires Jan 31, 2013
Diane Marie Bong
(Signature of notary officer)
(Signature of notary officer)
notary public
Title (and Rank)
My commission expires: 1/31/2013
Title (and Rank)
My commission expires: 1/31/2013
APPENDIX F
Constitutional and Statutory Provisions Involved
_____________ _
09-CV-10-934
_____________ _
TABLE OF CONTENTS
Page
MINN. STAT. § 13.02 DEFINITIONS…………245-a
MINN. STAT. §473.121 DEFINITIONS………245-a
MINNESOTA ASSOCIATION OF TOWNSHIPS….
……………………………………………………….246-a
MINN. STAT. § 368.01 POWERS OF CERTAIN METROPOLITAN AREA TOWNS……………..246-a
MINN. STAT. § 326B.082 ENFORCEMENT...246-a
MINN. STAT. § 326B.106 GENERAL POWERS OF COMMISSIONER OF LABOR AND INDUSTRY….
……………………………………………………….248-a
MINN. STAT. § 326B.133 BUILDING OFFICIALS.
………………………………………………………248-a
MINN. STAT. § 609.605 trespass………….249-a
MINNESOTA RULE 1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL…………250-a
MINNESOTA RULE 1300.0210 INSPECTIONS….
……………………………………………………….251-a
MINN. STAT. § 13.02 DEFINITIONS
Subd. 11. Political subdivision. "Political subdivision" means any county, statutory or home rule charter city, school district, special district, any town exercising powers under chapter 368 and located in the metropolitan area, as defined in section 473.121, subdivision 2, and any board, commission, district or authority created pursuant to law, local ordinance or charter provision...
MINN. STAT. §473.121 DEFINITIONS
Subd. 2. Metropolitan area or area. "Metropolitan area" or "area" means the area over which the Metropolitan Council has jurisdiction, including only the counties of Anoka; Carver; Dakota excluding the city of Northfield; Hennepin excluding the cities of Hanover and Rockford; Ramsey; Scott excluding the city of New Prague; and Washington.
MINNESOTA ASSOCIATION OF TOWNSHIPS
"While all townships except urban townships located in the seven county metropolitan area are exempt from the Minnesota Government Data Practices Act (a decision made by the legislature in recognition of the fact that most townships do not have the type of staffing required by the Act), members of the public can still obtain information in a number of ways. First, townships voluntarily provide access to public data upon reasonable requests...
Minn. Stat. § 368.01 POWERS OF CERTAIN METROPOLITAN AREA TOWNS
Subd. 19. General Welfare. The town board may provide for the government and good order of the town, the suppression of vice and immorality, the prevention of crime, the protection of public and private property, the benefit of residence, trade, and commerce, and the promotion of health, safety, order, convenience, and the general welfare by ordinances consistent with the Constitution and laws of the United States and this state as it deems expedient.
MINN. STAT. § 326B.082 ENFORCEMENT
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.
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 on the person. The administrative order may require the person to correct the violation, and may assess monetary penalties...Except as provided in paragraph (b), the commissioner may issue to each person a monetary penalty up to $10,000 for each violation of applicable law committed by the person....
Subd. 11. Li censing 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 ....related to the activity for which the permit, license, registration, or certificate has been applied 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.
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.
MINN. STAT. § 326B.106 GENERAL POWERS OF COMMISSIONER OF LABOR AND INDUSTRY
Subdivision 1. Adoption of Code. Subject to sections 326B.101 to 326B.194, the commissioner shall by rule and in consultation with the Construction Codes Advisory Council establish a code of...duties and responsibilities for code administration, including procedures for administrative action, penalties, and suspension and revocation of certification...Except as otherwise provided in sections 326B.101 to 326B.194, the commissioner shall administer and enforce the provisions of those sections.
MINN. STAT. § 326B.133 BUILDING OFFICIALS
Subd. 5. Grounds. The commissioner may use any enforcement provision in section 326B.082 against an applicant or individual holding a certificate, if the applicant or individual;
(1) violates a provision of sections 326B.101 to 326B.194 or rule adopted under those sections; or
(2) engages in fraud, deceit, or misrepresentation while performing the duties of a certified building official.
Nothing in this subdivision limits or otherwise affects the authority of a municipality to dismiss or suspend a building official at its discretion, except as otherwise provided for by law.
MINN. STAT. § 609.605 trespass
Subdivision 1. Misdemeanor
(4) "Owner or lawful possessor," as used in paragraph (b), clause (9), means the person on
whose behalf a building or dwelling is being constructed, altered, painted, or repaired and the
general contractor or subcontractor engaged in that work.
whose behalf a building or dwelling is being constructed, altered, painted, or repaired and the
general contractor or subcontractor engaged in that work.
(5) "Posted," as used:
(i) in paragraph (b) in clause (9), means the placement of a sign at least 11 inches square in a conspicuous place on the exterior of the building, or in a conspicuous place within the property on which the building is located. The sign must carry a general notice warning against trespass.
(7) (b) A person is guilty of a misdemeanor if the person intentionally
(3) trespasses on the premises of another and, without claim of right, refuses to depart from
the premises on demand of the lawful possessor;
the premises on demand of the lawful possessor;
(4) occupies or enters the dwelling or locked or posted building of another, without claim
of right or consent of the owner or the consent of one who has the right to give consent, except
in an emergency situation;
of right or consent of the owner or the consent of one who has the right to give consent, except
in an emergency situation;
(7) returns to the property of another with the intent to abuse, disturb, or cause distress in or
threaten another, after being told to leave the property and not to return, if the actor is without
claim of right to the property or consent of one with authority to consent;
threaten another, after being told to leave the property and not to return, if the actor is without
claim of right to the property or consent of one with authority to consent;
(8) returns to the property of another within one year after being told to leave the property
and not to return, if the actor is without claim of right to the property or consent of one with
authority to consent;
and not to return, if the actor is without claim of right to the property or consent of one with
authority to consent;
(9) enters the locked or posted construction site of another without the consent of the owner
or lawful possessor, unless the person is a business licensee; or
or lawful possessor, unless the person is a business licensee; or
(10) enters the locked or posted aggregate mining site of another without the consent of the
owner or lawful possessor, unless the person is a business licensee.
owner or lawful possessor, unless the person is a business licensee.
MINNESOTA RULE 1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL.
Subp. 7. Right of entry. If it is necessary to make an inspection to enforce the code if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested. If the structure or premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry.
Subp. 9. Liability. The building official...or employee charges with the enforcement of the code, while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by the code or other pertinent laws or ordinances, is not rendered personally liable...
MINNESOTA RULE 1300.0210 INSPECTIONS
Subp. 4. Inspection requests. ...The person doing the work authorized by a permit shall notify the building official that the work is ready for inspection...
APPENDIX G
_____________ _
Trespassing/Harassment Complaint
_____________ _
09-CV-10-934
_____________ _
table of contents
Page
TRESPASSING COMPLAINT FILED WITH TOWN OF THOMSON POLICE DEPARTMENT
(6/24/10..........……………………………………254-a
FAX TO COUNTY ATTORNEY REGARDING TRESPASSING COMPLAINT (8/10/10)…….257-a
FAX TO COUNTY ATTORNEY REGARDING TRESPASSING COMPLAINT (7/21/10)…….265-a
MEETING MINUTES OF THOMSON TOWNSHIP
8/1/08……………………………………………….270-a
PETITIONERS LETTER TO THOMSON TOWNSHIP ATTORNEY PRITCHETT (9/9/08)…..
……………………………………………………….271-a
EMAIL FROM PLAINTIFF PIRILA TO MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY INVESTIGATOR BARRY GREIVE REGARDING TRESPASSES (5/13/09).............280-a
EMAIL FROM PLAINTIFF PIRILA TO ARCHITECT ALAN ADAMS REGARDING ENTRIES TO BUILDING WITHOUT CONSENT OF OWNERS (6/17/09)…………………………..281-a
STATEMENT FROM ELECTRICIAN/BUILDING CONTRACTOR MARK BLOMQUIST REGARDING TRESPASSES OF FIRE CHIEF JEFFREY JUNTUNEN…………………………282-a
TOWN OF THOMSON POLICE DEPARTMENT
TOWN OF THOMSON POLICE DEPARTMENT
1 NO. CLOQUET RD. W. PAGE 1 OF 2
ESKO, MINNESOTA, 55733
Case No. PD10309104
=====================================
TO BE COMPLETED BY THE OFFICER
=====================================
Name Marvin Dean Pirila |DOB04 / 04 / 1966___
Address 1 North Cloquet Rd West Esko, MN 55733
Phone | Phone Ext.
Home:AC(218) 391-2876|Work: AC (218) 389-6904
=======================================
THIS FORM IS USED BY VICTIMS/WINESSES/SUSPECTS TO VOLUNTARILY PROVIDE INFORMATION TO THE TOWN OF THOMSON POLICE DEPARTMENT. THE INFORMATION IS NECESSARY FOR THE COMPLETE AND SUCCESSFUL INVESTIGATION OF A CRIMINAL CASE. FAILURE TO RETURN THE COMPLETED STATEMENT WITHIN TEN (10) DAYS CAN RESULT IN THE CASE BEING CONSIDERED INACTIVE/CLOSED._____________
|I acknowledge that |Signature |Date |
|I have read and |s/Marvin Pirila |6/24/10|
| understand the above |________________________
Directions: Please be as complete and accurate as you possibly can. Include full names, addresses, telephone numbers, and relationships whenever possible. Describe unknown persons/vehicles/places as best you can. Try to determine dates and times of incidents as closely as you can. Your cooperation is appreciated.________
On or about September 5, 2008, Jeffrey Juntunen was witnessed by contractors Mark Blomquist and Jake Fjeld, on two different days, inside the building at 1 N Cloquet Road W in Thomson Township. Mr. Juntunen was inside the locked building upon their arrival one day, and entered on his own yet another day, through a locked door. Mr. Juntunen did not identify himself and simply wandered about the building at will. He neither had the consent of owners, nor requested it. There was also no notice of his visit either by phone or in writing. The first official notice that he had been in the building was via a letter by David Pritchett on September 5, 2008, stating that “There are large piles of demolition materials both within and outside the building, in violation of state fire code.” It is believed that Jeffrey Juntunen possessed his old key for the Old Washington School and used it to grant himself access these days. [Statutes violated: Minn. Stat. 299F.08, subd. 1, 299F.09, 541.05, subd. 1 (3)]
Jeff Juntunen, 55 E Highway 61, Esko (218) 879-3893. Jake Fjeld, 312 17th ST, Cloquet, MN 55720 (218) 879-4928. Mark Blomquist, 1930 County Rd. 142, Mahtowa, MN 55707 (218) 393-3142.
On 2/15/07 John Gulland entered premises illegal and later based a “Stop Work Order” on this trespass.
On 8/1/08 John Gulland accompanied Paul Sandstrom on a plumbing inspection without consent from owners. In March of 2009 John Gulland was found inside the locked building when Marvin Pirila, Gail Francette, and Nick Perfetti showed up for a scheduled inspection. Mr. Gulland would not explain how he entered the building when it was locked when confronted by Gail Francette. John Gulland confessed to Marvin Pirila on the phone that he had let himself in.
Between April and June of 2009, John Gulland accompanied Alan Adams on two to three building inspections without consent of owners. [Minn. Stat. 541.05, subd. 1 (3) and Minn. R. 1300.0110]
John Gulland, 6917 Three Lake Rd, Canyon, MN 55717. (218) 730-5163, (218) 345-6791___________
WITNESS: |I have read each page of
|this statement which
Nick Perfetti, |consists of ___page(s),
91 Stillmeadow Rd |and I hereby certify that
Esko (218) 591-7453 |the facts contained
Gail Francette |herein are true and
1 N Cloquet Rd. W. |correct.
Esko, MN 55733 |
(218) 590-3585 |______________________
FAX
To: Tom Pertler From: MARVIN D. PIRILA
Fax: (218) 384-9181 Date: 8/10/10___________
Phone:(218) 384-9166 Pages: 5_______________
Re: Harassment/Trespassing Complaint CC:_____
[] Urgent [X] For Review [] Please Comment [] Please Reply [] Please Recycle
__________________________________________
*Comments:
Mr. Pertler,
Please read attached documents for applicable statutes regarding harassment and trespassing. We would like a prompt response as to that action your office will be taking and when.
Thanks you.
Marvin Pirila
(218) 391-2876
MARVIN PIRILA & GAIL FRANCETTE allege trespass and harassment by
MARVIN PIRILA & GAIL FRANCETTE allege trespass and harassment by
JOHN GULLAND and JEFFREY JUNTUNEN
John Gulland and Jeffrey Juntunen are criminally harassed property owners Marvin Pirila and Gail Francette. Both Mr. Gulland and Mr. Juntunen engaged in intentional conduct which they knew or had reason to know would cause the owners, under the circumstances, to feel threatened, oppressed, persecuted, and intimidated; and caused this reaction on the part of the owners. These are violations of Minn. Stat. § 609.749, Subd. I. Mr. Gulland and Mr. Juntunen both engaged in conduct that included returning to owners property without consent.
The intentional and reckless act by Jeffrey Juntunen and John Gulland has caused harm by entering Mr. Pirila and Ms. Francette’s property without their permission (trespass), and dangerous conduct (intentional infliction of emotional distress).
Property owners have suffered tremendous familial, financial, and emotional distress from ongoing harassing conduct from Mr. Gulland and Mr. Juntunen.
The acts of the Mr. Gulland and Mr. Juntunen, including trespassing and allegations based on trespass, showed deliberate disregard for the rights of property owners.
These violations require no proof of specific intent (Minn. Stat. § 609.749, Subd. 1a)
609.749 HARASSMENT; STALKING; PENALTIES.
Subdivision 1. Definition.
As used in this section, "harass" means to engage in intentional conduct which:
(1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and
(2) causes this reaction on the part of the victim.
Subd. 1a. No proof of specific intent required.
In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.
Subd. 2. Harassment and stalking crimes.
(a) A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:
(1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;
(2) stalks, follows, monitors, or pursues another, whether in person or through technological or other means;
(3) returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;
Subd. 5. Pattern of harassing conduct.
(a) A person who engages in a pattern of harassing conduct with respect to a single victim or one or more members of a single household which the actor knows or has reason to know would cause the victim under the circumstances to feel terrorized or to fear bodily harm and which does cause this reaction on the part of the victim, is guilty of a felony and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.
(b) For purposes of this subdivision, a "pattern of harassing conduct" means two or more acts within a five-year period that violate or attempt to violate the provisions of any of the following or a similar law of another state, the United States, the District of Columbia, tribal lands, or United States territories:
609.748 HARASSMENT; RESTRAINING ORDER.
Subdivision 1. Definition.
For the purposes of this section, the following terms have the meanings given them in this subdivision.
(a) "Harassment" includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
609.605 TRESPASS.
Subdivision 1. Misdemeanor.
(a) The following terms have the meanings given them for purposes of this section.
(1) "Premises" means real property and any appurtenant building or structure.
(2) "Dwelling" means the building or part of a building used by an individual as a place of residence on either a full-time or a part-time basis. A dwelling may be part of a multidwelling or multipurpose building, or a manufactured home as defined in section 168.002, subdivision 16.
(3) "Construction site" means the site of the construction, alteration, painting, or repair of a building or structure.
(4) "Owner or lawful possessor," as used in paragraph (b), clause (9), means the person on whose behalf a building or dwelling is being constructed, altered, painted, or repaired and the general contractor or subcontractor engaged in that work.
(5) "Posted," as used:
(i) in paragraph (b), clause (4), means the placement of a sign at least 8-1/2 inches by 11 inches in a conspicuous place on the exterior of the building, or in a conspicuous place within the property on which the building is located. The sign must carry a general notice warning against trespass;
(ii) in paragraph (b), clause (9), means the placement of a sign at least 8-1/2 inches by 11 inches in a conspicuous place on the exterior of the building that is under construction, alteration, or repair, or in a conspicuous place within the area being protected. If the area being protected is less than three acres, one additional sign must be conspicuously placed within that area. If the area being protected is three acres but less than ten acres, two additional signs must be conspicuously placed within that area. For each additional full ten acres of area being protected beyond the first ten acres of area, two additional signs must be conspicuously placed within the area being protected. The sign must carry a general notice warning against trespass; and
(iii) in paragraph (b), clause (10), means the placement of signs that:
(A) carry a general notice warning against trespass;
(B) display letters at least two inches high;
(C) state that Minnesota law prohibits trespassing on the property; and
(D) are posted in a conspicuous place and at intervals of 500 feet or less.
(7) "Building" has the meaning given in section 609.581, subdivision 2.
(b) A person is guilty of a misdemeanor if the person intentionally:
(4) occupies or enters the dwelling or locked or posted building of another, without claim of right or consent of the owner or the consent of one who has the right to give consent, except in an emergency situation;
(9) enters the locked or posted construction site of another without the consent of the owner or lawful possessor, unless the person is a business licensee;
609.795 LETTER, TELEGRAM, OR PACKAGE; OPENING; HARASSMENT.
Subdivision 1.Misdemeanors.
Whoever does any of the following is guilty of a misdemeanor:
(3) with the intent to abuse, disturb, or cause distress, repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, or packages.
FAX
To: Tom Pertler From: MARVIN D. PIRILA
Fax: (218) 384-9181 Date: 7/21/10___________
Phone:(218) 384-9166 Pages: 3_______________
Re: Trespassing Complaint CC:_____
[] Urgent [X] For Review [] Please Comment [] Please Reply [] Please Recycle
__________________________________________
*Comments:
Attn: Tom Pertler
In addition to state statutes regarding trespass, these rules apply regarding entry for fire marshals/fire chiefs and building inspectors.
Thanks,
Marvin Pirila
(218) 391-2876
299F.08 PREMISES, WHEN ENTERED
Subdivision 1. Immediate entry. In the performance of the duties imposed by the provisions of this chapter, the state fire marshal and subordinates, during and within a reasonable time after a fire has been extinguished, may enter any building or premises where a fire has occurred and other buildings and premises adjoining or near thereto to investigate and gather evidence. In determining whether a search is reasonable within the meaning of this subdivision, the need for investigatory search for the cause of the fire shall be balanced against the privacy rights of the occupant or owner of the building or premises. This does not apply to Jeffrey Juntunen in this incident.
Subd. 2. Administrative search warrant. (a) After the reasonable time prescribed by subdivision 1 for an investigatory search has expired, subsequent entries to the building or premises to investigate and gather evidence may be made only if there is consent from the owner or occupant of the building or premises or pursuant to an administrative search warrant issued by a judge.
(b) In determining whether to issue an administrative search warrant for the purposes of this subdivision, the judge, in conforming the decision to constitutional doctrine governing warrant procedures for administrative searches, shall consider but not be limited to the following factors:
(1) scope of the proposed search;
(2) number of prior entries by fire officials;
(3) time of day when the search is proposed to be made;
(4) lapse of time since the fire;
(5) continued use of the building; and
(6) the owner's or occupant's efforts to secure the building against intruders.
Subd. 3. Criminal search warrant. If during the course of an investigatory search under an administrative search warrant issued in accordance with subdivision 2, the fire marshal or subordinates find probable cause to believe arson has occurred and require further access to the building or premises to gather evidence for possible prosecution, a criminal search warrant must be obtained from a judge.
299F.09 BUILDING ENTERED WITHIN REASONABLE HOURS.
The state fire marshal, chief assistant, deputies, and subordinates, the chief of the fire department of each city where a fire department is established, the mayor of a city where no fire department exists, or the clerk of a town in territory without the limits of a city, at all reasonable hours may enter into all buildings and upon all premises within their jurisdiction for the purpose of examination, after proper consent from the occupant or owner or pursuant to an administrative search warrant. If the examination occurs subsequent to a fire, entry into a building or premise is governed by section 299F.08. History: (5960) 1913 c 564 s 11; 1973 c 123 art 5 s 7; 1981 c 106 s 3; 1986 c 444 As discussed no consent was sought.
CONSTITUTION OF THE STATE OF MINNESOTA, ARTICLE I BILL OF RIGHTS
Sec. 10. Unreasonable searches and seizures prohibited. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL, Subp. 7. Right of entry. If it is necessary to make an inspection to enforce the code or if the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition contrary to or in violation of the code that makes the structure or premises unsafe, dangerous, or hazardous, the building official or designee may enter the structure or premises at reasonable times to inspect or to perform the duties imposed by the code, provided that if the structure or premises is occupied, credentials must be presented to the occupant and entry requested. If the structure or premises is unoccupied, the building official shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry. If entry is refused, the building official shall have recourse to the remedies provided by law to secure entry. Mr. Gulland made no such attempts.
Meeting Minutes
Date: August 1, 2008
Location: One North Cloquet Road West, Esko, MN
Former Washington Community Center
Persons Present: Brad Jensen - State Plumbing Inspector (218) 733-7839
Paul Sandstrom - Town of Thomson Plumbing inspector (218) 879-9719
North Star Plumbing - Plumbing Contractor - Leroy Lindstrom (Owner) North Branch, Minnesota (651) 775-0063
John Gulland - Town of Thomson Building Inspector (218) 879-9719
RE: Plumbing Inspection for project located at above location.
The second floor, west side, is roughed-in for waste and vent only on 5-22-08. This is the only work Paul Sandstrom has looked at this time.
The upper floor, east side, is not ready for inspection at this time. Plumber needs more work done on this building so plumber can complete this work on upper floor, east side.
Paul Sandstrom - Thomson Township Plumbing Inspector -- Inspection notes to date - 1 North Cloquet Rd. J.G.
Marvin Pirila & Gail Francette
1 N Cloquet Rd W
Esko, MN 55733
September 9, 2008
David C. Pritchett
813 Cloquet Ave
Cloquet, MN 55720-1613
Re: Former Washington Community Center Renovation Project
Dear Mr. Pritchett,
The files you have reviewed are apparently missing significant information regarding this project. Once you read this letter you’ll have some sense of the frustration we have experienced with Township and some of its staff, particularly Mr. John Gulland.
Let me begin with the violations of law we have experienced from Township officials. Mr. Gulland and the fire chief have both entered the premises without the knowledge of owners. In fact, we believe they have entry keys, because on at least one occasion, the doors were locked when the building was entered. Regardless of whether they gained access with a key, they cannot legally access private property without the owners’ permission. We are requesting the dates the fire chief entered illegally so we may bring it to the attention of the police department. We also request that both Mr. Bassett and Mr.Gulland be dismissed immediately from their positions.
Issues you noted:
Missing information on mechanical engineer: Heat Mechanical (Rick Hatanpaa) is in the process of doing the mechanical drawings and plumbing designs for unfinished portions of the building. His number is 390-1933. We had previously informed Mr. Gulland that we had engaged the services of a mechanical engineer.
Building designs: These are being done by Greg Hallback (879-6068.) Mr. Gulland is and has always been very aware that Greg works with architect Alan Adams, who has been on board, as needed, from the first day Greg became involved.
No structural engineer has been required by Mr. Gulland at any time. He has suggested we have one look at the gym roof. We have already talked to Greg Hallback about possible structural engineers. Scott Erickson is scheduled to visit on Wednesday, September 10, 2008, to review the project, but again, this has continued to be at our option only. Scott called Wednesday morning to say he was too busy to accept this job.
A plumbing inspection, to our knowledge, is scheduled September 10, 2008, by the State. This was delayed because the Township plumbing inspector, Paul Sandstrom, withdrew from his position on this project. We received no notification and only found out through one of our contractors. No official reason has been provided.
We have seen no written notice of any violations of fire codes by any person at any time during our ownership of this building. We have contractors who witnessed a fire official walking through the building illegally, twice. Mr. Gulland brought it up only after we questioned Mr. Gulland on how he managed to be in the building without us present when the doors were locked. (Mr. Gulland was supposed to be waiting outside the building to meet us for a walk through.) He then brought up the fireman’s concerns (but no fire code violations) when I questioned how many Township officials were giving themselves illegal access to the building. And again, there was no mention of actual fire code violations, only concerns. We still ask where is the actual fire code violation in writing, supported by Minnesota State Statute. Either way, we have people taking this wood and have hired others to move it out into the parking lot.
The I-Joists claim is just another classic example of ongoing delay tactics. Initially, Duane Grace (the collaborative building inspector of this project) agreed to look up the specifications of the I-Joists during a scheduled walk-through. Later, Mr. Gulland requested the building owners get them. The first information we received from the material provider was not acceptable to Mr. Gulland. He requested certain specific numbers which were provided. Again this was not good enough. We then called the building division of the material provider in Eau Claire and also the manufacturer itself for yet more information requested by Mr. Gulland. This proved the adequacy of the installation of the I-Joists in the building. And, again, this was not enough. We turned in yet more information on September 10, 2008, showing that no lateral support was needed. Furthermore, we have completed all the requests made by Mr. Gulland regarding the installation of these I-Joists, and he approved the project to go ahead. Now, months later, this is being thrown into the mix. This is just another frustrating inconsistency of position taken by Mr. Gulland and the Township.
The I-joists were not in the original plans, but were put in the newer ones to satisfy Mr. Gulland’s request. This is a past tense item and needs no further mention other than the request regarding information on the need, or lack of, intermittent structural supports. The I-joists were installed with 2x4’s run perpendicular to the I-joists every 8’. This was unnecessary per the manufacturer, who neglected to send this information originally with their fax since it isn’t a needed feature.
Mr. Gulland has requested numerous drawings which we have provided – we would say to excess. Few projects are without on-site changes. At what point is the Township going to foot the expenses that are being requested, and not supported by the code or common logic?
Mr. Gulland has harassed virtually every contractor we’ve had on this job. This includes insulting them, suggesting they were acting as a general contractor when they weren’t, and questioning their work (without the benefit of specific codes to support his inquisitions). Further, he has attempted to question them on facets of the construction of which they do not, and would not, have knowledge. Now, he has resorted in part, to attacking them personally on other jobs they have in the area.
The preceding information appears to be conveniently missing from the file:
In the quest for fairness, we must now start asking questions that relate to a disparity in enforcing the building codes. Some troubling problems have come to our attention since taking ownership of this building.
Mr. Gulland maintained an office here for 13 years, looking the other way on dangerous building changes:
- Who oversaw the changes in this building when the Township owned it and who sanctioned them? Where are the plans? We have requested them for continuity and they have not been provided.
- The electrical panel upstairs was not secured properly. This was discovered when it fell, unexpectedly and dangerously, during demolition.
- A wall erected between two rooms upstairs was improperly secured. It was held by a narrow chain and two coat hooks supporting it mid-wall.
- We are attempting to continue the gym as an assembly area, yet Mr. Gulland claims it is a change in use. How can it be fine for them and not for us? The wheelchair accessible bathrooms there are also, inexplicably, not up to code.
- Did Mr. Gulland okay the floating, unsupported floor of the men’s bathroom on the main floor, knowing the other end was supported by a floor jack under two floor joists?
- Did Mr. Gulland approve the sewer venting terminating in the second attic?
- Who okayed funds to put in drop ceilings when there was absolutely no insulation in the attic?
- We heard that the Township received an 18-month stay from Mr.Gulland on building code violations while they were here. Is that true? This will become relevant in future proceedings.
- Mr. Gulland even made a comment about having to upgrade wiring in the gym that the Township had put in and clearly not up to code. Did a state electrical inspector inspect all wiring changes here? If so, where are the records?
- If this building was perceived as dangerous in any manner why wasn’t a structural engineer requested when the Township owned it? The many groups and employees that met here constantly, as Mr. Gulland would now suggest, would have been at great risk.
Another related concern we have is Mr. Marv Bodie’s participation in the meeting when the building permit was issued. This appears on its face to be an ethical violation. You cannot participate in a process which could possibly be appealed back to you (as County Commissioner). He has since left, but not before being in a position considered incompatible. Even his position at Carlton County appeared incompatible. He has also left that job, returning to his position in St. Louis County. I have been informed that we can have just one 8’ x 8’ sign on our property (and only related to a personally owned business), yet during the county commissioner race, Mr. Bodie had them in numerous places around the Township. What zoning ordinance allows that?
Other answers we would like answered as citizens of this township.
- How much did the Township pay for their new building?
- How much additional money did they pay for improvements?
- Is it common practice for members of the zoning committee to hide certain violations of the zoning code when the error originated from them?
- When we took ownership of this building, wasn’t it true that the Township had no monies allotted to cover its ongoing costs?
The township seems under question with regards to the very rules they enforce on others.
We have had both a building contractor and master plumber say they would never do business in Thomson Township again because of the ridiculous hurdles they are facing.
John Gulland failed to respond to a message at his Duluth office and appears to be unplugging his home phone number as that rings through continuously. We confirmed that he was in the office last night, but failed to call us. Our designer, Mr. Hallback, wasn’t able to reach him as well, but did leave a detailed message. Mr. Pritchard has also not answered messages left for him on September 10, 2008 by Mr. Pirila.
We view the detailed items as shameful conduct, unethical, and unprofessional for any public official or government employee. Clearly, we have some strong arguments that we intend to present to State Attorney General and an attorney regarding abuse of position, intent, and financial harm. It has been nearly impossible to move ahead consistently with Mr. Gulland’s constant shifting of positions. His requests have seemed to lack solid support from code regulations and his actions cause constant delays. We understand we have made our mistakes and been working in unfamiliar territory, but we have tried the best we can to follow all codes and regulations. However, a person with knowledge of the code should certainly do better than Mr. Gulland.
Thank you for your anticipated response.
Respectfully,
/s Marvin Pirila
Marvin Pirila & Gail Francette
(218) 391-2876
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