Questions
From: MARVIN PIRILA (marvindp@msn.com)
Sent: Wed 5/13/09 3:35 PM
To: barry.grieve@state.mn.us
Barry,
Thanks for getting our project going. Things have got much better since you got involved.
We have one issue to discuss with you. Every week, whether any progress is made or not, both John Gulland (inspector) and Alan Adams (architect) schedule themselves to be here at 4:00 p.m. This presents a hardship for us as both my wife and I don't get home from work until about 4:45 p.m. each day. We are forced to take vacation time to attend these meetings, just to rehash the same things or very little. I have asked them not to come until called but they refuse. Last week there was nothing new to discuss, yet they came. We have one full-time person working, and other part-time help, so nothing goes real quick. I wonder if this a retaliatory measure on their part to drive up our costs...
Thanks,
Marvin Pirila & Gail Francette
1 N Cloquet Rd W
Esko, MN 55733
(218) 391-2876
marvindp@msn.com
Thursday Visits
From: MARVIN PIRILA (marvindp@msn.com)
Sent: Wed 6/17/09 10:38 PM
To: alarchitect@aol.com
Alan,
What is the purpose of the Thursday visits? Nothing new is being designed, and Barry Grieve isn't requesting anything (I asked). We would like these to stop as requested before, and be on a call only basis when design work is need or your advice is required. The building inspector will inform us when he requires something from you and we'll contact you. We have requested to be notified of all visits and yet again we were surprised by you and the building inspector last week. I received no phone call or email as required.
Please let us know if you need to visit and what the visit would entail. We will work with you to make everything code compliant.
Thanks,
Marvin Pirila
(218) 391-2876
To whom it may concern:
During the time that I had been subcontracted to frame new walls into the upper floor of the building at 1 north Cloquet Ave. At about midweek prior to lunch we arrived back from break to a building that, as far as we knew we had been locked, to find a man who introduced himself as the fire chief walking around the inside of the building. We introduced ourselves as the framers and asked if he would like us to call the building owners so he could speak to them. He declined but added that he had concerns about the pile of old lath just outside the west side of the building. We told him if he had any concerns that he could talk to the owners who were contracting the project themselves. Again, he told us that it was not necessary to call them at that time.
/s Mark A. Blomquist
Mark A. Blomquist
Mahtowa MN
APPENDIX H
_____________ _
Transcript of Proceedings – State Trial Court
_____________ _
09-CV-10-934
_____________ _
1 STATE OF MINNESOTA DISTRICT COURT
2
3 COUNTY OF CARLTON
4
5 SIXTH JUDICIAL DISTRICT
6 --------------------------------------------------------------------
7 Marvin Pirila and
8 Gail Francette,
9
10 Plaintiffs,
11
12 vs. File No.: 09-CV-10-0934
13
14 John Gulland, Jeffrey Juntunen, Thomson
15 Township, Thomson Township Fire
16 Department, and Duane Grace,
17
18 Defendants.
19--------------------------------------------------------------------
20 TRANSCRIPT OF PROCEEDINGS
21 -------------------------------------------------------------------
22 The above-entitled matter came on before
23 the Honorable Dale A. Wolf, Judge of District 24 Court, in the Carlton County Courthouse,
25 Carlton, Minnesota, on the 14th day of October,
26 2010, at approximately 10:41 a.m.
27 -------------------------------------------------------------------
28 APPEARANCES
29
30 Marvin Pirila and Gail Francette, pro-se
1 FOR THE DEFENDANTS Gulland,
2 Juntunen, Thomson Township, and Thomson
3 Township Fire Department:
4
5 Stephanie Angolkar
6 Iverson, Reuvers, LLC
7 9321 Ensign Avenue South
8 Bloomington, Minnesota 55438
9
10 FOR THE DEFENDANT DUANE GRACE:
11 Michael J. McNamara
12 Reyelts, Bateman & Schramm
13 332 West Superior Street
14 Suite 700
15 Duluth, Minnesota 55802
16
17 Kevin R. Hamre, RPR; Court Reporter
18 Carlton, Minnesota
19 ------------------------------------------------------------------
20 PROCEEDINGS
21
22 THE COURT: Turning next to Pirila and
23 Francette as plaintiffs versus Thomson
24 Township, et al., the matter is before the Court
25 today for both the scheduling conference, as
26 well as a hearing on a motion for summary
27 judgment. Since that's a dispositive motion,
28 we'll proceed on the motions first.
29 I'm not certain, Counsel, which order you
30 want to go in.
1 MS. ANGOLKAR: Yes, Your Honor.
2 Stephanie Angolkar for the township defendants,
3 which comprise of Jeffrey Juntunen, John
4 Gulland, Thomson Township, and the Thomson
5 Township Fire Department.
6 THE COURT: Do you wish to proceed first
7 on your motion?
8 MS. ANGOLKAR: Sure.
9 We're here on the joint motion for summary
10 judgment by defendants and there are several
11 claims in this litigation; some which are
12 contained in the complaint and some which
13 have apparently popped up in responsive
14 memorandum for summary judgment.
15 Just as a housekeeping matter, I note that
16 we have not been served with plaintiffs'
17 response to Duane Grace's motion for summary
18 for judgment, and it is my understanding that
19 Duane Grace's counsel has not been served with
20 a response to our motion. The local rules do
21 require that all parties are served with all
22 responsive memoranda and motion papers.
23 With regards to the merits of our motion for
24 summary judgment, the Court need not address
25 each and every single claim in this case before
26 addressing the immunity issues and there are
27 three immunity theories here: They are the
28 statutory immunity, which is granted by
29 Minnesota Statutes; official immunity; and
30 qualified immunity.1
1 Now, immunity provides protection to a
2 public official from even the existence of a
3 lawsuit, let alone liability. It is effectively lost if
4 erroneously permitted to go to trial.
5 First, statutory immunity. That is found at
6 section 466.03, subdivision 6. It provides
7 immunity to a person, a public official
8 performing discretionary functions.
9 Now, there's plenty of case law cited in our
10 memorandum at page 17 and 18, discussing the 11 discretionary functions of a building official
12 when interpreting the building code, also fire
13 chiefs interpreting the fire codes.
14 Additionally, as discussed in the memo, it is
15 also clear that these officials owe a duty to the
16 public, not to specific individuals in performing
17 the different projects.
18 Now, this discretionary conduct, specifically
19 regarding these defendants, relates to the
20 inspections, review building permits,
21 applications, interpretation of building codes, 22 interpretation of fire codes. Therefore, they're
23 entitled to statutory immunity and all plaintiffs'
24 claims should be dismissed.
25 Additionally, official immunity is another
26 doctrine which provides immunity to public
27 officials performing discretionary duties. As set
28 forth at page 19 of our memo, additionally,
29 Minnesota Rule 1300.0110, subpart 9,
30 specifically provides additional immunity to
31 building officials performing those tasks.
1 Moreover, the township is entitled to vicarious
2 official immunity, based on the grant of
3 immunity to its employees.
4 Lastly, with regards to plaintiffs'
5 constitutional claims, I'm sure the Court is
6 aware that section 1983 is the provision that
7 permits an individual to bring a constitutional
8 claim against a public official, and qualified
9 immunity is the doctrine that protects that
10 public official from constitutional claims, so
11 long as that official has not violated a clearly
12 established constitutional right of which a
13 reasonable person would have known.
14 Now, here, plaintiffs have, at least in their
15 complaint that has been pled, is a Fourth
16 Amendment claim, based on their challenge
17 that there have been trespasses to their
18 property at the time that it was a large brick
19 schoolhouse that they were not occupying, that
20 could not be occupied, and under extensive
21 renovation to convert it into an apartment unit 22 into that building, thus there was no reasonable 23 expectation of privacy at the time. If, because
24 this is a summary judgment motion, if we
25 accept plaintiffs' claims that there have been
26 alleged trespasses on their property, whcih the
27 defendants do deny, but for accepted, there was
28 no reasonable expectation of privacy as set forth
29 in the case law that we have cited at page 21
30 and page 23 of our memo, that have looked at
31 cases that may be somewhat similar where
1 there's an unoccupied building under
2 construction and an inspection performed.
3 Now here, there was not a specific inspection
4 performed. There had been -- one of the
5 incidents is that they claim that Mr. Gulland
6 accompanied a plumbing inspector and he didn't
7 specifically have permission to go with that
8 plumbing inspector who did, in fact, have
9 consent. Rather than getting into the details of
10 each and every claim of the plaintiffs,
11 defendants simply refer the Court to those
12 doctrines of qualified immunity and the cases
13 cited in there, there was no reasonable
14 expectation of privacy. There's no dispute that
15 these alleged entries happened before plaintiffs
16 moved into the property.
17 Otherwise, with regard to the remaining
18 arguments, we rest our pleadings, unless the
19 Court has any questions/
20 THE COURT: All right. I have no further 21 questions in regards to the memorandum.
22 MS. ANGOLKAR: Okay.
23 THE COURT: I assume, Counsel -- you can
24 respond at this time if you want to after hers,
25 and then we'll hear from Mr. McNamara.
26 MR. PIRILA: I'll just wait for his.
27 THE COURT: All right.
28 MR. MCNAMARA: Thank you, Your Honor.
29 My name is Michael McNamara, and I'm here
30 on behalf of Duane Grace.
1 I'm not going to reinvent the wheel and
2 restate all the arguments that Ms. Angolkar has
3 already stated to the Court. However, I'd like to
4 briefly add that Duane Grace is also entitled to
5 the statutory and official immunities argued by
6 Ms. Angolkar and put in Mr. Duane Grace's
7 memorandum of law in support of summary
8 judgment as he was an employee of the Thomson
9 Township acting in his official capacity for these 10 claims.
11 The tasks were clearly discretionary, as cited
12 by case law and presented, and clearly involved
13 the interpretation and analysis of which
14 discretionary tasks require.
15 The plaintiffs in their memorandum of law in
16 response have attempted to argue that Duane
17 Grace acted with malice, which was taken
18 outside the scope of any official statutory
19 immunity and that's simply not the case here,
20 Your Honor. The support of this claim is a few 21 emails, and if you read over those emails
22 themselves, you'll find that they occurred well 23 after any causal complaint that occurred in this
24 incident, that they're very minor, if anything,
25 responding to excessive complaints, and
26 furthermore, show that Duane Grace did not
27 alter his behavior in any manner that would
28 affect the statutory or official immunity
29 defenses. In fact, the emails to the architect
30 and designer of plaintiffs continue to show extra
31 ways in which plaintiffs could take the benefit of
1 cost saving measures.
2 And finally, Your Honor, in regard to the
3 general claims, like Ms. Angolkar, I'm not going
4 to go over the facts of each individual claim here,
5 but one thing they do share is that there's no
6 duty for Mr. Grace to the plaintiffs, specifically.
7 His role of inspection is to the public at large. In 8 fact, the only case that plaintiffs cite in their
9 memorandum of law in response to establish that
10 duty was the Cracraft and City of St. Louis
11 Park case, which was a duty to the public at
12 large after I inquired.
13 Without duty, there can be no negligence,
14 Your Honor, and there's no genuine issue of
15 material fact to this Court here today.
16 THE COURT: And for the record, you're not 17 suing on contract theory in regards to that
18 defendant because that defendant was
19 employed only by the township, right?
20 MR. PIRILA: Correct.
21 THE COURT: You're not claiming that you
22 had a contract with them?
23 MR. PIRILA: No.
24 MR. MCNAMARA: Thank you, Your Honor.
25 THE COURT: All right.
26 MR. PIRILA: May I remain seated?
27 THE COURT: Yes.
28 MR. PIRILA: First of all, as far as the
29 immunities go, the immunity does not apply to
30 cases of malice, cases of ill-will, retaliation, and
31 especially trespass. Trespass itself is an
1 intentional tort.
2 And in correction to what Ms. Angolkar said, 3 we were in our residence at the time of some of
4 the trespasses, two of them. We happened to be
5 at work. He was -- defendant Gulland was
6 joining architect Allan Adams and they may
7 argue that, you know, Allan Adams said the
8 architect could have him come along, but we
9 were opposed to the architect as well making
10 visits during the day when we were stuck at
11 work.
12 THE COURT: Who was the architect
13 employed by?
14 MR. PIRILA: By us.
15 THE COURT: And if he went there, he
16 would commit trespass, wouldn't he?
17 MR. PIRILA: He did. I reported that to the
18 Department of Labor.
19 THE COURT: And is he a party to this
20 action?
21 MR. PIRILA: He isn't, not at this point he
22 isn't.
23 THE COURT: Well, at this point, we're at
24 the point of having the matter scheduled for
25 trial here on a summary judgment.
26 Let me ask you this: If your own employee
27 had somebody come there and they bring along
28 somebody else; for example, I may know that
29 my interruptible fuel is going to be tested by
30 Minnesota Electricity, or whoever the power
1 company is. I did know that there was going to
2 be a second person that came along, but in terms 3 of my privacy and my damages, if any, I have no
4 privacy to interrupt if somebody is already there.
5 MR. PIRILA: I understand. I'm gonna go on
6 here.
7 After we wtihdrew our consent to his visits,
8 he no longer had the authority to himself visit or
9 bring someone else along. I'm just stating for the
10 record that some of these --
11 THE COURT: Okay. But what if the
12 defendant has no knowledge of that? He's
13 coming along with the architect because --
14 MR. PIRILA: I had shared emails with Mr.
15 Gulland that I wanted a conversation with him
16 personally regarding visits because he was
17 forcing us out of work early at a time I could not
18 leave work.
19 On the other incidents, we had arranged a
20 meeting for inspection with Mr. Gulland. Gail's
21 son Nick had shown up. He was going to tag
22 along because of all the change in verbal
23 requirements and the door was locked. He only
24 lives a few minutes away so he left. We were
25 gonna meet him at 4:45 because my wife and I
26 do not get back until then. When we all
27 returned, including Gail's son -- well, they
28 returned before I did. They saw John Gulland's
29 vehicle outside, the door had been locked, that's
30 why her son couldn't get in, and John Gulland
1 was already inside the building inside a locked 1
2 door, walking around the building, and my wife,
3 plaintiff Gail Francette, immediately confronted
4 him on how he gained access to the building. He
5 had to have a key and Thomson Township has
6 already acknowledged. They have no key policy.
7 They don't know who has keys. They later
8 answered they didn't have keys, but first they
9 have no key policy. They don't know who has
10 them, so he had allowed himself entry into the
11 building.
12 THE COURT: For what purpose, to commit
13 a burglary?
14 MR. PIRILA: To freely wrong, is my belief,
15 because we were facing allegations based on the 16 possibility -- he couldn't have known anything
17 inside that building, short of breaking into it.
18 There was ill-will throughout. You know, at the
19 very beginning --
20 THE COURT: Well. when you say "ill-will,"
21 we get cases where parties from the get-go who 22 have ill-will because of boundary line disputes
23 and easements, and whatever, but when you
24 start out with a contract and an architect who's 25 your employee, who is working with Mr. Grace
26 is helping him, that they're on these premises,
27 just like a house under construction may have
28 10 different people there coming and going on a
29 given day, some subcontractors, some delivery
30 person that's bringing out something that one of
31 the carpenters ordered that you didn't know
1 about, didn't know Viking Electric was going to
2 bring out some switch gear and there they are
3 inside the building leaving the switch gear. Had
4 they technically entered on your land without
5 your permission, maybe, yes. Is there a trespass
6 legally? It might be iffy. Are there damages? It
7 would be hard to say there's any damages. But
8 when you say malice and ill-will, how do you --
9 again --
10 MR. PIRILA: Well, let me take a different
11 approach here.
12 At the very beginning of this project, the
13 gym, it was our understanding we could use it,
14 just as it always had been used by Thomson
15 Township. That did not constitute a change in 16 use. Our designer, and we only had a designer
17 for the first year or year-and-a-half had argued
18 for GREB, that's the Guidelines for the
19 Rehabilitation of Existing Buildings, and he
20 argued for that entire building, but the phases
21 were gonna be that gym, then our residence,
22 and then a lower apartment.
23 Defendant Gulland said GREB did not apply,
24 and that because there was a change in
25 ownership, this is a change in use, and
26 suddenly now it was subject to the same terms
27 as the new building. That meant taking it all
28 down pretty much, adding existing, you know,
29 energy code requirements, everything, the gym
30 became unusable. Our designer consistently
1 argued that, no, it should be GREB. That's a
2 relaxed building code, so we went from one cost
3 and one time period from you could move in
4 there, to one that was just more outrageously
5 more expensive and much more time consuming.
6 THE COURT: But is that unusual for a
7 developer to run into some anticipated cost or
8 interpretations of either city code or building
9 code or the State code?
10 MR. PIRILA: It would be in this case -- we're
11 talking about an existing building versus a new
12 construction. You're driving up --
13 THE COURT: No, no, no. I'm talking about
14 let's say Duluth, Dr. Reinsrud (sic) -- I'm trying
15 to think of his name, Riesgraff (sic.) , or
16 whoever it is, there's a number of developers
17 lets just say in the State of Minnesota. In fact,
18 there's one right now redoing the jail in St.
19 Louis County which has asbestos who might
20 run into something that is or not structurally a
21 retaining wall, or a structural wall, or a load
22 bearing wall, or certain chemicals that may or
23 may not be there, somebody thinks it could
24 stay, somebody thinks it can't. That itself, that
25 phenomena the processing and development of
26 older property, that's not unusual, is it?
27 MR. PIRILA: Well, we're not arguing that
28 there are additional costs. It generally runs 20
29 to 40 percent over.
30 THE COURT: No, no, we got to still get to
1 somehow this malice, because there is immunity
2 that's normally applicable in these cases.
3 There's got to be some cognizable claim under a
4 state law or rule or some tort.
5 MR. PIRILA: I would like to make a prima
6 facie showing of Minnesota Department of
7 Laborers investigation and the censuring of the
8 John Gulland.
9 THE COURT: But that's not a cause of
10 action, okay? That is not a cause of action.
11 MR. PIRILA: Well, he was made aware --
12 see GREB is a mandatory requirement, once
13 requested. You can only change code at the
14 request of the owners or designer for code, other
15 than GREB, once it's been requested. There's
16 been no request.
17 THE COURT: Okay. Let's not go into the
18 details of your disagreeing with them. Let's go
19 through the basis of a lawsuit, a claim, okay?
20 For example, let's assume that I get a traffic
21 ticket from somebody. An officer in Moose Lake
22 gives me a traffic ticket. I find out a week later
23 that the city council is having the chief and that
24 officer come in to review because that officer
25 has been giving everybody tickets, whether it's
26 three to eight miles over the speed limit and the
27 city council says stop that. This is a rural area,
28 we have good citizens, that's not the way we
29 want to treat them, and we're going to put a
30 letter of reprimand in your personnel file.
1 I find out about, A, that doesn't change
2 anything. I can't sue the officer and I can't even
3 probably come to court and say, well, I don't
4 want my speeding ticket.
5 MR. PIRILA: Part of these findings are
6 there were no written orders and written orders
7 are mandatory because then you know exactly
8 what you're striving for. We're striving to move
9 into our residence. Mr. Gulland and Mr. Grace,
10 it wasn't Mr. Grace's responsibility and it was
11 Mr. Gulland's to put in writing, so we knew
12 what our object was, what we needed to finish
13 to get in. It was always verbal, and as soon as
14 we met those verbal requirements, and this
15 happened several times, they changed.
16 THE COURT: Well, what was the capacity
17 that Mr. Gulland was doing this, how was he
18 acting? He wasn't the architect right?
19 MR. PIRILA: He was the building inspector.
20 He determined --
21 THE COURT: And so let's get back to what
22 Counsel is saying. If they're acting not as an
23 individual citizen, it's not some neighbor you
24 don't like and they come over and decide to go
25 in your house, or it's not a separate person
26 you've contracted with, via your architect. They
27 were supposed to do something and they didn't
28 and they violated the contract, because that's a
29 cause of action, they're there in that capacity, so
30 she is saying we have immunity, we have a
1 number of types of immunity because they're
2 not acting as an individual, they're acting in
3 their official capacity.
4 See, I couldn't turn around and sue the police
5 officer individually, either, because he seems to
6 be picking on people, or something, or even if he
7 gave me a ticket and he shouldn't have, under
8 the policies, it should be clearly written you have
9 to be five miles over, I can't sue him for return of
10 my fine because he's acting in his official
11 capacity.
12 Otherwise, the theory, by the way, the law is
13 that state officials, county officials, township
14 officials, city officials, none of them would go
15 about and do their things if they were worried
16 that every time they did something, let's say
17 our county zoning officer gets a lot of people
18 mad if he had to worry he was going to get sued
19 every time, and he can have an appeal process
20 through the board of adjustment stuff. It
21 doesn't mean that they're without recourse. It's
22 just that in terms of the tort action, what they
23 do usually is enjoy a cloak of immunity.
24 MS. FRANCETTE: My question would be
25 how far can immunity extend because he was
26 asked many times by us and by our designer to
27 entertain the GREB, which should have been
28 applied to start with, and he would not do it
29 and would not give us a solid reason why he
30 wouldn't do it. So in the end that costs us more.
1 THE COURT: Usually the immunity
2 applies, so long as they're acting under the color
3 of their official capacity. An example of when it
4 would end, let's assume that this building
5 inspector was there off and on for different
6 periods of time, coming with the architect
7 sometimes, coming with Mr. Grace sometimes,
8 but they would come to the facility, and let's
9 assume that one night he had been out on his
10 own and after a meal decided to go up there and
11 he saw this young lady inside and so he invited
12 himself in and explained that he knows this
13 place well, et cetera, and he ends up sexually
14 abusing her and now is being sued, both
15 criminally and/ or civilly, and he said, well, I
16 have immunity. My attorney found this
17 doctrine of immunity. Well, he's not really
18 acting in his capacity as the building inspector
19 and so immunity does have its limits. But the
20 main thing you've got to start with is showing
21 that they are doing something so outrageous or
22 something so unusual that they really don't
23 have that immunity.
24 So what he did or didn't do and what you
25 agree or disagree with, or the Department of
26 Labor does or does not agree with, it doesn't
27 take away how he was doing it in his capacity
28 as the building inspector, does it?
29 MS. FRANCETTE: I would disagree on the
30 basis that in his capacity as a building
1 inspector, he's to use that applicable codes and
2 he chose to expand and move beyond those codes
3 into codes that cost us far more money and time
4 than we ever anticipated, and regardless of us
5 saying, hey, pull back here a second and our
6 designer saying the same thing, you know,
7 saying, you know, you're making these people go
8 farther than they need to, go at this time, why
9 don't you look at this? This is what we should be
10 applying, let's get them into this building, let's 11 get this thing going and he refused and would
12 not give us a reason why. There is no code
13 basis for it.
14 THE COURT: See, what you keep saying is
15 you don't like what he did. I don't blame you if
16 it cost you a lot of money. That's different than
17 saying what he did was not as the building code
18 inspector. In fact, in this case, if he wasn't
19 acting in that capacity, you wouldn't have
20 followed it.
21 MR. PIRILA: Well, he does not have
22 immunity for not following the ministerial and
23 operational day-to-day duties of his job. The on-
24 site inspection card, nothing. It's supposed to
25 say what we're supposed to do, what we have
26 accomplished, what he inspected, and likewise,
27 he's supposed to have an inspection record in
28 Thomson Township for every inspection.
29 There's none. There is none on record. He
30 didn't legitimately make an inspection because
1 he didn't have a precise reason for going there,
2 what he was inspecting. This is the same as just 3 freely roaming through the building, picking up
4 any object he wants.
5 The same goes for Jeffrey Juntunen. There
6 is no record in the Thomson Township Fire
7 Department records that are showing up. The
8 day they showed up, they knew we both were at
9 work. There was no cars in the parking lot, the
10 doors were locked, they had every reasonable
11 expectation of knowing, nobody was there. How
12 did they get in? And what's the purpose of
13 getting in when they know we both work as post
14 masters in the local area? They could have
15 simply called us, requested entry. We have
16 never denied entry for an inspection, yet they
17 chose not to. They picked a time of their
18 choosing, knowing we're not there, to go in, and
19 as far as seeing -- it's a vacant building, as you
20 can see --
21 THE COURT: But that's a conclusion that
22 could be the opposite way, and that is that
23 during the normal hours that they inspect and
24 when they come in, they don't know what
25 they're going to find and where, unless they
26 inspect, and by the term inspection, they do
27 look around the building, but they didn't,
28 during certain times --
29 MR. PIRILA: Even the criminal --
30 THE COURT: -- but during certain times
1 that you may or may not have been there.
2 MR. PIRILA: We had our personal effects all 3 there. A criminal even has the right to a search
4 warrant and a limited search to those certain
5 areas. When we were deciding on a permit for
6 one phase and another part, it's inapplicable,
7 that section, they have violated our rights and
8 not to make even the effort. There are many
9 statutes about consent to entry.
10 THE COURT: To articulate the tort or the
11 statutory claim because their motions say that
12 there either is, none that's recognized by law, or 13 if there is, a basis that you label or name, it is
14 protected or wouldn't apply to them because of
15 the official immunity, the doctrine of official
16 immunity.
17 MR. PIRILA: Well, getting back to this
18 GREB thing, when it becomes known and they
19 acknowledge that GREB exists and they're
20 aware of it and they choose selectively not to
21 follow its rules and instead follow the rules that
22 are far more difficult to us, knowing that they
23 are wrong and --
24 THE COURT: They know -- but you get all
25 of these things in your mind. If they knew they
26 were wrong, they , with malice, chose to do this
27 anyway.
28 MR. PIRILA: I'll support that. Now we have
29 Duane Grace who is saying after the second
30 permit was done and the Minnesota
31 Department of Labor began its investigation, he
1 first learned of GREB. GREB has been around
2 since the year 2000. He's acknowledged and he
3 first became aware of it in 2009, February of
4 2009.
5 However, before the fist permit was even
6 issued in July of 2007, he was specifically citing
7 the 2007 Minnesota Building Code and GREB
8 and he's acknowledging GREB in two or three
9 spots prior to the end that they will apply, but
10 no place within any of the reviews was GREB
11 applied. In fact, we had gone into many
12 technically and feasible areas, such as a draft
13 stop that I spent two months straightening
14 piece by piece of wood up in the attic to build up
15 to a crawl space that was impossible to insulate
16 as they asked. They had exchanged emails
17 about the exceptions that apply for existing
18 buildings, but they wouldn't allow them. They
19 made every aspect so difficult, they could have
20 set a drawing, you know, just a slight one. I
21 had to redraw -- pay all expenses, and send it to
22 Texas because Duane Grace was residing in
23 Texas while John is sitting right here. John
24 was cited because Duane Grace is actually
25 effectively acting as building inspector, which is
26 illegal. He was doing the whole thing and the
27 Department of Labor said, you know, he's not
28 supposed to have administrative control. John
29 Dahlin is supposed to have them. When you're
30 missing all the orders, how can you possibly
1 have any expectation of finishing your product if
2 you don't have the written orders, and as soon as
3 you get these verbal orders, you fill them, we've
4 written them down, we do them all, we think
5 we're moving in. No, no, I want you to do this
6 now. Will you do that? John: No, nope. I'll need
7 you to do this now, and that's the way it went for
8 two years.
9 We asked, and we wrote letters to Thomson
10 Township asking for them to intervene. All
11 they did, you know, attorney Pritchett and the
12 Thomson Township who defend them. They
13 didn't even look into our request for removing 14 him or into the allegations we were making
15 about these entries being made without our
16 consent. Minimal. You know, you can't finish a
17 project without written orders or verbal orders,
18 but his job was putting them in writing so we
19 were all on the same page. When he doesn't 21
20 have them in the Thomson Township files, he 21 doesn't have an on-site inspection card in our
22 building, he hasn't given us written orders. He
23 is abusing his authority because he is allowed
24 to do anything, and he did. You know, even
25 entering the building, there's rules about
26 entering a building. Call us, call us just once.
27 Show us that you made the effort to have us
28 allow you into the building. We will schedule a
29 time. At the time when he was coming in, I was
30 moving my office in Barnum physically and I
31 couldn't make it. They didn't care. They were
1 going and I had to get the Minnesota
2 Department of Labor to intervene. We felt it was
3 retaliation, and I think they felt it was, too. He
4 called and had them discontinue their visits,
5 forcing us out of our jobs.
6 John Gulland was actually leaving his
7 Duluth job early to go to our building, forcing us
8 out of our jobs when we had coverage and that
9 was not easy to get. We are in small offices with
10 one person as a possible backup and they opted
11 to work another job. That is not reasonable.
12 You know, we made every effort to get to the
13 right codes and our designer had it, and then in
14 discovery they're trying to say our architect
15 requested aversion. This is, by law, he would
16 have to request aversion, other that GREB, an
17 alternative method or code and be approved by
18 the building inspector for that change. He
19 wasn't even on board for the first phase, first of
20 all, and only later into part of the second phase
21 he had made no such request. There's no
22 request on record because none was made,
23 neither is there a response from the building
24 inspector saying, yep, I'll accept this change and
25 this is acceptable. No, because he stood from
26 beginning to end against the relaxed GREB
27 rules. He didn't care what the rule said. I
28 made him mad because I questioned a lot of
29 things that went on. Why couldn't I use the
30 gym like they had? Our designer made the
1 same argument. Why? This is not a change in
2 use. There is no such thing as a change in use --
3 is because a change in ownership. It doesn't
4 exist. He made that up. That was how he kept
5 us from renting the gym. We couldn't compete.
6 You know, we are class one. They had a
7 breach of duty to us. We paid building permit
8 fees based on a good faith effort of the building
9 inspector, the plan reviewer, and Thomson
10 Township to follow the rules of the statute. He
11 has a ton of discretion. He can make us do a lot
12 of things, and he did. I'm not going to sit here
13 and argue today because he had the discretion
14 do it. He could ask for a structural engineer.
15 We had to get one. He asked me to fire code or
16 caulk areas outside the code. That's within his
17 discretion, I did it. We had many, many things
18 we're not arguing about here today because
19 they're within his discretion, but it's not within
20 his discretion to not follow the basic rules of his
21 job. Put it in writing, follow the code he knows
22 to be right.
23 Duane Grace was added as an insurance
24 policy to get the codes right. They didn't review
25 each other's work. They just took each other for
26 granted. They didn't care if it was right or
27 wrong, this is what we're gonna do, and how
28 dare us ask questions? We can foot the bill for
29 this, but don't ask where the planner review
30 fees come from, don't ask questions or we're
1 gonna punish you, and they did, and Thomson
2 Township stood right behind them. They could
3 have removed John, they could have looked into
4 it. No. They sent us threatening letters. We're
5 gonna give you stuff for court if you don't do this,
6 you're gonna get this and you're gonna get that,
7 and then we get followed up with , which Jeffrey
8 Juntunen deciding, you know, the rules of an
9 open field policy that they argued are ridiculous
10 in this case. You have the right, we don't know
11 what door he went to, anything out in open
12 field, yeah, sure you can see it. No one is
13 arguing that. There's no claim there, but
14 they're inside a building here, no matter what
15 door we went to, it's a matter of what he's seen.
16 Nothing was an emergency basis requiring
17 immediate access to our personal effects in a
18 building. Once it stopped them from going,
19 taking, doing whatever, the purpose of these
20 meetings were to have us attend, discuss
21 deficiencies and go over exactly what we needed
22 to do. We should have been there. We should
23 have had the opportunity to be there and ask
24 questions, especially when Jeff Juntunen is
25 alone. He's alone. He's not with anybody. That
26 was on his own accord, and, John, this is a
27 question I still don't have and answer for.
28 When you leave your job in Duluth at 3:00
29 o'clock with the architect when neither of you
30 have keys with the exception of getting in that
1 building and there's no cars on site, and that
2 place is locked up, sealed like a drum, how did
3 you get in? How did you perform your
4 inspection? You had to know you were getting
5 in. So how do you do that without having a key? 6 You're gonna kick the door in? I mean, you're
7 not --
8 THE COURT: Is that what you found, a door --
9 did you find property damage?
10 MR. PIRILA: No, which tells me he got in
11 through some easier way, but he had the
12 expectation, as Jeff Juntunen did, they're
13 getting in that building. Nobody is there. How
14 do you that when it's lock? They don't have a
15 key policy. Not one of them can tell us where a
16 key went to or they were checked back in or
17 checked out. They simply don't have anything. 18 It just disturbs me that anybody can walk in to
19 my file. It took me five days to review my own
20 file, but there's no record of who logged into it
21 and who didn't. I mean is that accountability? 22 They could have went in there and filtered it. I
23 don't know. They don't know because they don't
24 know who went in there. Why does it take five
25 days to review your own file? I can't get
26 building permit information from them because
27 they're not saying it's not public, they're not
28 saying that it isn't. They don't have it. All the
29 information just dries up.
30 Now, David Pritchett, when I started asking 31 questions by sending letters to different people
1 in the community, interfered and said -- you
2 know, he sent me a letter that that was improper
3 and inappropriate, that I couldn't do that, and I
4 said I asked for this information through the
5 Thomson Township and they'll.provide it to us.
6 They never provided slut [squat].
7 Now, in affect, you know, he's stopping me
8 from a legal inquiry and pretty much pressuring
9 -- it's a small community. People being told by 10 their fire chief or their attorney, whatever, that
11 they don't have to respond, yeah, it's -- they
12 don't want to respond. Of course they don't
13 want to. We know now we have to go to
14 depositions for all of them because the pressure
15 is there. Nobody is gonna answer willingly.
16 You know, he offers to give this and nothing.
17 THE COURT: Let's get back to the parties,
18 for example, Thomson Township, where the fire
19 department --the fire department and legal
20 entity that can be sued and can sue?
21 MR. PIRILA: They can, because they are a
22 voluntary relief organization, and as such the
23 State Administrator's [Attorney's] Office
24 determines that they are a separate entity.
25 Now, if they are not a voluntary organization,
26 then I am wrong, but they were incorporate in
27 1973 and the records that I was able to obtain
28 so they are a voluntary relief association and
29 thus a separate immunity [entity].
30 THE COURT: And do they enjoy immunites
1 that have been discussed by counsel?
2 MR. PIRILA: In absence of malice, they
3 would.
4 THE COURT: So this department itself is
5 comprised of a number of volunteers?
6 MR. PIRILA: Yes.
7 THE COURT: And what did they do to bring
8 about some kind of a tort?
9 MR. PIRILA: Our large argument there is
10 just the actions of Jeffrey Juntunen. We have
11 no problems with the volunteer fire department.
12 THE COURT: Okay. So you have no cause
13 of action against the Thomson Township Fire
14 Department?
15 MR. PIRILA: Just to the fact that Jeffrey
16 Juntunen runs them and their records and
17 whatever the intent of these fire orders to let
18 the building burn. You know, he has the right
19 to make the fire plans. We're not disputing
20 that. The means by which he entered the
21 building and his purpose of such orders --
22 THE COURT: Well, let's take my
23 hypothetical and change it. Instead of a police 24 officer for the department of Moose Lake, it was
25 the captain or the chief of police himself and he
26 did something wrong, and so I want to bring a
27 1983 action against him and I decide I'm going 28 to name six other officers. Why? Well, because
29 they work for the same police department.
30 They take their order from him. Does that
31 make sense?
1 MR. PIRILA: Yeah. We have pondered this
2 one a lot. My only concern is I would like to hold
3 Jeffrey Juntunen accountable under --
4 THE COURT: I understand you would.
5 MR. PIRILA: But the fire department itself,
6 no. If we could release one and it's not subject to
7 vicarious immunity where he gets it because
8 they did, then no. We would not like to involve
9 the fire department if we can retain our suit
10 against Jeffrey Juntunen for trespass.
11 THE COURT: Well, one doesn't imply the
12 other. I'm just say, if you can't show me any
13 basis at all for the fire department, other than
14 Mr. Juntunen, the chief, then I thing that's kind
15 of dry, that they be dismissed.
16 MR. PIRILA: We're good with dismissing
17 them.
18 THE COURT: All right. To I guess maybe
19 focus the right response a little bit more, part of
20 what is the general applicable law is there are
21 certain things that may constitute a violation of
22 somebody's -- a rule or regulation or a state law
23 by somebody. That doesn't necessarily give a
24 private cause of action against somebody, so in 25 the case he cited, it had to do with, I believe
26 there was a multi-use apartment building that
27 caught fire, or later, they were suing the
28 inspectors and the city or something for breach
29 of the fire code.. But let's assume that
30 somebody was a hairdresser and I went to the
1 hairdresser and it turned out the hairdresser's 1
2 license to practice in Minnesota hadn't been
3 renewed on time. It had been expired for the last 4 two months and they had to pay not only the
5 renewal fee, but a penalty fee, you know, another
6 $100. Does that give me a lawsuit against that
7 person?
8 MR. PIRILA: If you're looking for a cause of
9 action, and I believe it's very clear, this is gross
10 negligence at the very minimum, the very
11 minimum.
12 THE COURT: But is it something that is not
13 covered by the types of immunity, that the
14 municipalities of or the governmental units
15 enjoy?
16 MR. PIRILA: The immunity doesn't exist if
17 malice is found.
18 THE COURT: We're not talking about
19 malice. You mentioned some negligence, you
20 mentioned application of code that shouldn't
21 have been applied, et cetera, discretion that
22 they did have and meeting that, but then
23 apparently, Mr. Gulland was not acting within
24 his discretion. There's a difference between
25 right and -- being correct or incorrect on
26 something versus acting within its discretion.
27 If the county highway department comes out
28 and they place a monument because of some
29 notes from a survey and it turns out the county
30 surveyor had reversed numbers, and instead of
1 34 feet he had 43 feet, the highway engineer
2 placed the marker there, do I have a private
3 cause of action against him because he's acting
4 negatively or somehow I impute malice. You can
5 say the word malice, but it doesn't necessarily
6 establish it.
7 MS. FRANCETTE: Well, I realize that at
8 one point one of the attorneys said do you know
9 what they were thinking? Well, you can't
10 possibly know if someone has malicious
11 thinking, so I don't know how we would prove
12 that. But the fact that there seemed to be a
13 collected personality of not answering us when
14 we would ask why can't we use the proper code?
15 Why can't the township do something about the
16 building inspector? Why are people entering
17 our building without our knowledge, and
18 expecting they can do so, and collectively, we
19 get stonewalled all the time. It's hard to
20 imagine that there isn't some kind of negative 21 intent behind that. I don't know if we have to 22 go to the dictionary and look up malicious and
23 define that exactly, but it definitely was a
24 negative intent. I don't know how else you can
25 perceive it, if it happened to you or anyone esle
26 here when you repeatedly asked for people who
27 served you for help and they don't, how else can
28 you feel?
29 MR. PIRILA: Well, there is a case --
30 THE COURT: Well, they may have
31 disagreed with you. I don't know if they say or
1 acknowledge that they didn't.
2 MR. PIRILA: There is specific case law that
3 does show, like in Camara (sic) vs. Municipal
4 Court, San Francisco, that they say in response
5 to the inspector's, probable cause upon the basis
6 to which warrants are issued for area code
7 enforcement inspections is not dependent on
8 inspector's belief that a particular dwelling
9 violates a code, but on the reasonableness of the
10 enforcement agency's appraisal of conditions in
11 the area of a whole -- or as a holder.
12 THE COURT: Right. And what that
13 basically means is if there is a block of homes
14 that have deteriorated and they do some
15 inspections and find bare houses, stripped
16 wires, cracked houses, or whatever, and they
17 want to inspect some others in that whole row,
18 and they go to get an administrative warrant
19 and when they inspect the second to the last
20 home down there, somebody challenges that
21 and says, look, you had some kind of a warrant
22 and the clear basis to ask for a warrant on
23 house number one. We're house number seven.
24 All I'm saying is they had a general basis for
25 this whole area of inspection. There's a little
26 more latitude than a criminal action against a
27 police --
28 MR. PIRILA: But what it's also saying is
29 that search warrants, which require non-
1 emergency situations, should be sent only after 1 2 entry is refused. We've never refused entry.
3 THE COURT: Yes, but this is not requesting
4 an administrative search warrant. They haven't
5 come us and applied for a warrant.
6 MR. PIRILA: If it's gonna be interpreted
7 this way, what's to stop them from breaking into
8 any home that has any kind of building permit
9 pending --
10 THE COURT: No, I'm not interpreting. I'm
11 just telling you, read that case law that you just
12 quoted, what it says.
13 MR. PIRILA: Well, it's saying here, even
14 warrantless administrative searches. What are
15 we saying? Administrative? I consider this an
16 administrative search.
17 THE COURT: I t means you don't need to
18 get a warrant at all if the person consents and
19 let's you in, that's true in criminal law as well
20 as on civil or administrative warrants, but the
21 first part you read, if you read it again.
22 MR. PIRILA: Well, it's also saying
23 warrantless administrative searches cannot be
24 justified on the grounds that they make
25 minimal demands on occupants.
26 I mean, there's plenty of law saying that we
27 can't hold regular citizens to higher standards
28 than criminals. Criminals have a right to
29 warrant.
30 THE COURT: You're not reading that first
1 part of it. It's true, if there's no reason at all to
2 get a warrant -- you can't later say, well, you can 3 give us a warrant because it's not a big deal, it's
4 not -- it's minimal intrusions. That true, we
5 don't operate that way, but that's not what that's
6 saying.
7 MR. PIRILA: You have reviewed our claim
8 under the 4th, 5th, 14th Amendments, section
9 1983 and section 1985? I mean, those are also
10 legitimate claims in this -- in this case.
11 THE COURT: Well, they definitely were
12 acting under color of law. The issues whether
13 they deprived you -- they do so to deprive you of
14 your constitutional rights.
15 MR. PIRILA: The sanctity of one's home is a
16 liberty that all U.S. citizens are supposed to
17 have, because our personal effects were in .
18 there, and we never felt very comfortable doing
19 anything after these invasions in our home took
20 place. I mean, we deserved to a least have some
21 consent sought from us. And in that, the
22 absence of that, the greatest society is at harm
23 because what's to stop this from going on a
24 larger and larger scale? I mean, the boldness in
25 which they did this and then have reports sent
26 to our home, accusing us of a building code
27 violation, the fire code violation, they could
28 have only gained through the [il]legal entry and
29 it is a [il]legal entry, to me, if you use the key to
30 get into a building.
1 THE COURT: They had no knowledge of the
2 conditions of this building as the whole thing
3 progressed?
4 MR. PIRILA: Here and there. Jeff Juntunen
5 didn't. He never entered the building. He
6 shouldn't have entered until --
7 THE COURT: In his life? He'd never been
8 there when the township had it, he had never
9 been there preliminarily or an --
10 MR. PIRILA: Inside after we bought it, it
11 was intact when we bought it. Afterwards, no.
12 The slab pile that he refers to was outside. He
13 could have left a note. We could have discussed
14 that. That didn't develop overnight, and the
15 door he entered from that side is a solid door
16 with no view of the inside and the laws are very
17 clear. He didn't look through the window. If he
18 had looked through a window, he would have
19 seen nothing. I mean, that's a violation of law.
20 THE COURT: All right.
21 Counsel, any reply?
22 MS. ANGOLKAR: Nothing further, Your
23 Honor, unless you have any questions?
24 THE COURT: All right. Anything further in
25 regards to Mr. Grace?
26 MR. MCNAMARA: Your Honor, I have
27 nothing further, either, unless Your Honor has
28 any questions?
29 THE COURT: All right. Well, I will take the
1 matter under advisement. Obviously there's
2 volumes of material, but there's also volumes of
3 pages on just the reply memorandum so you'll be
4 hearing from the Court, but I can't tell you
5 exactly when.
6 Since these are dispositive motions, I won't
7 go forward with the scheduling hearing until or
8 unless we know the outcome of the motions, all
9 right?
10 MS. ANGOLKAR: Your Honor, I haven't
11 filed a motion to the state of discovery, but
12 would you prefer that that be filed, or is that
13 something that you would --
14 THE COURT: No, I don't think there's any
15 further discovery that would be going forward
16 at this time, until the motions are ruled on, just
17 based on the records.
18
19 MS. ANGOLKAR: Thank you.
20 THE COURT: All right.
21
22 (Adjourned at 1:33 p.m.)
***
1 REPORTER'S CERTIFICATE
2
3 i, kevin R. Hamre, do hereby certify that I
4 am an Official Court Reporter in the Sixth
5 Judicial District of the State of Minnesota; that
6 as such, I did by means of stenograph record the
7 proceedings of the above-entitled action; that I
8 did thereafter transcribe into typewriting the
9 foregoing transcrip from my notes taken in
10 Carlton County, State of Minnesota, on October
11 14, 2010; and that the foregoing transcript,
12 consisting of 41 pages, constitutes a full, true,
13 and correct transcript of all the proceedings of
14 such hearing.
15
16
17 Witness my hand and seal this 2nd day of
18 February, 2011.
19
20
21 s/Kevin R. Hamre
22 Kevin R. Hamre, RPR
23 Official Court Reporter
24 Carlton, Minnesota 55718
25
26 My commission expires
27 September 29, 2011
APPENDIX I
DISCOVERY
_____________ _
09-CV-10-934
_____________ _
TABLE OF CONTENTS
Page
DEFENDANTS THOMSON TOWNSHIP, THOMSON TOWNSHIP FIRE DEPARTMENT, JOHN GULLAND AND JEFFREY JUNTUNEN'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR ADMISSIONS (REVISED)………………322-a
THOMSON TOWNSHIP FIRE DEPARTMENT'S ANSWERS TO INTERROGATORIES………335-a
State of Minnesota District Court
County of Carlton
Sixth Judicial District
Court File No: 69DU-CV-10-801
Marvin Pirila & Gail Francette,
Plaintiffs,
vs.
City of Duluth, Thomson Township,
Thomson Township Fire Department,
John Gulland, Duane Grace, Jeffrey Juntunen
Defendants.
________________________________________________
DEFENDANTS THOMSON TOWNSHIP, THOMSON TOWNSHIP FIRE DEPARTMENT, JOHN GULLAND AND JEFFREY JUNTUNEN'S RESPONSE TO PLAINTIFFS' FIRST REQUEST FOR ADMISSIONS (REVISED)
________________________________________________
TO: Plaintiffs Marvin Pirila and Gail Francette, pro se, 1 N Cloquet Rd. W., Esko, MN 55733:
Defendants Thomson Township, Thomson Township Fire Department, John Gulland, and Jeffrey Juntunen, for their Responses to Plaintiffs' First Request for Admissions (Revised), state as follows:
5. Jeffrey Juntunen is the current fire chief of Thomson Township.
RESPONSE: Admit
6. Duane Grace was a hired contractor by Thomson Township.
RESPONSE: Admit
7. The review fees for Duane Grace was passed onto plaintiffs.
RESPONSE: Admit
8. Marvin Bodie is a clerk for Thomson Township.
RESPONSE: Deny
9. Marvin Bodie was a clerk for Thomson Township.
RESPONSE: Deny
19. Thomson Township officials admit that “no trespassing” and “private property” signs are displayed throughout plaintiffs’ property.
RESPONSE: Deny
23. Thomson Township admits it has the obligation to oversee the actions of its employees and contractors.
RESPONSE: Objection, this Request calls for a legal conclusion. Without waiving said objection, deny.
24. Thomson Township admits that it voluntarily provides access to public data upon reasonable requests.
RESPONSE: Objection to the form of the Request for Admission. This request is vague, overly broad and confusing. Without waiving said objection, the Township provides public information it possesses.
26. Mr. Gulland admits he has overseen numerous GREB projects during his employment with the city of Duluth.
RESPONSE: Objection to the form of the request for admission. This request is vague, overly broad and confusing. Plaintiffs do not place a quantity on "numerous." Without waiving said objection, admit Mr. Gulland has overseen GREB projects during his employment with the city of Duluth.
28. Mr. Gulland admits he used his old key to access plaintiffs property.
RESPONSE: Deny
29. Mr. Gulland admits he was confronted by plaintiff Gail Francette about illegally entering the building after finding him already inside, behind a locked door, for a scheduled meeting.
RESPONSE: Deny
30. Mr. Juntunen admits he used his old key to access plaintiffs property.
RESPONSE: Deny
31. Mr. Juntunen admits contractors found him inside the locked building when they arrived.
RESPONSE: Deny
32. Mr. Gulland admits he oversaw GREB projects in Thomson Township
RESPONSE: Deny
33. Mr. Gulland admits to visits without consent.
RESPONSE: Deny
34. Mr. Gulland admits that Marvin Pirila was always acting as his own general contractor.
RESPONSE: After reasonable inquiry, this answering party does not have knowledge to admit or deny.
35. Thomson Township acknowledges Mr. Gulland is a building codes administrator in Duluth MN.
RESPONSE: Admit
36. Thomson Township admits the following groups were previous occupants of the Old Washington School: AFLAC (204); AA (204); Aldridge (Gym); Brownies; CC Academy (Gym); Carlton County Retired Teachers Senior Room; Cloquet Women of Today; Daisy Scouts (205); Disabled American Veterans; ECDC Board Room; 4-H (204); Historical Society (Senior Room); Homemakers Group (Senior Room); Home School (Gym); Iisakka (Gym); Ladies of Kajeva (106); Lask. Festival Finlandia (Gym); Lions (Senior Room); North Country Ride (106); Pinewood (Gym); Rummage Sales (Gym); Saddle Club (204); St. Paul’s (Gym); Scouts (205); TOPS (106); W.C.C. Council (106); and Wolves (Gym).
RESPONSE: Deny
37. Thomson Township admits many of these same renters are now renting space at their new location.
RESPONSE: Admit Historical Society, Homemakers Group, Ladies of Kaleva, North Country Ride, Rummage Sales, TOPS, and 4-H moved to the new location. Deny remainder.
38. Thomson Township admits that they have no gym facilities at their new location.
RESPONSE: Admit
42. John Gulland admits he accompanied Paul Sandstrom on a plumbing inspection.
RESPONSE: Admit John Gulland accompanied Paul Sandstrom on a plumbing inspection at the Washington Community Center approximately August 1, 2008. Admit Stat Plumbing Inspector Brad Jensen and plumbing contractor Leroy Linstrom of North Star Plumbing were also present.
43. John Gulland admits he did not seek consent of plaintiffs to join Paul Sandstrom on an inspection.
RESPONSE: Admit Mr. Sandstrom scheduled the inspection and requested Mr. Gulland attend. Deny remainder.
45. John Gulland admits he made entries without consent onto plaintiff’s property.
RESPONSE: Deny
46. Jeffrey Juntunen admits he made entries without consent into plaintiff’s property.
RESPONSE: Admit Jeffrey Juntunen entered Plaintiffs' property to enforce fire code regarding large pile of debris.
47. John Gulland admits did not use GREB guidelines for any portion of plaintiff’s project.
RESPONSE: Admit John Gulland did not use GREB because Plaintiffs' architect did not select GREB. Admit Mr. Adams elected to use the 2007 Minnesota State Building Code, IBC, and amendments for this project.
48. John Gulland admits GREB guidelines applied.
RESPONSE: Deny
49. John Gulland admits he treated plaintiff’s building as a new building.
RESPONSE: Deny
50. John Gulland admits the building codes he demanded were those for new buildings.
RESPONSE: Deny
51. John Gulland admits he knows the difference between a new building and an existing building.
RESPONSE: Admit
52. John Gulland admits GREB rules are followed for an existing building.
RESPONSE: Admit
53. John Gulland admits he used GREB rules for Pizza Pies at the corner of Canosia Rd and E Highway 61.
RESPONSE: After reasonable inquiry, Mr. Gulland is without information to admit or deny.
54. John Gulland admits he retaliated against plaintiffs for MN DOLI investigation.
RESPONSE: Deny
55. John Gulland admits a stop work order issued to plaintiffs was based on trespass.
RESPONSE: Deny
56. John Gulland admits the wrong building codes were used.
RESPONSE: Deny
57. John Gulland admits that he failed to follow the rules of Existing Buildings ([“EB]”) in the IBC (2006).
RESPONSE: Deny
58. John Gulland admits he failed to follow Chapter 1322 of the MSBC – Residential Energy Code that addresses exceptions for existing buildings
RESPONSE: Deny
64. Thomson Township admits it failed to answer information requests.
RESPONSE: Deny
65. Thomson Township admits it never disciplined John Gulland.
RESPONSE: Admit
66. Thomson Township Fire Department admits it never disciplined Jeffrey Juntunen
RESPONSE: Admit
68. Jeffrey Juntunen admits he made no efforts to seek consent of plaintiffs prior to entering premises.
RESPONSE: Deny
69. Jeffrey Juntunen admits he made no effort to contact plaintiffs following unauthorized visits.
RESPONSE: Deny
70. Jeffrey Juntunen admits he left no notice of his unauthorized visits.
RESPONSE: Deny
72. Jeffrey Juntunen admits he never discussed fire fighting plans with plaintiffs.
RESPONSE: Deny
74. John Gulland admits he did not respond to a single email.
RESPONSE: Deny
75. John Gulland admits he did not respond to multiple requests to put orders in writing.
RESPONSE: Deny
76. John Gulland admits that forcing plaintiffs out of work to make “his” scheduled meetings were not reasonable, nor allowable under the statute.
RESPONSE: Objection. This request calls for a legal conclusion. Objection to the form of the request for admission. This request is vague, overly broad and confusing. Without waiving said objection, deny.
81. Thomson Township admits that plaintiff’s emails were missing from official record.
Objection to the form of the request for admission. This request is vague, overly broad and confusing. Without waiving said objection, deny.
82. Thomson Township admits that John Gulland never returned his key for plaintiff’s property once it was sold.
RESPONSE: Deny
83. Thomson Township Fire Department admits that Jeffrey Juntunen never returned his key for plaintiff’s property once it was sold.
RESPONSE: Deny
84. Thomson Township admits that other people never returned their keys for plaintiff’s property once it was sold.
RESPONSE: Deny
85. Thomson Township admits that it can’t account for all of the keys that allowed entry to the Old Washington School.
RESPONSE: Deny
87. John Gulland admits that he is considered an expert in the area of Minnesota Building Codes and Rules.
RESPONSE: Admit
94. John Gulland admits he waived his right to a formal hearing to challenge the MN DOLI findings.
RESPONSE: Admit
101. John Gulland admits the MN DOLI, as the state building code authority, rightfully determines what is and isn’t considered appropriate conduct by building inspectors.
RESPONSE: Objection. This request calls for a legal conclusion. Notwithstanding said objection, deny.
102. John Gulland admits he failed to issue correction orders in writing
RESPONSE: Deny
103. John Gulland admits that Duane Grace dictated code compliance
RESPONSE: Deny
116. Marvin Bodie, Thomson Township clerk, admits he took notes for the February 12, 2008 meeting between Marvin Pirila, Gail Francette, Greg Hallback, Duane Grace, and John Gulland.
RESPONSE: Objection. This request is directed at an individual who is not a party to this litigation.
117. Mr. Bodie admits he included his own words, without the benefit of discussion at the 2/12/08 meeting, in the draft of the notes
RESPONSE: Objection. This request is directed at an individual who is not a party to this litigation.
118. Mr. Gulland admits he chose to include Mr. Bodies’ notes, knowing they were not discussed.
RESPONSE: Deny
IVERSON REUVERS
Date: July 16, 2010
By s/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
STATE OF MINNESOTA
SIXTH JUDICIAL DISTRICT
COUNTY OF CARLTON
DISTRICT COURT
CASE TYPE: CIVIL LAWSUIT
____________________________________
FILE NUMBER: 69DU-CV-10-801
Marvin Pirila & Gail Francette
PLAINTIFFS,
VS.
Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, JEFFREY JUNTUNEN
DEFENDANTS,
______________________________________________
THOMSON TOWNSHIP FIRE DEPARTMENT'S ANSWERS TO INTERROGATORIES
______________________________________________
8 Regardless of its classification, how do you explain entering a building, either locked or unlocked, without consent?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence.
9 Please give an approximate date of each entry
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence.
11 Is it common practice to visit properties about fire concerns without notifying owners or seeking their consent?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence.
12 ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence.
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence.
14 What was the name of person inside the premises Mr. Juntunen claims to have spoken too?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence.
15 What words did Mr. Juntunen share with that person?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence. Objection, this Interrogatory is vague.
16 Why weren’t the Minn. Statutes and Rules followed regarding entry?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence. Objection, this Interrogatory calls for a legal conclusion.
18 Does anyone still have the keys for the property at 1 N Cloquet Rd W?
ANSWER: Objection, this Interrogatory is vague. Notwithstanding said objection, on information and belief, no.
19 According to Mr. Juntunen, he entered the building through an unlocked east entry door. However, the door was found locked by contractors when they arrived with Mr. Juntunen already inside. How do you explain that?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence
20 If no, what happened to the keys you were given by Thomson Township?
ANSWER: Objection, this Interrogatory is vague. I believe I returned them to the Township.
21 Two contractors found Jeffrey Juntunen inside plaintiff’s building they remember as being locked, how do you explain that?
22 What policy did/does Thomson Township have in regards to the checking out and returning of keys?
ANSWER: Objection, this Interrogatory is directed at Thomson Township. I am not aware of the Township's policy or whether there is a policy.
23 What other fire department personnel still have possession of keys for the Old Washington School?
ANSWER: None.
24 Did Jeffrey Juntunen seek the consent of the owners prior to entering the premises at 1 N Cloquet Rd W?
ANSWER: Objection, this Interrogatory is argumentative and contains facts not in evidence. Objection, this Interrogatory is vague. Notwithstanding said objection, no.
25 If not, why?
ANSWER: The doors were open.
26 Was Jeffrey Juntunen acting in the capacity of a Deputy Fire Marshal?
ANSWER: No. I was acting in my official capacity as Chief of the Esko Fire Department.
27 Did Jeffrey Juntunen provide credentials when he encountered contractors on site?
ANSWER: No.
28 If not, why?
ANSWER: I told the contractor I was the Fire Chief.
29 Were owners contacted after Jeffrey Juntunen’s visits?
ANSWER: I was sure the contractor would pass my concerns along to the owners.
30 Why didn’t Jeffrey Juntunen identify himself on site?
ANSWER: See #28.
31 Why didn’t Mr. Juntunen leave a note that he had visited?
ANSWER: Objection, this Interrogatory is argumentative.
32 How many times Mr. Juntunen visit the property?
ANSWER: In total, twice. Once to ask the owner to remove a large pile of debris from the exterior and an additional time with the owner to discuss alternatives to the fire sprinkler system.
33 Is this common practice?
ANSWER: Objection, this Interrogatory is vague. Notwithstanding said objection, it is common practice to visit property owners when there is a fire concern.
34 How did Mr. Juntunen gain access to the inside of the Old Washington School?
ANSWER: When I entered the property to request the owner remove the large pile of debris from the exterior, I entered through the unlocked east entry door.
35 Mr. Pirila requested that the alleged fire codes be supported by State Statute and sent to him and never received them. Why?
ANSWER: I did not receive this request.
37 What authorizes a fire chief or fire marshal to enter premises, even if the doors were unlocked?
ANSWER: Objection, this Interrogatory is argumentative. Objection this Interrogatory calls for a legal conclusion.
46 What approximate dates did Mr. Juntunen enter the premises?
ANSWER: Objection, this Interrogatory is vague. Notwithstanding said objection, unknown.
THOMSON TOWNSHIP FIRE
DEPARTMENT
By s/Jeffrey Juntunen
Jeffrey Juntunen, Fire Chief
Subscribed and sworn to before me
This 19th day of AUGUST, 2010
s/Leah A. H. Pykkonen
Notary Public
(STAMP or SEAL)
LEAH A. H. PYKKONEN
Notary Public-Minnesota
My commission expires Jan. 31, 2015
August 20, 2010
23
IVERSON REUVERS
By s/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
Marvin Pirila & Gail Francette – Plaintiffs pro se
1 N Cloquet Rd W
Esko, MN 55733
(218) 391-2876
APPENDIX J
_____________ _
Relevant Documents
_____________ _
09-CV-10-934
_____________ _
TABLE OF CONTENTS
Page
EMAIL FROM DEFENDANT DUANE GRACE ON 2/13/09………………………………………………343-a
PRELIMINARY REVIEW OF THE WASHINGTON COMMUNITY CENTER REMODELING AND ITS BUILDING CODE CONSIDERATIONS (5/17/07) BY GREG HALLBACK…………………………..344-a
Duane C. Grace – Codes Consultant
Duane C. Grace & Associates
414 Belinda Drive
Alamo, Texas 78516-2575
Phone/Fax Office – 956/781-8657
Mobile Phone – 218/260-9692
13 February 2009
Mr. Al Adams – Architect
Mr. Greg Hallback – Designer
Re: Codes for the project of Marv Pirila – Washington Community Center Renovation.
…the Code being used for the design and my subsequent review was not shown on any documents. I generally go over these codes to make sure that the design is based upon acceptable documents adopted as part of our State Building Code, for my neglect and whatever inconvenience this has caused…
Sincerely,
Duane Grace
PROJECT: PRELIMINARY REVIEW OF THE
WASHINGTON COMMUNITY CENTER REMODELING AND ITS BUILDING CODE CONSIDERATIONS
OWNER: MR. MARVIN PIRILA
91 STILLMEADOW ROAD
ESKO, MN 55733
(218) 879-2478
PREPARED BY: GREG HALLBACK, DESIGN
SERVICES
903 CARLTON AVENUE
CLOQUET, MN 55720
(218) 879-6068
DATE: MAY 15, 2007
PREFACE:
The following is a reiteration of the relevant portions of the “2003 International Building Code” with commentaries in blue as the code relates to the specifics of the Washington Community Center.
The primary portion of the code addressed is the “2003 International Existing Building Code.” Secondarily, as it applies, the “2003 International Building Code, 2nd Edition” is interjected. References to the “2003 International Building Code, 2nd Edition” are below indented ½” from the left…
CHAPTER 1
ADMINISTRATION
SECTION 101
GENERAL
101.4 Existing buildings. The legal occupancy of any building existing on the date of adoption of this code shall be permitted to continue without change, except as is specifically covered in this code…
CHAPTER 2
DEFINITIONS
SECTION 202
EXISTING BUILDING. A building erected prior to the date of adoption of the appropriate code, or one for which a legal building permit has been issued.
SECTION 310
RESIDENTIAL GROUP R
The gymnasium building portion of the project shall not be reclassified since it was built as a gymnasium/community center, has always been a gymnasium/community center, and will continue to function as a gymnasium/community center. For nearly seventy years this building has functioned in many, many capacities, including a recreational facility for community athletics, the crowning or the Carlton County Dairy Princesses, 4-H meetings, rummage sales, religious functions, etc., etc.. Its classification has always been, and will stay, “Assembly Group A-3” (Group A-3)…
APPENDIX K
_____________ _
SUMMONS AND Complaint
_____________ _
09-CV-10-934
_____________ _
STATE OF MINNESOTA
SIXTH JUDICIAL DISTRICT
COUNTY OF ST. LOUIS
DISTRICT COURT
CASE TYPE: CIVIL LAWSUIT
FILE NUMBER: 09-CV-10-934
Marvin Pirila & Gail Francette
PLAINTIFFS
VS. COMPLAINT
CITY OF DULUTH, Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, JEFFREY JUNTUNEN
DEFENDANTS
PLAINTIFF, as and for its cause of action against the above-named defendant states and alleges as follows:
1. Plaintiffs owning property at 1 N Cloquet Rd W, Esko, MN, incurred personal injury due to statutory violations of building codes by Mr. John Gulland (ID Code 137125, Building Official 1438) and Mr. Duane Grace, Plan Reviewer. Defendants Gulland and Grace negligently subjected plaintiff’s to foreseeable risk of harm, reasonably knowing the code they chose for the building was incorrect. Mr. Jeffrey Juntunen violated plaintiffs 4th Amendment rights from which he contributed to a false report created by Attorney David Pritchett.
2. Mr. Gulland was censured by Commissioner of Labor and Industry Steve Sviggum for violations of Minn. Statutes and Rules regarding building codes (Dated 9/30/09).
The Consent Order stated that the Commissioner was prepared to commence formal action against Respondent’s (John Gulland) 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).”
Barry Greive, Senior Building Code Representative, Construction Codes and Licensing Division, conducted the investigation for the Minnesota Department of Labor & Industry. Mr. Greive’s investigation concluded that Mr. Gulland was in violation of the following state statutes: Minn. Stat. § 1305.903.2.7, Minn. Stat. § 326B.133, sub. 4; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110, subp. 3; and Minn. R. 1300.0110, subp. 4. Mr. Gulland faced civil penalties up to $10,000 per violation had he not consented to the Consent Order.
Statutes have the legislative intent of identifying and protecting a particular and circumscribed class of persons. The plaintiffs argue that the class of persons, in the aforementioned statutes, was intended to protect homeowners from the type of abuses mentioned herein.
3. Mr. Gulland and Mr. Grace must follow all ministerial duties to the letter, which means that Guidelines for Rehabilitation of Existing Structures (GREB) guidelines necessarily attach to an existing building such as the plaintiffs’.
4. Mr. Duane Grace, plan reviewer, also violated MN statutes and rules regarding building codes that injured the plaintiffs. Mr. Grace made several statements in his emails to suggest he overstepped the duties vested in him, and acted in malice. Mr. Grace also played a large role in the long delays in the permitting process. Mr. Duane Grace resides in Texas for the winter and reviewed the project from there.
5. Mr. Gulland and Mr. Grace took exception to the plaintiffs asking questions regarding their interpretations of the code. Mr. Gulland was especially angry that Mr. Pirila questioned him on the facets of construction that took place by Thomson Township during its 13 years in the very same building. At times, Mr. Gulland would say he did not know what happened there, or simply ignored the questions. At yet other times, he would share intimate knowledge of projects that occurred in the building. Mr. Pirila was acting as his own General Contractor. The actions and lack of action, by Mr. Gulland and Mr. Grace suggest they retaliated through pettiness, unsupported code compliance, absence of requests in writing, and long, endless delays in granting building permits. In fact, no building permit was issued without some role of intervention either being threatened or taken by the Minnesota Department of Labor. Each time, it was nearly two months of consistent delays before Mr. Pirila consulted the MN DOLI for intervention. The range of discretion of a building inspector in deciding whether applicants are entitled to a building permit is narrow, and fails to explain why there appeared to be no end to the review process Mr. Gulland and Mr. Grace subjected plaintiff’s too.
6. The refusal by Mr. Gulland to put things in writing created ambiguity. Even when plaintiffs personally wrote down the requirements stated by Mr. Gulland and Mr. Grace for a Temporary Certificate of Occupancy these same requirements changed when plaintiffs fulfilled them. Plaintiffs contend that Mr. Gulland intentionally kept matters ambiguous to delay permitting and the approval of a Certificate of Occupancy. Ambiguity presents a genuine issue of material fact necessitating a trial.
7. By applying the wrong building codes initially and throughout the project, Mr. Gulland and Mr. Grace caused plaintiffs enormous financial loss, along with the displacement from their property; personal, marital and familial stress. The delays in permitting lacked proper justification.
8. After the DOLI began its investigation, Mr. Gulland continued his misconduct by not completing inspection cards on site, failing to write out reports, and by scheduling unneeded meetings that forced the owners out of work early to attend. The meetings were not requested by plaintiffs and retaliatory in nature.
9. Mr. Gulland failed to administer this project with the proper degree of care. The Minnesota DOLI agreed stating “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 Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.” The reference to allowing others to dictate code compliance suggests a reference to Mr. Grace, who Mr. Gulland relied on largely for building code interpretations. It is also strong evidence of ambiguity.
10. The gym is considered a different portion of the building and plaintiffs requested to use it for rentals exactly as it had been by Thomson Township up to plaintiff’s date of purchase. Mr. Gulland stated that it was a “change in use” automatically when ownership changed hands. This is unsupported by the code. Mr. Greive, MN DOLI, agrees that this did not constitute a “change in use.”
Mr. Grace acknowledged that the Guidelines for Rehabilitation of Existing Structures known as GREB would be used where applicable, but never were. Even though acknowledged, GREB guidelines were not followed. One critical point here is that this email came on December 11, 2008, acknowledging GREB, which is well after Mr. Gulland claimed that these same guidelines did not apply. Mr. Gulland relied almost completely on Mr. Grace’s interpretations, unless they benefitted the plaintiffs. Plaintiffs allege that Mr. Grace’s email is evidence that both he and Mr. Gulland were aware of the requirement to apply GREB guidelines, but chose not to.
11. This project is a rehab project, subject to more relaxed building code enforcement under GREB. Mr. Gulland insisted it was a “change in use” and “considered the same as a new building.” It was really a “change in occupancy” in part, not a “change in use.” The gym portion was neither as it was going to be used just as it had been. The owners and their design professional, Greg Hallback, maintained that the building was in fact a rehab and subject to less stringent requirements.
12. Mr. Gulland accompanied the township plumbing inspector, Paul Sandstrom, on a plumbing inspection without requesting access from plaintiffs. A building inspector may not enter premises without prior notification given to the owner (Minn. R. 1300.0110 Subp. 7). On another occasion Mr. Gulland must have used an old key he possessed to enter the property via a locked door. The owner must make inspection requests, or if the building inspector has reason for cause they must attempt to contact the owner first. Mr. Gulland failed on all counts, making unscheduled visits, demanding visits without cause, and failing to attempt to contact the owners. Additionally, in the event of visits, the inspector is supposed to provide credentials to anyone he comes in contact with. Mr. Gulland did not and proceeded to harass and intimidate future renters on an unscheduled visit with Mr. Adams (architect).
13. Mr. Gulland violated The Fourth Amendment guaranteeing all persons the right of privacy free from unreasonable state intrusion. Plaintiffs file this action pursuant to 42 U.S.C. § 1983. Mr. Gulland failed to provide notice or attempt to contact plaintiff’s regarding unauthorized and unscheduled visits. This is a violation of Minn. Rule 1300.0110, Subp. 5. Plaintiffs worry that such unattended and unscheduled visits allowed Mr. Gulland to go on fishing expeditions to find problems or explore avenues to delay the project. There was nothing to stop Mr. Gulland from exploratory invasions into plaintiff’s personal items, and nothing to stop him from other areas in which he had no business.
14. Mr. Juntunen, Fire Chief, entered the plaintiff’s property twice without notification. These unauthorized visits led to a letter about “alleged” fire code violations. Mr. Juntunen never discussed his claims with the homeowners, nor was contact made or attempted prior to the letter. This constituted two more violations of The Fourth Amendment. Mr. Juntunen and Thomson Township are liable under 317A.257 Subd. (2) and (3). The plaintiff’s concerns are the same as they were with Mr. Gulland’s unexpected, unscheduled visits. Tools were among some items that went missing during the project and plaintiffs attempted to monitor the comings and goings of everyone as much as possible. The plaintiff’s would have agreed to schedule a walk-through if Mr. Juntunen had requested one. These inspections must be for the purpose of the statute authorizing such inspections and that the statutory power to inspect cannot be used to conduct a search for other purposes. The question that troubles plaintiffs is the motive and intent behind these unauthorized, illegal entries.
15. Mr. Juntunen allegedly gave orders to local firefighters to park on the main road (Canosia or North Cloquet Rd) and let the building burn, rather than try to extinguish any fire. Two local volunteers allegedly gave the same details on different occasions. Again, no information of Mr. Juntunen’s concerns was shared with the owners. This was a standing order for nearly a year, encompassing parts of 2008 and 2009. A jury trial will be necessary to derive the actual facts of these orders per Mr. Juntunen and fire department officials. All requests for information prior to this complaint have been ignored, except for Mrs. Janke talking to Mr. Brent Pykkonen. Mr. Pykkonen told her the orders were simply misconstrued. Mr. Pykkonen suggested that firefighters were told that no one should try to be a “hero,” but this varies significantly from the claim they were to stay on the main road and watch it burn.
16. The posted job inspection card has no entries from Mr. Gulland. The MN DOLI cited Mr. Gulland, “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.” Without the completion of the inspection card, general contractors, owners, and contractors are not sure what the inspector ultimately seeks for a temporary certificate of occupancy. The whole premise of the inspection card and written requests is to eliminate ambiguity and confusion. Mr. Gulland maintained only verbal requests that constantly changed and left the owners always fulfilling another demand. The results of inspections were also to be recorded in the official records of the municipality (Minn. Rule 1300.0110, Subp. 5). Mr. Pirila saw no records when he reviewed the records at Thomson Township. During the entire MN DOLI investigation Mr. Gulland never made any written entries at the Township or on site.
17. Mr. Gulland refused to grant a temporary certificate of occupancy time and time again, even though plaintiff’s met his verbal demands. Mr. Gulland failed to list these requirements in writing at any time, and constantly changed them, keeping the plaintiff’s from their residence. Failure to put inspection results or other demands in writing is a violation of Minn. Statute § 326B.133, subd. 4, and Minn. R. 1300.0110, subp. 4.
18. The MN DOLI states numerous misinterpretations of the building code by John Gulland (portions in quotes):
“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.”
“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.” Based on Mr. Grace’s email, Mr. Gulland cannot claim he wasn’t aware. Regardless of the email, Mr. Gulland had a statutory obligation to treat this as a GREB project.
When the MN DOLI stated “that Minn. R. 1311 was specifically to be used for the project unless an alternate method or code was requested and approved,” one is led to the word “specifically.” For two experts in building codes, Mr. Gulland and Mr. Grace, to miss this significant and critical starting place for existing buildings is legally unreasonable.
“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.”
20. Disparity in Rulings -- John Gulland allegedly gave the Township an 18-month stay on a fire system, in this same building when they owned it, prior to their moving to their new location. The system they had was outdated and did not include horns within each room. This, as stated in Mr. Gulland’s own words, would be a “life issue” he intentionally ignored. Numerous Thomson Township employees, visitors, and renters were knowingly placed at risk. Requests for verification of building permits required by Thomson Township during its time in the same building were ignored. Logically, one can assume that Mr. Juntunen was aware of the fire alarm system the township had and any exceptions provided.
A couple moved into a house owned by Michelle Kucinski on Meadow Lane, prior to the final inspection. Mr. Blomquist, the contractor, requested an inspection but was told that Mr. Gulland was sick that day. Township Clerk, Rhonda Plejeski, told him that “it was the owner’s prerogative whether or not they wanted to move in.” They did, and Mr. Gulland did not remove them when notified. The plaintiff’s on the other hand, were denied a temporary certificate of occupancy time and time again, even though they had met Mr. Gulland and Mr. Grace’s verbal demands. Mr. Gulland never once recorded his visits on the required postings, citing either approvals or deficiencies. Mr. Gulland repeatedly refused to put anything in writing when pressed by the owners.
21. Mr. Gulland harassed plaintiff’s contractor Mark Blomquist, suggesting he was acting as a general contractor and questioned his work (without the benefit of specific codes to support his inquisitions). Further, he questioned Mr. Blomquist on facets of the construction of which he does not, and would not, have knowledge. Mr. Gulland resorted to attacking Mr. Blomquist personally on another job he had in the area.
Mr. Gulland was fully aware that plaintiff Marvin Pirila was always the acting General Contractor. Plaintiffs allege this was another unfounded exploratory mission by Mr. Gulland to create problems, and ultimately delays in the project.
22. Mr. John Gulland refused to allow phased approval that would have benefited the owners as allowed under Minn. R. 1300.0110 Subp. 8.
The owners had requested phased approval to insulate the main floor of their building while the permit process played itself out. These were the coldest months of winter and heating costs were extremely high. Mr. Grace, Plan Reviewer, said this was possible and had allowed it in other projects himself. He said he would talk to Mr. Gulland. Mr. Gulland denied our request, demanding to have everything for a “full permit” before any work could progress. Mr. Gulland continually cited energy codes, yet maliciously denied us the opportunity to save thousands in heating costs while reducing carbon emissions. The MN DOLI determined that the energy code did not apply to plaintiff’s project. Again, the different opinions by Mr. Gulland and Mr. Grace created ambiguity.
23. Violation of 1300.0110, Subp. 8, Action on application. Mr. Gulland and Mr. Grace took an excessive amount of time in their reviews. In fact, nearly two months each time. The building permit was only approved the first time after Mr. Pirila’s complaints to legislators, the State Attorney General, and the Department of Labor and Industry. The second time, an investigation by the Minnesota Department of Labor & Industry was requested, eventually leading to the permit. This investigation found Mr. John Gulland in violation of at least six (6) Minnesota Statutes and Rules.
Mr. Gulland continually left Mr. Pirila out of communications even though he was acting as his own general contractor. In essence, Mr. Gulland was intentionally contributing to the delays.
24. Mr. Gulland presented false and misleading information to the Thomson Township attorney. Plaintiffs received a letter from the attorney with numerous distortions of the truth. This letter constitutes fraud and deceit by Mr. Gulland and Mr. Juntunen, and intentionally misrepresented facts.
A. Mr. Gulland claimed the owners had no mechanical engineer as required. Heat Mechanical (Rick Hatanpaa) via Foehringer Engineering was in the process of doing the mechanical drawings and plumbing designs for unfinished portions of the building. The owners had previously informed Mr. Gulland they had engaged the services of a mechanical engineer.
B. Mr. Gulland claimed there was no architect on board. Mr. Gulland had always been aware that designer, Greg Hallback, worked with architect Alan Adams, who has been on board, as needed, from the first day Greg became involved.
C. Mr. Gulland claimed he requested plaintiffs have a structural engineer look at the main building. The truth was that no structural engineer had been required by Mr. Gulland at any time. He had suggested we have one look at the gym roof. We had already talked to Greg Hallback about possible structural engineers. Structural Engineer Scott Erickson was scheduled to visit on Wednesday, September 10, 2008, to review the project, but again, this was at plaintiff’s option only. Mr. Erickson called that Wednesday morning to say he was too busy to accept this job. Engineer John Ahmat, Northland Consulting Engineers, then visited and did a structural review of the gym roof. Mr. Ahmat and Mr. Pirila visited the area in the main building that Mr. Gulland questioned and verbally discussed the plans for that area. Mr. Ahmat was satisfied that it was structurally sound and would be fine as discussed. No report was produced. To our knowledge the Township owned it for 13 years while Mr. Gulland worked here and never had a structural review.
D. Mr. Gulland was questioning why a plumbing inspection had not been done yet. A plumbing inspection, to plaintiff’s knowledge, was scheduled September 10, 2008, by the State. This was delayed because the Township plumbing inspector, Paul Sandstrom, withdrew from his position on this project. Plaintiff’s received no notification of his withdrawal from Thomson Township, finding out through one of their contractors. No official reason has been provided. [Mr. Gulland accompanied Mr. Sandstrom without seeking consent of owners. This is forbidden under Minn. R. 1300.0110 Subp. 7.]
E. Mr. Gulland claimed the building was in violation of fire codes, yet we received no written notice or verbal communications of any violations of fire codes by any person at any time during our ownership of this building. Two contractors witnessed a fire official walking through the building without consent, twice. Mr. Gulland brought it up only after plaintiffs questioned him on how he managed to be in the building when the doors were locked. (Mr. Gulland was supposed to be waiting outside the building to meet plaintiffs for a walk through.) He then brought up the fireman’s concerns (but no fire code violations) when Mr. Pirila asked how many Township officials were giving themselves unauthorized access to the building. And again, there was no mention of actual fire code violations, only concerns. Plaintiff’s asked for actual fire code violations in writing, supported by Minnesota State Statute, and received nothing.
The attorney for Thomson Township, Mr. David Pritchett, claims this letter was based on his findings in the file, but Mr. Pirila’s review of the files show no such supporting information.
25. Thomson Township officials failed to respond to plaintiff’s letters disputing Mr. Gulland’s claims. The refusal of Thomson Township officials to answer inquiries has prevented plaintiffs from material facts critical to this complaint. Our requests for information were intentionally delayed and improperly withheld. Formal Discovery procedures will be necessary to obtain the information regarding plaintiffs claims.
The information requested goes to the heart of motive – specifically that of Thomson Township and that of Mr. Gulland’s malice. Plaintiff’s believe that the resulting facts are material as it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
26. To avoid personal injury plaintiff’s requested that building inspector Mr. Gulland be removed from the project. No response was received.
27. Retaliation for State Investigation: After the owners initiated a state investigation, Mr. Gulland began visiting the project every Thursday at 4:00 p.m. with architect Alan Adams. These visits were not requested by the plaintiff’s and clearly retaliatory. These visits required the owners to leave work early (when they could) to attend. Mr. Gulland claims Mr. Adams made these appointments, yet he attended knowing that the plaintiff’s were not in favor of these “punishment visits” that did little or nothing to get the project moving. In fact, Mr. Gulland made no attempts to contact either Mr. Pirila or Mrs. Francette about scheduled visits. The architect had no authorization from the owners to arrange meetings. Mr. Gulland was fully aware of this situation, yet still attended. The same items were covered again, without additional progress being made. Mr. Pirila told Mr. Gulland again that he would call him for an inspection when needed.
This practice was reported to Barry Grieve, MN DOLI investigator, who said they were not done on his behalf. Mr. Grieve said he would call Mr. Alan Adams (Architect) and Mr. John Gulland to discuss the issue. This led to a delay in the MN DOLI investigation which was scheduled for completion in June 2009. Instead, it was not completed until the end of September, 2009, and available to the owners on October 19, 2009, by email.
28. Intentional Tort Suspected. Mr. Gulland made the statement to Greg Hallback, designer, that the Township needed time to get reestablished after moving – made in reference to the gym status. By delaying the plaintiff’s project the Township benefitted by greater rental fees from community individuals and groups. The lack of responses from Thomson Township officials, Mr. Gulland, and Mr. Grace, suggests the object was to delay plaintiff’s project at any cost.
29. Ambiguity exists because the wrong building code was initiated at the beginning of the project. The actions following this initial error were based on improper interpretations, and the ensuing requirements for the whole project from there on are also at question.
Defendants acted with malice by committing acts (failing to write reports, record inspections, inspect without consent, etc.) they had reason to believe were prohibited. Defendants acted without legal reasonableness in violating known rights of plaintiffs.
Building codes are ambiguous as evidenced by the inability of two proclaimed experts, Mr. Gulland and Mr. Grace, to derive the correct interpretations. As Mr. Grace stated in an email, “I spend a lot of time trying to educate architects, other designers, contractors, etc., as to what the code requires and how they can accomplish what they want to achieve and still comply with the code.” If one expert, who seriously erred in our project, is educating other professionals in building codes, how could a reasonable person derive their interpretation?
30. Plaintiffs were homeless for nine (9) months and lived with Mr. Pirila’s sister in Saginaw. This increased commuting time to work for plaintiffs, left their property at risk of vandalism, and created hardships in arrangements for Mr. Pirila’s two daughters who go to school in Esko. Mr. Gulland persecuted Mr. Pirila and Mrs. Francette for roughly 2 ½ years with non-complying codes, constantly shifting positions, trespassing/illegal visits, and failing to put anything in writing. Mr. Gulland retaliated twice after Mr. Pirila reported his concerns to the MN DOLI. Mr. Gulland is also responsible for a false report that he orchestrated through the Thomson Township attorney, Mr. David Pritchett.
31. Thomson Township participated in harming plaintiffs by taking Mr. Gulland’s position, even when wrong. Thomson Township attorney David Pritchett consulted a former town zoning official Marv Bodie on our project. As a former official, this is a violation of our privacy rights. The claim that “there are large piles of demolition materials both within and outside the building, in violation of the state fire code,” came via illegal access to the building by Mr. Juntunen. This is a fourth amendment violation.
32. A trial will be necessary to determine the material facts of this case.
33. The city of Duluth denies liability because Mr. Gulland was subcontracting for Thomson Township. Plaintiffs disagree. Mr. Gulland listed his Duluth work phone number on his February 12, 2007, letter as his contact number. There is also a question of who was paying Mr. Gulland when he made his two 4:00 p.m. unauthorized visits at Plaintiffs property. Mr. Gulland’s regular hours at Thomson Township were Tuesday and Thursday evenings from 6-9 pm. Mr. Gulland may have been on the clock for the City of Duluth during the 4 pm visits. Mr. Gulland may also have been answering emails and researching project questions while working for the City of Duluth.
WHEREFORE, Plaintiff demands judgment against defendant for the aforementioned reasons and relief as follows:
Reimbursement for all legal associated costs, including:
§ Court and legal costs (Filing, serving, and other associated costs). Includes: Opening Fee: $320; Request for Jury Trial: $100; Subpoena: $16 each; Motion or Response to Motion: $100; Requests for information costs (Stamps, Envelopes, etc.); Proof of Service; Notary Costs
§ Professional costs (Engineer and Accountant reports, and time spent in interrogatories and testifying)
§ All other costs that a court may assess.
Tort liability is allowed under statute by:
§ Minn. Stat. § 466.02
§ Minn. Stat. § 466.04 Subd. 1. Limits; (3), for up to $500,000.
§ Minn. Stat. § 466.04 Subd. 1a allows Mr. Grace and Mr. Gulland to be held liable for amounts exceeding those of Subd. 1 (3).
§ Minn. Rule 1300.0110 states that personal liability may attach to building officials who failed to act in good faith and acted with malice in the discharge of duties.
§ Constitutional claims are non-tort and are not covered by municipal tort caps. An additional $50,000 per incident is requested.
§ Section 1983 Claims
Reimbursement for Actual Damages:
§ The loss of the gym resulted in a lower appraisal value, lower revenues, depreciation, and added to financing difficulties. The depreciation would have assisted the owners at tax time, and the revenues would have supported financing from banks. The gym and rooms averaged 2.429 hours of rentals a day at $25/hour = $60.73/day* Through March 17, 2010 (1201 Days) this amounts to $72,936.73. Another $60.73 (+ lost depreciation) a day will be added for each additional day. Thomson Township currently advertises space at their current location at $25/Hour for individual and For-Profit Groups. Non-Profit Groups are charged $50 and event.
§ This lack of use and income potential led to increased lending costs due to absence of income. The lending issue led to greater damage of the gym roof, leaking, and additional damage to interior floors/walls. If the property owners could have claimed income and/or income potential from this property, this damage would have been limited. Cost TBD.
§ This is a rehab (GREB) conservation project not subject to energy code requirements. Cost ~ $50,000. This also dictated how the building had to built and designed, and changed the order in which the owners would have done things. The objective would have been to complete rental units first to secure financing, while still renting rooms as Thomson Township had been.
§ The enforcement of the wrong building code increased architectural/design costs due to repeated requests for the same information, redrawing, and excessive visits. Code error may have resulted in much more cost than stated. Engineer will assess actual damages. Cost TBD.
§ Lost Rent + Renters Paying Own Utilities. Delay in permit due to indecisions by Gulland on Crawl Space (3 month delay). Three months rent ($1,600/month) + approximate utilities ($100 each/month). Cost = $5,100.
§ Higher insurance rates. Vacant rates are higher than occupancy rates. Actual damages to be computed by insurance agent. Cost TBD.
§ Plan Review Costs paid to Mr. Grace $924
§ Gym Roof/Wall Damage. Caused by misinterpretation and lack of use of gym for depreciation/income purposes. An engineer will be assessing the actual damages. Cost TBD.
§ Gym Floor Damage. An engineer will assess the actual damages. Cost TBD.
§ Sewer Pump Failure. Pumps failed due to lack of use. $2,355
§ Tax Consequences for non-residential status. Loss of all itemization led to higher tax bracket - this occurred as we make decent incomes, yet had no place to call home. An accountant will be assessing the actual damages. No depreciation could be taken.
§ Mandatory visits made and/or scheduled by Mr. Gulland that forced Mr. Pirila and Mrs. Francette to leave work early. The homeowners had to leave work early three times to attend. Cost = 24 hours x $24/hr = $576. As Mr. Alan Adams and Mr. Hallback had to attend as well, they cost the homeowners additional money. Cost for Mr. Hallback = 3 visits x 2 hours x $75/hour = $450. Cost for Mr. Alan Adams = 3 visits x 3 hours (with travel) x $125 = $1,125.
§ Displacement from their own home, in conjunction with an early withdrawal from their retirement plans, subjected Mr. Pirila and Mrs. Francette to large tax consequences. Without write-offs for the first time, due to displacement, their Federal Tax bill amounted to $30,000 and their state to $6,000. Failed attempts at the Offer in Compromise procedures with each government entity resulted in a tax lien being threatened and soon to be in place by the IRS. This will affect Mr. Pirila and Mrs. Francette’s credit status for 10-15 years. This will cost plaintiffs hundreds of thousands in additional costs.
§ Punitive damages for three years of intentional personal injury, willful and malicious conduct, and reckless indifference. Section 1983 claims allow punitive damages from individual state actors upon a showing that the conduct was “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” $3,000,000 ($1 million for each year of occurrence).
Plaintiffs have tried extensively to avoid such damages through contacts with Thomson Township and were ignored.
Respectfully,
s/Marvin Pirila s/Gail Francette
Marvin Pirila & Gail Francette
1 N Cloquet Rd W
Esko, MN 55733
marvindp@msn.com
(218) 391-2876
VERIFICATION AND ACKNOWLEDGEMENT
A. I have read this document. To the best of my knowledge, information the information, contained in the document is well grounded in fact and is warranted by existing law.
B. I have not been determined by any court in Minnesota or in any other State to be a frivolous litigant or subject to an Order precluding me from serving and filing this document.
C. I am not serving or filing this document for any improper purpose, such as to harass the other party or to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court.
D. I understand that if I am not telling the truth or if I am misleading the court or if I am serving of filing this document for any improper purpose, the court can order me to pay money to the other party, including reasonable expenses incurred by the other party because of the serving of filing of this document such as court costs, and reasonable attorneys fees.
s/Marvin Pirila__s/Gail Francette_
PLAINTIFF
Marvin Pirila GAIL FRANCETTE
ADDRESS
1 N Cloquet Rd W
Esko MN 55733
___________________________________
TELEPHONE
SUBSCRIBED AND SWORN TO BEFORE ME
THIS 16th DAY OF March, 2010
s/Mary F. Conley_______________________
NOTARY PUBLIC/COURT CLERK
MY COMMISSION EXPIRES Jan. 31, 2015
MARY F. CONLEY
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31, 2015
STATE OF MINNESOTA
SIXTH JUDICIAL DISTRICT
COUNTY OF ST. LOUIS
DISTRICT COURT
CASE TYPE: CIVIL LAWSUIT
FILE NUMBER:
Marvin Pirila & Gail Francette
PLAINTIFF
VS. SUMMONS
CITY OF DULUTH, Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, JEFFREY JUNTUNEN
DEFENDANTS
THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANT:
You are hereby summoned and required to serve upon Plaintiff or his Attorney an answer to the complaint which is herewith served upon you within twenty (20) days after service of this summons upon you, exclusive of the day of service. If you fail to do so judgment by default will be taken against you for the relief demanded in the complaint.
Rule 114 of the Minnesota General Rules of Practice provides for use of alternative dispute resolution (“ADR”) in most cases. Notice of ADR processes will be provided by the Court Administrator after this action is filed.
s/Marvin Pirila
PLAINTIFF
1 N Cloquet Rd W
Esko, MN 55733
ADDRESS
TELEPHONE
APPENDIX L
_____________ _
NOTICE OF CLAIM
_____________ _
09-CV-10-934
_____________ _
Notice of Claim to Personal Injury
Marvin Pirila & Gail Francette
1 Cloquet Rd W
Esko, MN 55733-9533 January 6, 2010
Parties:
Thomson Township
25 E Harney Rd
PO Box 92
Esko, MN 55733-0092
(218) 879-9719
(218) 879-9114 (fax)
Thomson Township Fire Department
13 Thomson Rd
Esko, MN 55733
(218) 879-8825
City Attorney
City of Duluth
411 W 1st St RM 410
Duluth, MN 55802-1199
(218) 730-5490
(218) 730-5918 (Fax)
John Gulland, Building Codes Administrator
City of Duluth
411 W 1st St RM 210
Duluth, MN 55802-1199
(218) 730-5163
(218) 730-5901 (Fax)
jgulland@duluthmn.gov
Duane Grace – Codes Consultant
Duane C. Grace & Associates
414 Belinda Drive
Alamo, TX 78516-2575
(956) 781-8657 (Phone & Fax)
duanec29@aol.com
This is official notice that Marvin Pirila and Gail Francette have incurred personal injury due to the incompetence, negligence, willful and wanton misconduct of John Gulland (ID Code 137125, Building Official 1438), Duane Grace, Jeff Juntunen, the City of Duluth, and Thomson Township Officials in regards to the Marvin Pirila/Gail Francette project located at 1 N Cloquet Rd W, Esko, MN.
Mr. John Gulland, building official certification No. 1438, was censured for his violations regarding building codes related to the project at 1 N Cloquet Rd W by Commissioner Steve Sviggum (Dated 9/30/09). Mr. Pirila and Mrs. Francette received an email copy of the findings on October 19, 2009.
The Consent Order by the Commissioner of Labor and Industry Steve Sviggum (“Commissioner”), dated 9/30/09 and signed by Charles Durenberger, states: “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).”
Barry Greive, Senior Building Code Representative, Construction Codes and Licensing Division, conducted the investigation for the Minnesota Department of Labor & Industry. Mr. Greive’s investigation concluded that Mr. Gulland was in violation of the following state statutes: Minn. Stat. § 1305.903.2.7, Minn. Stat. § 326B.133, sub. 4; Minn. R. 1305.903.2.7; Minn. R. 7676.1400; Minn. R. 1311; Minn. R. 1300.0110, subp. 3; and Minn. R. 1300.0110, subp. 4. Mr. Gulland faced civil penalties up to $10,000 per violation had he not consented to the Consent Order.
Minn. Stat. § 326B.082 ENFORCEMENT Subd. 11. Licensing orders; grounds; reapplication. “(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;
(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;
(9) engaged in 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.”
The censuring of Mr. John Gulland is strong evidence of wrongdoing.
Absence of Good Faith
Mr. Gulland knew the legalities of his actions, and acted with malice, fraud, bad faith, and corrupt motive. Additionally, Mr. Gulland is a Building Codes Administrator for Duluth, Minnesota with extensive building code knowledge. Mr. Gulland sits on the Building Appeal Board for Duluth. The City of Duluth website lists Mr. Gulland as the Construction Inspector (West) * State Designated Building Official “Responsible for building inspections of all new construction, remodeling, renovations or additions in the city limits west of Lake Avenue. This is a large city area, encompassing most of downtown Duluth’s business and commercial district, extending west and north into mixed residential and rental areas. Mr. Gulland has also been a committee member of the Building Codes and Standards Division (BCSD) for several years. It is unconscionable to think Mr. Gulland does not know the rules and what a person’s “clearly established” constitutional rights are. In the absence of “good faith” Mr. Gulland has lost any defense of immunity. [Section 1983, 42 United States Code Section 1983, Civil Rights Act of 1871]. Mr. Gulland, as a long-term government official, “knew or reasonably should have known” that his official actions violated Mr. Pirila’s and Mrs. Francette’s constitutional rights. [Wood v. Strickland, 420 U.S. 308, 322, 327 (1975)]
Mr. Gulland was also provided a plan reviewer by Thomson Township, Mr. Duane Grace, for additional assistance. Mr. Grace himself advertises “I have been a Minnesota licensed Building Official for 38 years and a building and fire codes consultant working with cities, counties, the design professionals and attornies since 1983…I feel that my expertise with the codes can and does save the design professionals time and money in the early plan review process, by determining the construction types and occupancies associated with their design. A good code analysis to start a project in the right direction is a time and money saver.” Source: LinkedIn @ www.linkedin.com/pub/duane-grace/10.814/15a.
Mr. Grace’s online profile says he was a Building Codes Consultant with the Minnesota State Building Code Division, now Department of Labor & Industry from June 1979 to August 1986. In regards to the Old Washington (Mr. Pirila & Mrs. Francette) project, Mr. Grace was equally wrong in applying the codes. This again, is an unconscionable act by someone bragging such expertise in the field. Adding together both Mr. Grace’s and Mr. Gulland’s expertise, one can only imagine the odds that they both could be unknowingly wrong in their respects to the proper codes.
Mr. Gulland and Mr. Grace both took great exception to the building owner, Mr. Pirila, asking questions regarding their interpretations of the code. Mr. Gulland was especially angry that Mr. Pirila questioned him on the facets of construction that took place by Thomson Township during its 13 years in the very same building. At times, Mr. Gulland would say he did not know what happened here, or simply ignored the questions. At yet other times, he would share intimate knowledge of projects that occurred in the building. Mr. Pirila was acting as his own General Contractor and Mr. Grace and Mr. Gulland took advantage of that whenever they could.
Grounds for Dismissal of Immunity Rights
The Government Tort Liability Act (GTLA) dismisses claim of immunity from suit to government when their conduct is grossly negligent and the “proximate cause” of plaintiff’s injuries. According to Title 14 - § 8111 (1) employees of governmental entities shall not be immune from the personal civil liability in which an employee’s actions are found to have been in bad faith [2001, c. 662, § 9]. Gross negligence or willful or wanton misconduct are grounds for liability. See 46-23-511, Immunity from suit. History: En. Sec. 14, Ch. 375, L. 1997. GTLA defines negligence – “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results” when the mental attitude accompanying the conduct amounts to conscious indifference to the rights, welfare, and safety of others.
In Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982), the court stated, “..that there is liability for civil damages insofar as their conduct violates clearly established statutory or constitutional standards of which a reasonable person would have known.” Mr. Gulland has extensive experience in building codes and is an active Building Code Administrator for the Duluth Building Codes department. Additionally, Mr. Gulland was afforded a plan reviewer, Duane Grace, to assist in building code interpretations. If these two experts could not derive the right building codes to operate from, it would be impossible for a layman, a reasonable person, to determine.
“The basic elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach.” Ballesteros v. State, 161 Ariz. 625, 627, 780 P.2d 458, 460 (App. 1989). Duty is simply a question of whether “the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff.” Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). If there is a duty, then a defendant must “act reasonably in light of the known and foreseeable risks. It is here, in determining whether the defendant acted reasonably or negligently, that the law concerns itself with specifics of defendant’s conduct.” Id. At 357, 706 P.2d at 369. What is reasonable necessarily depends on the circumstances. Id. It also concedes that reasonableness is generally a jury question, see id. At 358, 706 P.2d at 370, and Bellezzo v. State, 174 Ariz. 548, 551, 851 P. 2d 847, 850 (App. 1992).
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.
Immunity is the exception and not the rule. “There is perhaps no doctrine more firmly established than the principle that liability follows tortuous wrongdoing; that where negligence is the proximate cause of an injury, the rule is liability and immunity is the exception.” Ryan, 134 Ariz. at 309, 656 P.2d at 598, quoting Stone, 93 Ariz. at 393, 381 P.2d at 112, modified by statute as stated in Tucson Unified Sch. Dist. v. Owens Corning Fiberglass Corp., 174 Ariz. 336, 339, 849 P.2d 790, 793 (1993).
Punitive Damages
Minn. Stat. § 549.20 Subd. 1-3 allows punitive damages for Defendant’s misconduct.
Minn. Stat. § 317A.257 states a person may be liable if their actions are not done in good faith, outside of their scope of duties, or did something constituting willful and reckless misconduct.
Minn. Stat. § 626.556 Subd. 4, Section (c) specifically states that there is no immunity for any person failing to make a required report. Subdivision 5, states “any person who knowingly or recklessly makes a false report under the provisions of this section shall be liable in a civil suit for any actual damages suffered by the person or persons so reported and for any punitive damages set by the court or jury, plus costs and reasonable attorney fees.”
After the DOLI began its investigation, Mr. Gulland continued his misconduct by not completing inspection cards on site, failing to write out his reports, and scheduled unneeded meetings that forced the owners out of work early to attend.
Mr. Gulland failed to administer this project with the proper degree of care. The Minnesota DOLI agrees stating “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 Minn. Stat. § 326B.133, subd. 4, and Minn. R. 1300.0110.” Source: Item 7 of conclusion letter from Barry Greive to Mr. Gulland.
The maximum punitive damages will be sought from all parties.
Building Inspector John Gulland intentionally drove costs up
16B.59 State Building Code; policy and purpose.
“The construction of buildings should be permitted at the least possible cost consistent with recognized standards of health and safety.”
HIST: 1984 c 544 s 64; 1995 c 254 art 2 s 1
This project was consistently referred to by Mr. Gulland as a “change in use” and “considered the same as a new building.” The owners and their design professional, Greg Hallback, maintained that the building was in fact a rehab and subject to less stringent requirements.
§ Mr. Gulland had owners fire caulk areas already sealed with drywall and mud, as allowed within the code. Cost ~ $250
§ The gym is considered a different portion of the building and requested to be used exactly as it was up to our day of purchase. Mr. Gulland stated that it was a “change in use” automatically when ownership changed hands. This is unsupported by the code. The end result was lost use, lower appraisal value, revenues, depreciation, and added to financing difficulties. The depreciation would have assisted the owners at tax time, and the revenues would have supported financing from banks. Cost ~ $75/day x days since purchase date of November 1, 2006 (1161 days through 1/5/10) = $87,075. This increases by another $75/day until resolved.
§ Mr. Gulland had owners put two (2) layers of 5/8” sheetrock on some walls downstairs, before stopping them. Originally he said a one (1) hour rating required two layers of sheetrock on each side of the studs, whereas it truly takes just one layer of 5/8” on each side. Cost ~ $1,000.
Criminal Trespassing/Illegal Entry by Township Authorities
John Gulland, contracted inspector for Thomson Township, illegally entered private property via an old key he had when the township owned the building. Witnesses: Marvin Pirila, Gail Francette, Nick Perfetti.
Reference: Page 2, item 1, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM
Mr. Gulland accompanied the township plumbing inspector, Paul Sandstrom, on his inspection. A building inspector may not enter any premises without prior notification given to the owner.
Reference: Page 2, items 2 & 3, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM
Jeff Juntunen, Fire Chief, illegally entered twice, without known access -- leading to a letter about “alleged” fire code violations. These claims were never discussed with the homeowners, nor was contact of any kind ever made. Witnesses: Mark Blomquist & Jake Fjeld.
An email from Mr. Pirila on Thursday @ 8:23 AM, 9/11/08, to Mr. Pritchard, Thomson Township attorney that included, “Please address the illegal entry concerns we have with all Township officials. Until we officially change all the doors, many of them may (and some do) have keys that allow entry to the building. We hoped they would treat this as another person’s home (as it is), and respect our right to privacy. If they have concerns or would wish to discuss something, they should call or write us regarding the same.” No response received.
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 and Mr. Juntunen entered the building twice without seeking consent of the owners.
Abuse of Position, Derelict of Duties, Abuse of Authority, Incompetence
Fire Department
Jeff Juntunen, fire chief, gave orders to local firefighters to park on the main road and watch the building burn, rather than try to extinguish any fire. Two local volunteers gave the same details on different occasions. Again, no information of Mr. Juntunen’s concerns was shared with the owners. This was a standing order for nearly a year, encompassing parts of 2008 and 2009.
The owners discussed this topic with Township Supervisor Ruth Janke, who took it up with Brett Pykkonen. Mr. Pykkonen said the message was misconstrued and was supposed to be that “no one was supposed to try to be a hero.” The message was clearly taken by firefighters, independently, to let the structure burn while they watched from the main road.
Source: Letter to Lori Swanson, State Attorney General, states that we did not know Mr. Juntunen. Also, September 9, 2008, letter to Mr. David Pritchard, Thomson Township attorney, Mr. Pirila believed the fire chief was Mr. Bassett, when it is really Mr. Jeffrey Juntunen -- See p.1, ¶ 4.
The designer on this project, Greg Hallback, said that Mr. Gulland had told him in their discussions that the township needed time to get established in their new location prior to us competing with them.
Failure of Inspectors to Follow Rules of Inspections
1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL
Subp. 5. Inspections. The building official shall make all of the required inspections or accept reports of inspection by approved agencies or individuals. Results of inspections shall be documented on the job site inspection card and in the official records of the municipality, including type of inspection, date of inspection, identification of the responsible individual making the inspection, and comments regarding approval or disapproval of the inspection. The building official may engage expert opinion necessary to report upon unusual technical issues that arise.
The on the job inspection card that is posted has no entries from Mr. Gulland or Mr. Grace. No deficiencies, or anything else, were noted.
The MN DOLI agrees stating, “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.”
1300.0210 INSPECTIONS
Subp. 3. Inspection record card. The building official shall identify which inspections are required for the work requiring a permit. Work requiring a permit shall not be commenced until the permit holder or an agent of the permit holder has posted or otherwise made available an inspection record card that allows the building official to conveniently make all required entries regarding inspection of the work. This card shall be maintained and made available by the permit holder until final approval has been granted by the building official.
Subp. 4. Inspection requests. 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.
Inspectors/Reviewers never once made an entry as to inspections made, approvals or deficiencies. Mr. Gulland repeatedly made his own appointments or dropped in unexpectedly.
Incorrect/False Interpretations of the Building Code
CHANGE IN USE or CHANGE IN OCCUPANCY means a change in the character or use of an existing building or portion of a building that would place it in a different division of the same group of occupancy or in a different group of occupancies.
The gym was intended to be restored just as it was, yet Mr. Gulland insisted that a change in ownership constituted a change in use (Page 261 of the 2007 Minnesota State Building Code)
Mr. Gulland and Mr. Grace have maintained that the gymnasium constitutes a change in use per a change in ownership. Mr. Barry Greive, Senior Building Code Administrator – DOLI – disagrees with this claim. Mr. Pirila, Mrs. Francette, and their designer, Greg Hallback, have argued this point from day one. This point was discussed at length with Mr. Gulland who always held that it was a change in use. Mr. Gulland argued that new internal walls would have to built, insulated, and sheet rocked to meet new energy codes. Likewise, the roof would have to be replaced to meet energy code requirements. Mr. Gulland also suggested that new handicap accessible bathrooms would have to be built and a new ramp or lift designed to exit the west side of the gym. None of this occurred during the Townships use of the gym for 13 years of ownership. The Minnesota Department of Labor & Industry said this did not constitute a “change in use” and these codes would not apply.
Building Codes do not suggest a change in ownership constitutes a “change in use.” Mr. Gulland’s claim that a “change in ownership” also means the building must be considered “new” in nature is incorrect. This incorrect stance led to the enforcement of energy codes that were not applicable. This is a rehab (GREB) conservation project not subject to energy code requirements. Cost ~ $50,000. This will be assessed by an engineer for a professional opinion of damages.
The lending issue led to greater damage of the gym roof, leaking, and additional damage to interior floors/walls. If the property owners could have claimed income and/or income potential from this property, this damage would have been limited ~ $50,000. This will be assessed by an engineer for a professional opinion of damages.
References: Page 2, items 6 & 7, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM); Page 3, Official Communications Binder, Paragraph 3; page 4, paragraphs 1 & 5.
The MN DOLI states numerous misinterpretations of the building code by John Gulland:
“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.”
“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.”
“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.”
Unjust Denial of Temporary Certificate of Occupancy for Owners
The owners had fulfilled all of the requests of the inspector Mr. Gulland and reviewer Duane Grace for a temporary certificate, yet were denied based on new requirements.
Subp. 6. Temporary occupancy. The building official is authorized to issue a temporary certificate of occupancy before the completion of the entire work covered by the permit, provided that the portion or portions shall be occupied safely. The building official shall set a time period during which the temporary certificate of occupancy is valid.
Despite repeated requests by owners that Mr. Gulland put the requirements of a temporary certificate of occupancy in writing, Mr. Gulland refused. In fact, in the “Official Communications” binder prepared by Greg Hallback, designer, there is not a single document by Mr. Gulland. As the building codes administrator, he was directly responsible for all decision making and official correspondence.
Sources: Email on Monday, 2/16/09 at 1:07 PM from Mr. Pirila to Thomson Township (Mr. Gulland). This email requested a Temporary Certificate of Occupancy after the conditions requested by Mr. Gulland were satisfied. A request that Mr. Gulland put additional requirements in writing was requested. Email on Monday, 2/16/09 @ 1:05 PM to Mr. Gulland, Mr. Grace, and Mr. Hallback asking the same as listed in the 1:07 email. Letter dated September 9, 2008, to Mr. David C. Pritchard (incorrect on letter as Pritchett) detailing facts regarding the Thomson Township letter he authored. On page 1, second paragraph, Mr. Pirila stated, “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.”
Disparity in Rulings
John Gulland allegedly gave the Township an 18 month stay on a fire system, in this same building when they owned it, prior to their moving to their new location. Source: ESC Systems. The system they had was outdated and did not include horns within each room. This, as stated in Mr. Gulland’s own words, would be a life issue he intentionally ignored. Numerous Township employees, visitors, and renters were placed at risk knowingly.
Reference: Page 2, item 9, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM
A couple was okayed to move into a house owned by Michelle Kucinski on Meadow Lane, prior to the final inspection being done. Mr. Blomquist, the contractor, had requested an inspection but was told that Mr. Gulland was sick that day. When he asked the Township, Clerk Rhonda Klejeski, told him that “it was the owner’s prerogative whether or not they wanted to move in.” They did, and Mr. Gulland did not remove them when he found out. Pirila/Francette, on the other hand, was denied time and time again for a temporary order, even though they had twice met their (Mr. Gulland/Mr. Grace) demands. Mr. Gulland never once recorded his visits on the required postings, citing either approvals or deficiencies. Mr. Gulland repeatedly refused to put anything in writing when pressed by the owners.
Reference: Pages 1 and 2, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM
Undue Burden
Mr. Gulland/Duane Grace demanded the same supporting documentation repeatedly.
The I-Joists claim is just one of many examples of ongoing delay tactics utilized. Initially, Duane Grace (the collaborative Plan Reviewer of this project) agreed to look up the specifications of the I-Joists during a scheduled walk-through. Later, Mr. Gulland requested the information from the building owners. The first information Mr. Pirila received from the material provider (Menards) was not acceptable to Mr. Gulland. He requested specific numbers from Menards that the owners retrieved and resubmitted. Again, this was not good enough. Mr. Pirila then called the building division of the material provider in Eau Claire and the manufacturer 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. Mr. Pirila turned in yet more information on September 10, 2008, showing that no lateral support was needed. Furthermore, months after Mr. Gulland’s was supposedly satisfied, he requested more information from the architect/designer.
The I-joists were installed with 2x4’s run perpendicular to the I-joists every 8’. This was unnecessary per the manufacturer, who did not send this information originally with their fax since it was not needed. Cost ~ $500
Source: Meeting Minutes, July 8, 2008, 5:00 PM at Thomson Town Hall, item 1.
Harassment
Mr. Gulland harassed contractor Mark Blomquist, suggesting he was acting as a general contractor and questioned his work (without the benefit of specific codes to support his inquisitions). Further, he questioned him on facets of the construction of which he does not, and would not, have knowledge. Mr. Gulland resorted to attacking Mr. Blomquist personally on another job he had in the area.
Mr. Pirila sent an email on Wednesday, July 2, 2008, at 3:59 PM to Mr. Grace and Mr. Gulland in regards to the 2/11/08 meeting a the Thomson Township Hall. It included, “John, I’m more than a little upset about you suggesting that contractors I’ve hired are acting as the general contractor, when I’m the one coordinating everything. This is unethical at the very least. You have continually fished for information, even misleading others, hoping to stir up trouble and ultimately delay this project.”
Mr. Pirila sent an email to Mr. Grace on Thursday, July 3, 2008, at 9:12 AM to express his frustration in Mr. Gulland’s claims, specifically that, “What I’m most upset about is how John is inferring things that just aren’t true, such as there being a general contractor. He upsets the many people we have working for us, who dispute some of the interpretations.” Mr. Gulland insisted that someone else was acting as the general contractor, when Mr. Pirila had always been.
Reference: Page 2, item 5, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM. Letter to Mr. David C. Pritchard on September 9, 2008, P. 3, ¶ 3.
Unnecessary Costs Incurred Due to Inspector/Plan Reviewer Negligence
Arguments over a crawl space delayed the permitting process for the second phase about three months. This delayed occupancy by two lessees scheduled to be in March 1, 2009. These rents, for this period, amounted to $1,600 a month or $4,800. These renters would have also paid their own electric and propane bills, or about $40 each a month. This amounts to $240 over three months. There was also the inability to claim depreciation on these areas. The crawl space delay was unsupported by the code.
References: Official Communications Binder: Page 32, Item 29; Page 49, Item 29; Page 59, Item 2; Page 62; Email from Greg Hallback, designer, to John Gulland on 1/9/09 @ 11:45 AM, Item 2.
The unjustified delays led to higher insurance rates, due to it being considered a vacant building. Cost ~ $1,000. This will be reviewed by the insurance agent for actual damages.
1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL, Subp. 8. Phased approval. The building official may issue a permit for the construction of foundations or any other part of a building or structure before the construction documents for the whole building or structure have been submitted, provided that adequate information and detailed statements have been filed complying with pertinent requirements of the code. The holder of the permit for the foundation or other parts of a building or structure shall proceed at the holder's own risk with the building operation and without assurance that a permit for the entire structure will be granted.
The owners had requested phased approval to insulate the main floor of their building while the permit process played itself out. These were the coldest months of winter and heating costs were extremely high. Mr. Grace, Plan Reviewer, said this was possible and had allowed this in other projects himself. He said he would talk to Mr. Gulland. Mr. Gulland denied our request, demanding to have everything for a “full permit” before any work could progress. Mr. Gulland continually cited energy codes, yet maliciously denied us the opportunity to save thousands in heating costs while reducing carbon emissions.
This action resulted in thousands in heating costs, furnace problems upstairs, and freezing. Concern was reiterated to Mr. Gulland in an email on Thursday, 1/8/09 @ 12:39 PM to Thomson Township (Mr. Gulland). Cost ~ $15,000. This cost will be determined by costs incurred this year. The endless running of the furnace upstairs led to an ignition breakdown and the inevitable loss of useful life. Cost ~ $2,000.
Reference: Page 1 of 2, email from Marvin Pirila to John Gulland on 1/27/09 @ 4:19 PM
Increased architectural/design costs due to repeated requests for the same information, redrawings, and excessive visits. $10,000
Two layers of sheetrock (drywall) was required from the beginning, right up until April, 2009, and was put in about half of the hallway downstairs walls prior to the change in the inspectors rulings to just one. Additional, unneeded cost ~ $1,000
1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL, Subp. 8. Action on application. The building official shall examine or cause to be examined applications for permits and amendments within a reasonable time after filing. If the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject the application and notify the applicant of the reasons. The building official shall document the reasons for rejecting the application. The applicant may request written documentation of the rejection and the reasons for the rejection. When the building official is satisfied that the proposed work conforms to the requirements of the code and applicable laws and ordinances, the building official shall issue a permit.
Mr. Gulland and Mr. Grace took an excessive amount of time in their reviews. In fact, nearly two months each time. The building permit was only approved the first time after Mr. Pirila’s complaints to legislators, the State Attorney General, and the Department of Labor. The second time, an investigation by the Minnesota Department of Labor & Industry was requested, eventually leading to the permit. This investigation found Mr. John Gulland in violation of at least six (6) statutes/rules.
Mr. Gulland refused to put anything in writing regarding requests for Temporary Order requirements, alleged code violations, or concerns, despite numerous requests. Sources: Email on Thursday, 1/8/09 from Mrs. Gail Francette (owner) to Thomson Township (Mr. Gulland).
Mr. Gulland continually left Mr. Pirila out of communications even though he was acting as his own general contractor. See email from Mr. Pirila on Thursday, July 3, 2008, to Mr. Grace and Mr. Gulland regarding the same -- ¶ 2.
Mr. Pirila complained to Mike Jaros, House Representative, about the stall tactics and delays in receiving a building permit. See email on 2/7/08 at 10:23 PM.
False Report
Mr. Gulland presented false and misleading information to the Thomson Township attorney.
F. Mr. Gulland claimed the owners had no mechanical engineer as required. Heat Mechanical (Rick Hatanpaa) via Foehringer Engineering was in the process of doing the mechanical drawings and plumbing designs for unfinished portions of the building. The owners had previously informed Mr. Gulland they had engaged the services of a mechanical engineer.
G. Mr. Gulland claimed there was no architect on board. Mr. Gulland is and has always been very aware that designer, Greg Hallback, worked with architect Alan Adams, who has been on board, as needed, from the first day Greg became involved.
H. Mr. Gulland claimed he requested the owners have a structural engineer look at the main building. The truth was that no structural engineer had been required by Mr. Gulland at any time. He had suggested we have one look at the gym roof. We had already talked to Greg Hallback about possible structural engineers. Structural Engineer Scott Erickson was scheduled to visit on Wednesday, September 10, 2008, to review the project, but again, this was at our option only. Mr. Erickson called that Wednesday morning to say he was too busy to accept this job. John Ahmat, then visited and did a structural review of the gym roof. Mr. Ahmat and Mr. Pirila both visited the area in the main building that Mr. Gulland questioned and verbally discussed the plans for that area. Mr. Ahmat was satisfied that it was structurally sound and would be fine as discussed. No report was produced. To our knowledge the Township owned it for 13 years while Mr. Gulland worked here and never had a structural review.
I. Mr. Gulland was questioning why a plumbing inspection had not been done yet. A plumbing inspection, to our knowledge, was 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.
J. Mr. Gulland claimed the building was in violation of fire codes, yet we received no written notice or verbal communications 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 Mr. Pirila 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 asked for actual fire code violations in writing, supported by Minnesota State Statute, and received nothing.
Thomson Township officials failed to respond to our letters disputing Mr. Gulland’s claims. Not once, did they answer any counter claims. 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.
Sources: Letter from owners, Mr. Pirila and Mrs. Francette, to Lori Swanson, Attorney General’s Office. Also, letter to Mr. David Pritchard, Thomson Township attorney, on September 9, 2008 – no response was received.
Deliberate indifference was demonstrated by Thomson Township officials, particularly Mr. David Pritchard, when they knew of frequent constitutional violations, but nonetheless allowed their subordinates, or in this case contracted employee, to act without any rehabilitative warnings, discipline, or training. City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). This deliberate indifference equated to a purposeful deprivation of constitutional rights.
Gymnasium
“My assumption is the gymnasium would not require a change of use designation from A-3, since it has always served as a gymnasium. Correct me if I am wrong, but if only a facelift is needed and the criteria were met while the gymnasium served the Community Center, the same A-3 criteria will still be met. I am suggesting if the restrooms, entrances, fire exits, signage, etc. were all in conformity with the code a year ago (or so) they would still be conformity if it were still used as a gymnasium.” Source: Fax from Greg Hallback to John Gulland, ¶3, March 22, 2007.
Mr. Gulland claimed the gym was subject to energy codes and had to be in full compliance with all current codes before it could be used. This included:
- Handicapped accessible bathrooms, which he said the current ones did not comply with.
- A second handicapped exit would have to be constructed on the west side of the gymnasium
- A structural engineer would have to assess the roof
- The demand for energy codes, Mr. Gulland, said would require new walls throughout the gymnasium.
Mr. Gulland explained that our purchase constituted a “change in use” and disqualified us from using it as it had been used by the township for 13 years.
“I mentioned to the Owner the gymnasium may not require a building permit if all he was going to do was give it a face lift. The thinking here is if it was an acceptable gymnasium for the Washington Community Center to use or rent out a year ago, it would still be an acceptable gymnasium for the community to use or rent out at this time.”
Source: Fax from Greg Hallback to John Gulland, Page 2, ¶3, March 22, 2007.
“…The first phase is the gym which will still be a gym and nothing will change except for paint, maintenance caulking, and the like and will not require a building permit.” Source: Fax from Greg Hallback to John Gulland, Page 2, ¶5, March 22, 2007.
Mr. Greg Hallback emailed drawings to Mr. John Gulland and Mr. Duane Grace on December 4, 2007. Mr. Grace would acknowledge receipt on December 19, 2007.
The building permit request was submitted to Thomson Township on December 5, 2007.
Mr. Hallback requested a building permit again on January 28, 2008, after resolving all items in Mr. Duane Grace’s review. Source: Review compliance letter by Greg Hallback to Mr. Gulland and Mr. Grace.
Guidelines for Rehabilitation of Existing Structures (GREB) recognized
“My comments will be from the IBC and the MSBC, and will include Chapter 1311 of the MSBC which also adopts the Guidelines for Rehabilitation of Existing Structures known as GREB. This will be used where it is applicable.” Source: Email from Mr. Grace to Mr. Alan Adams (architect), Greg Hallback (designer), and Mr. Gulland, December 11, 2008, P. 2. Even though acknowledged, GREB guidelines were not followed.
Owners Requested that Building Inspector be removed from Project
Mr. Pirila sent an email to Mr. Grace on Thursday, July 3, 2008, at 9:12 AM to express his frustration in the process and about requesting a different building inspector to replace Mr. Gulland.
An email from Mr. Pirila on Thursday @ 8:23 AM, 9/11/08, to Mr. David Pritchard, Thomson Township attorney included, “To avoid further complications, we’d like you to consider removing John Gulland from our project and assigning another inspector…This is, of course, at the discretion of the Township, and I have requested this before in hopes of avoiding this situation.” No response received.
Incompetence, Negligence, and Gross Negligence
Mr. Gulland failed to conform to minimal standards of acceptable practice for a building inspector. Mr. Gulland failed to exercise the degree of care rendered appropriate by the particular circumstances and that an individual of ordinary prudence in the same situation and with equal experience would not have omitted. The intentional failure to perform a manifest duty affecting the life or property of another, such as Mr. Gulland and Mr. Grace did, constitutes “gross negligence.” Mr. Gulland’s egregious behavior dismisses the rights afforded to an inspector who “acts in good faith.” Mr. Gulland, at no time, acted within the framework a reasonable person would consider “good faith.”
Retaliation for State Investigation
After the owners initiated a state investigation, Mr. Gulland began visiting the project every Thursday at 4:00 p.m. with architect Alan Adams. These visits were not requested by the owners and clearly retaliatory. These visits required the owners to leave work early (when they could) to attend. Mr. Gulland claims Mr. Adams made these appointments, yet he attended knowing that the owners were not in favor of these “punishment visits” that did little or nothing to get the project moving. In fact, Mr. Gulland made no attempts to contact either Mr. Pirila or Mrs. Francette about scheduled visits. The architect had no authorization from the owners to arrange meetings. Mr. Gulland was fully aware of this situation after the first week, yet still attended the second week. The same items were covered again, without additional progress being made. Mr. Pirila told Mr. Gulland again that he would call him for an inspection when needed.
Sources: Email from Mr. Pirila to Mr. Alan Adams, Mr. Greg Hallback, and Thomson Township (Mr. Gulland) on Tuesday 3/24/09 @ 8:07 PM; Email on Tuesday, 3/24/09 @ 9:47 AM from Mr. Pirila to Thomson Township, Mr. Gulland, and Mr. Hallback. Email on Wednesday, 3/18/09 @ 7:52 PM from Mr. Pirila to Mr. Hallback, Mr. Adams, and Thomson Township. Email on Wednesday, 3/18/09 @ 5:20 PM from Mr. Hallback to Mr. Adams, Thomson Township, and Mr. Pirila.
This practice was reported to Barry Grieve, MN DOLI investigator, who said they were not done on his behalf. Mr. Grieve said he would call them about the same.
Ethical Violations
Mr. 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).
Mr. Gulland made the statement to Greg Hallback, designer, that the Township needed time to get reestablished after moving – made in reference to the gym status.
1300.0110 DUTIES AND POWERS OF BUILDING OFFICIAL
Subp. 9. Liability. The building official, member of the Board of Appeals, or employee charged 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 and is relieved from personal liability for any damage accruing to persons or property as a result of any act or by reason of an act or omission in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by that officer or employee in the lawful discharge of duties and under the code shall be defended by the legal representative of the jurisdiction until the final termination of the proceedings. The building official or any subordinate is not liable for cost in any action, suit, or proceeding that is instituted in pursuance of the code.
The record shows the lack of good faith and malice shown by Mr. John Gulland and Thomson Township officials. Mr. Gulland’s actions, and the lack of action by Thomson Township officials, suggests the desire to delay this project, and cripple Mr. Pirila/Mrs. Francette financially. By delaying their project the Township benefitted by greater rental fees for their community area.
The grounds for suit stem from Mr. Gulland’s actions and behavior which include:
- Fraud, deceit, and dishonesty in the performance of his duties
- Failure to perform his duties in a professional manner
- Failure to perform his duties in a timely manner
- Failure to apply the code in a consistent and uniform manner
- Failure to follow or enforce a published interpretation
- Failure to be of good moral character
- Incompetence
- Negligence in the performance of his duties
- Committed acts of gross negligence in the performance of his duties
- Exercised poor judgment in the performance of his duties
- Wanton/reckless disregard of the rights of others
- Violated civil rights of others
- Violated constitutional property rights
Reimbursement for all legal associated costs. Court costs, prejudgment interest, and all other costs that a court may assess must be included within the damage limit specified by this section.
We are seeking compensation for all of the before-mentioned damages, court costs, and punitive damages, to the maximum extent possible. We have tried extensively to avoid such damages through contacts with Thomson Township and were ignored.
Respectfully,
s/Marvin Pirila
Marvin Pirila & Gail Francette
1 N Cloquet Rd W
Esko, MN 55733
marvindp@msn.com
(218) 391-2876
APPENDIX M
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The Constitutionality of the MGDPA and Statute 466.02 Clarification
_____________ _
09-CV-10-934
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Marvin Pirila & Gail Francette
1 N Cloquet Rd W
Esko, MN 55733
September 2, 2011
Lori Swanson, Attorney General
Minnesota Attorney General's Office
1400 Bremer Tower
445 Minnesota Street
St. Paul, MN 55101
Dear Lori Swanson,
One: In their petition to the Supreme Court, petitioners Marvin Pirila and Gail Francette are challenging the constitutionality of the Data Practices Act. This case is Appellate Court Case No. A11-276, Petitioners, Marvin Pirila & Gail Francette v. Respondents, Thomson Township, Thomson Township Fire Department, John Gulland, Duane Grace, Jeffrey Juntunen.
Only five metropolitan areas are required to follow the Data Practices Act, leaving all citizens outside of those areas at the mercy of townships and cities. In our case, Thomson Township agreed to provide information voluntarily, and then never delivered on that promise, despite numerous requests. A legislator said they amended the reach of the Data Practices Acts reach to alleviate costs for smaller municipalities and townships and those excluded were to provide the information voluntarily. This was a big mistake as there are no repercussions for their failure to provide transparency to their actions. This is a violation of the public citizens’ right to know what his and her taxes are paying for. Ironically, after discovering they were not subject to the Data Practices Act, Thomson Township suddenly would not provide the information requested. However, during legal discovery they used the objection that the Data Practices Act forbade them from sharing information. On one hand, they do not have to provide information because they are not subject to the Data Practices Act, and on the other, they do not have to give the information because of the Data Practices Act. Gamesmanship and secrecy is all we received.
The Act is unconstitutional, we argue, because it is not serving the citizens of this state equally.
Two: Petitioners are also arguing that the Exceptions to Immunity under 466.02 require clarification, as they are unrecognized by the lower courts. Almost every exception to immunity applied in this matter, yet the lower courts ignored them in favor of granting immunity.
Three: We find equally appalling that the lower courts do not allow Admissions to be admitted when the other party fails to submit them on time. We would like the constitutionality of this matter addressed by the Supreme Court.
Minnesota is holding onto old interpretations of these matters, long ago abandoned by other states that realized the importance of holding public officials accountable for malicious conduct.
Respectfully,
/s Marvin Pirila
Marvin Pirila
Marvin Pirila and Gail Francette, pro se
1 N Cloquet Rd W
Esko, MN 55733
(218) 391-2876
marvindp@msn.com
