Greg Haage, d/b/a and on behalf of ``Up Front,'' Appellant, vs. Ken Steies, d/b/a K.J.'s and Bo Bogotty and Bo's Productions, Inc., Respondents.
Annotate this Case
State of Minnesota
in Court of Appeals
C3-96-749
Greg Haage, d/b/a and on behalf of ``Up Front,''
Appellant,
vs.
Ken Steies, d/b/a K.J.'s and Bo Bogotty and Bo's Productions, Inc.,
Respondents.
Filed October 15, 1996
Affirmed
Lansing, Judge
Anoka County District Court
File No. C8914241
Richard I. Diamond, Diamond, Liszt & Grady, P.A., 9855 West 78th Street, Suite
210, Minneapolis, MN 55344 (for Appellant)
Joseph J. Dudley, Jr., Brent G. Eilefson, Dudley and Smith, P.A., 2602
American Bank Building, 101 East Fifth Street, St. Paul, MN 55101 (for
Respondents)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and
Willis, Judge.
Syllabus
A musician seeking the return of the commissions he paid to his unlicensed
agent does not have standing to sue his agent under Minnesota's entertainment
agency licensing statutes, Minn. Stat. §𨴐A.01-.20 (1992), because
these statutes do not provide a private right of action for failure to obtain
a license.
Affirmed.
Opinion
LANSING, Judge (Hon. Stephen L. Muehlberg, District Court Trial Judge)
The district court denied Greg Haage standing to sue for return of commissions
under Minn. Stat. §𨴐A.01-.20 (1992). Haage appeals, asserting that
chapter 184A provides a musician a private right of action against an
unlicensed entertainment agent. Because the statutes neither explicitly nor
impliedly create a private right of action for failure to obtain a license, we
affirm the dismissal for lack of standing.
Facts
Greg Haage is a band leader and professional musician. Haage sued his
entertainment agent, Bo Bogotty, and a club owner for breach of contract,
overpayment of commissions, and breach of fiduciary duty. Haage settled his
claims against the club owner. He then obtained the district court's approval
to amend his complaint to assert an additional cause of action against Bogotty
for violation of Minn. Stat. §𨴐A.01-.20, Minnesota's entertainment
agency licensing statutes. Haage sought the return of all commissions he paid
to Bogotty during their professional relationship, claiming Bogotty was not
entitled to those commissions because he violated the statutes by failing to
obtain a license.
Ruling on a pretrial motion, the district court dismissed Haage's claim under
chapter 184A, concluding that Haage lacked standing to sue because the
statutes neither expressly nor impliedly create a private right of action.
Haage and Bogotty resolved Haage's common law claims, and Haage appeals solely
on the issue of his standing to sue under chapter 184A.
Issue
Do Minn. Stat. §𨴐A.01-.20 (1992) create a private right of action
for a musician to recover commissions paid to an unlicensed entertainment
agent?
Analysis
Minnesota Statutes sections184A.01-.20 (1992) provide that individuals and
business entities acting as entertainment agencies must obtain a license from
the Minnesota Department of Labor and Industry. Violation of these sections is
a misdemeanor and can result in a monetary penalty, imprisonment up to 60
days, or both. Minn. Stat. 𨴐 A. 20. chapter 184A expressly grants
enforcement powers to the Department of Labor and Industry. Minn. Stat.
𨴐 A. 16. Relying on these statutes, Haage sued Bogotty for the return of
more than $80,000 in commissions he paid to Bogotty while Bogotty was an
unlicensed agent. Haage's allegation that he is entitled to a refund of all
commissions is based solely on Bogotty's failure to obtain the required
license.
A right of action that does not exist at common law cannot be created from
regulatory statutes that do not expressly or impliedly identify a statutory
right of action. Hoppe by Dykema v. Kandiyohi County, 543 N.W.2d 635,
638 (Minn. 1996) (citing Larson v. Dunn, 460 N.W.2d 39, 47 n.4 (Minn.
1990) ). Unless a statute manifests a legislative intent to modify, statutes
are presumed not to alter the common law. Agassiz & Odessa Mut. Fire Ins.
v. Magnusson, 272 Minn. 156, 166, 136 N.W.2d 861, 868 (1965). Principles
of judicial restraint weigh against recognizing statutory rights of action
that are not clearly expressed or implied by the legislation. Bruegger v.
Faribault County Sheriff's Dep't, 497 N.W.2d 260, 262 (Minn. 1993).
Haage concedes that chapter 184A does not explicitly provide a private right
of action to recover fees from an unlicensed entertainment agent and that his
right of action must arise by implication. Minnesota courts are reluctant to
imply a private right of action. See Hoppe, 543 N.W.2d at 638 (no
private right of action under the Vulnerable Adults Reporting Act); Semrad
v. Edina Realty, 493 N.W.2d 528, 532 (Minn. 1992) (no private right of
action under the Real Estate Brokers Act because enforcement provisions
indicated a legislative intent to preclude private right of action); Larsen
v. Wright County Human Serv. Agency-Day Care Div., 526 N.W.2d 59, 61-62
(Minn. App. 1995) (no private right of action for state's failure to inspect
day-care provider's insurance records because no express mention or clear
implication of such a right in the licensing statute), review denied
(Minn. Mar.14, 1995); Counties of Blue Earth v. Department of Labor &
Ind., 489 N.W.2d 265, 268 (Minn. App. 1992) (no private right of action
under the Prevailing Wage Statute because no indication that the legislature
so intended).
In support of his argument to imply a private right of action, Haage points
out that he belongs to the class for whose benefit chapter 184A was enacted, a
civil remedy is consistent with the underlying purpose of the enactment, and
the statutes establish a standard of care that could apply to a civil action.
See Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088 (1975)
(describing factors to consider when implying a private right of action).
To show that the legislature intended to protect musicians from unlicensed
agents and to prove that a civil remedy is consistent with the statutes, Haage
provided the district court with a 1995 affidavit of the co-author and sponsor
of the entertainment agency licensing bill. The affidavit stated that the co-
author introduced the bill in 1983 because he had discovered evidence that
unscrupulous agents were taking advantage of young musicians by charging
unearned or unconscionable commissions, and he believed that it was ``within
the contemplation of the statute'' to permit musicians to sue for the return
of commissions based on a violation of chapter 184A.
The intention of the legislature can be ascertained by considering, among
other things, the contemporaneous legislative history of statutes.
Minn. Stat. 𨻝.16 (1994). Contemporaneous legislative history may
include events leading up to the introduction of the act, the history of the
act's passage, and any modifications made during the course of the bill's
passage. Laue v. Production Credit Ass'n, 390 N.W.2d 823, 828 (Minn.
App. 1986) (citing Sevcik v. Commissioner of Taxation, 257 Minn. 92,
103, 100 N.W.2d 678, 687 (1959) ) (no deference to statements of legislative
intent made subsequent to the passage of an act, even when the declarant was a
legislator when the bill was in the process of passage); See also
Investment Co. Inst. v. Hatch, 477 N.W.2d 747, 751-52 (Minn. App. 1991)
(affidavit created seventeen years after a bill's passage and in anticipation
of litigation does not reflect the intent of the legislature). The affidavit
in this case is not contemporaneous legislative history within the meaning of
Minn. Stat. 𨻝.16, and we agree with the district court's ruling that it
cannot be used to infer the intent of the 1984 Minnesota Legislature. The
legislative history prepared by the House Research Department, which Haage
also presented to the district court, would provide evidence of legislative
intent, but is silent on the issue of a private right of action.
Even if we accepted that a civil remedy is consistent with chapter 184A's
purpose and that Haage is among the group intended to be protected, Haage must
still demonstrate a legislative indication of an intent to create a private
right of action. See Flour Exch. Bldg. v. State, 524 N.W.2d 496, 499
(Minn. App. 1994) (there must be some indication, in legislative history or
elsewhere, that a private right of action should be available), review
denied (Minn. Feb. 14, 1995). Haage points to two sections of chapter 184A
as demonstrating the legislature's intent. The first requires an entertainment
agency to repay an artist any fee obtained for employment when no employment
is obtained or the artist is unpaid. Minn. Stat. § 184 A. 18, subd. 3. The
second section, Minn. Stat. § 184 A. 18, subd. 4, specifically allows an
action on a licensee's bond. Neither of these sections pertains to the right
to recover fees paid to an unlicensed agent. Both refer to contract actions
that are generally available under the common law. These provisions are not
indicative of a legislative intent to allow a civil action for forfeiture of
commissions. To the contrary they may demonstrate that the legislature
identified and listed the available civil litigation. Jeffers v. Convoy
Co., 636 F. Supp. 1337, 1341 (D. Minn. 1986) (finding that no civil right
of action was impliedly created by a statute that provided a misdemeanor
penalty for its violation). We discern no standard for other actions and even
so, creating a standard will not, in itself, imply a right of action. A common
law right of action must already exist. Bruegger, 497 N.W.2d at 262;
See also Lorshbaugh v. Township of Buzzle, 258 N.W.2d 96, 98, 102
(Minn. 1977) (inspection statute did not create a new right of action, but
described standard of care for common law negligence claim). In this case
there is no already-existing, common law right of action against entertainment
agents for failure to obtain a license.
At oral argument Haage pointed to evidence that during the effective period
only eight licenses have been issued and that currently there are no active
entertainment agency licenses in Minnesota. Haage argues that recognizing a
civil right of action for forfeiture of fees by unlicensed agents will assure
the enforcement of chapter 184A. Although we agree that this interpretation
might increase compliance, it is not one of the factors traditionally relied
on in determining whether statutes create a private right of action, and
failure to enforce may be addressed by legislative or administrative remedies.
Decision
Minn. Stat. §𨴐A.01-.20 (1992) do not provide a private right of
action, and a musician lacked standing under chapter 184A to sue his
unlicensed entertainment agent for the return of commissions.
Affirmed.
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