OAH Docket No. 12-1004-15528-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE COMMISSIONER OF COMMERCE

 

 

In the Matter of the Insurance Agent License of Christopher Skelton, doing business as Skelton Insurance Services, Inc., License No. 61692

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

 

 

Administrative Law Judge Steve M. Mihalchick conducted a hearing in this contested case proceeding beginning at 9:30 a.m. on Monday, September 15, 2003, at the Office of Administrative Hearings, 100 Washington Square, Suite 1700, 100 Washington Avenue South, Minneapolis, Minnesota 55401-2138.

          Michael J. Tostengard, Assistant Attorney General, Suite 900 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127, represented the Department of Commerce at the hearing.  The Licensee, Christopher Skelton, did not appear at the hearing, nor did anyone appear at the hearing on his behalf.  The record closed on September 15, 2003, when the hearing ended.

 

NOTICE

          This Report is a recommendation, not a final decision.  The Commissioner of the Minnesota Department of Commerce will make the final decision after a review of the record.  The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation.  Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact the office of Glenn Wilson, Commissioner, Department of Commerce, 85 Seventh Place East, Suite 500, St. Paul, Minnesota 55101, to learn the procedure for filing exceptions or presenting argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.  In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

 

STATEMENT OF THE ISSUE

          Whether the Commissioner of Commerce should take disciplinary action against Christopher Skelton’s insurance agent license and assess a civil penalty against him for violating Minnesota’s licensing statutes and rules.

 

          Based upon the record in this matter, the Administrative Law Judge (ALJ) makes the following:

 

FINDINGS OF FACT

1.               On August 20, 2003, the Department initiated this contested case proceeding by serving Christopher Skelton with the Notice of and Order for Hearing, Statement of Charges and Summary Suspension (hereinafter “Notice of Hearing”) by first class U.S. Mail directed to the address that he had registered with the Department, that is: 28698 Lakewood Drive N.W., Isanti, Minnesota 55040.[1]

2.               The Notice of Hearing scheduled a hearing in this contested case proceeding beginning at 9:30 a.m. on Monday, September 15, 2003.  The Notice of Hearing also contained the following warning in boldface type:

If Respondent fails to attend or otherwise appear at any prehearing conference, settlement conference, or hearing in this matter without the prior consent of the judge, or fails to comply with any interlocutory order of the judge after having been served with a copy of this Order, Respondent shall be deemed in default and the allegations or issues set forth herein may be deemed proved, and Respondent’s license may be revoked or suspended, Respondent may be censured and/or a civil penalty may be imposed against Respondent without further proceedings.[2]

3.               Neither Christopher Skelton nor anyone else representing him appeared at the September 15, 2003 hearing, nor did he make a request to the ALJ to be excused from appearing at that hearing or to have it rescheduled for a later date.

4.               Mr. Skelton’s failure to appear or request to be excused constitutes a default within the meaning of Minn. Rule 1400.6000 and the Notice of Hearing.

5.               Because of Mr. Skelton’s default, the facts alleged in the Notice of Hearing are taken as true, and the ALJ incorporates those facts into these Findings by reference.

 

 

          Based upon these Findings of Fact, the ALJ makes the following:

 

CONCLUSIONS

          1.       The Administrative Law Judge and the Commissioner of Commerce are authorized to conduct this proceeding, to consider the issues raised here, and to make findings, conclusions, and orders.[3]

          2.       The Department has complied with all substantive and procedural requirements for maintaining this contested case proceeding.

          3.       Mr. Skelton was given proper and timely notice of the hearing that was scheduled for September 15, 2003, but he failed to appear.

4.       Under the rules of the Office of Administrative Hearings, Mr. Skelton is in default because he failed to appear at the scheduled hearing without being excused by the ALJ. [4]

5.       Under those rules, when a party defaults, the ALJ may take the facts alleged in the Notice of Hearing as true and no longer in dispute.

6.       Based upon the facts alleged in the Notice of and Order for Hearing, which the ALJ has taken as true, Mr. Skelton has violated Minnesota’s insurance agent licensing statutes and rules.[5]  The law therefore allows the Commissioner to take disciplinary action against her and to assess a civil penalty.

7.       Taking adverse action against Mr. Skelton’s insurance agent license and assessing a civil penalty would be in the public interest.

 

          Based upon these Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

          The Administrative Law Judge recommends that the Commissioner take disciplinary action against the insurance agent license of Christopher Skelton and against and assess a civil penalty, as may be appropriate.

 

 

Dated this 19^th day of September 2003.

 

 

/s/ Steve M. Mihalchick                  STEVE M. MIHALCHICK

Administrative Law Judge