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OAH 2-1004-22052-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of the Title License (No. 48777), Abstractor’s Company License (No. 274); Real Estate Closing License (No. 40073555); and Notary Commission (No. 6140847) of Linda Tuttle-Olson; and the Abstract Company License (No. 4) of Freeborn County Abstract Company d/b/a Albert Lea Abstract Co. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on before
Administrative Law Judge Raymond R. Krause (“ALJ”) on June 16, 2011, for a
prehearing conference at the Office of Administrative Hearings,
Michael J. Tostengard, Assistant Attorney General, appeared on behalf of the Minnesota Department of Commerce (“Department”). The Respondent, Linda Tuttle-Olson, did not appear in person or by counsel. The record closed upon the Respondent’s default on June 16, 2011.
The Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges were sent to the Respondent at the address found on the service list and were not returned as undelivered. In addition, the Administrative Law Judge sent a letter with information for the Respondent. That letter was not returned as undelivered.
STATEMENT OF ISSUE
1. Did Respondent engage in conduct, including
misappropriation of funds, check kiting, comingling trust fund accounts in
violation of Minn. Stat. §§ 60K.43, subd. 1(4) and (8); 82.82, subd. 1(b)
and (f); and 82.81, subd. 12(12)?
2. Did the Respondent fail to observe high
standards of commercial honor, breach her fiduciary responsibility, engage in
fraudulent, deceptive or dishonest practices and be shown to be incompetent,
untrustworthy, or financially irresponsible in violation of Minn. Stat. §§ 60K.43,
subd.1(8); 82.82, subd. 1(b) and (f) as well as Minn. R. 2795.1000 and
2795. 1300?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF
FACT
1.
On May 2, 2011, the Notice of and Order for Hearing, Order
for Prehearing Conference, Order to Show Cause, and Statement of Charges, and the
Notice of Appearance were sent by first class mail to Linda Tuttle-Olson. They were not returned to the Department.
2.
The Respondent failed to appear at the prehearing
conference, did not obtain the ALJ’s prior approval to be absent from the
prehearing conference, did not file a Notice of Appearance, and did not request
a continuance or any other relief.
3.
The Notice of and Order for Hearing and Notice of Prehearing
Conference contained the following informational warning:
Respondent’s failure to appear at the prehearing conference may result in
a finding that the Respondent is in default, that the Department’s allegations
contained in the Statement of Charges may be accepted as true, and its proposed
disciplinary action may be upheld.
4.
Because Respondent failed to appear, she is in default.
5.
Pursuant to Minn. R. 1400.6000, the allegations contained in
the Notice of and Order for Hearing and Notice of Prehearing Conference are
taken as true and incorporated by reference into these Findings of Fact.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner of Commerce
are authorized to consider the charges against Respondent under Minn. Stat. §§
58.12; 45.024; 45.027; 82.82, and 14.50 (2004).
2.
Respondent received due, proper and timely notice of the
charges against it, and of the time and place of the prehearing
conference. This matter is, therefore,
properly before the Commissioner and the Administrative Law Judge.
3.
The Department has complied with all relevant substantive
and procedural legal requirements.
4.
Under Minn. R. 1400.6000, a contested case may be decided
adversely to a party who defaults. On
default, the allegations of and the issues set out in that Notice of and Order
for Hearing or other pleading may be taken as true or deemed proved without
further evidence.
5.
The Respondent is in default herein as a result of her
failure, without the ALJ’s prior consent, to appear at the prehearing
conference.
6.
Respondent engaged in conduct, including misappropriation of
funds, check kiting, comingling trust fund accounts in violation of Minn. Stat.
§§ 60K.43, subd. 1(4) and (8); 82.82, subd. 1(b) and (f); and 82.81, subd.
12(12).
7.
Respondent failed to observe high standards of commercial
honor, breached her fiduciary responsibility, engaged in fraudulent, deceptive
or dishonest practices and was shown to be incompetent, untrustworthy, or
financially irresponsible in violation of Minn. Stat. §§ 60K.43, subd.1(8);
82.82, subd. 1(b) and (f) as well as Minn. R. 2795.1000 and 2795. 1300.
8.
Disciplinary action against the Respondent is in the public
interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED: that the Commissioner of the Department of Commerce impose appropriate
discipline upon the Respondent.
Dated: June 28, 2011
s/Raymond R. Krause
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RAYMOND
R. KRAUSE Chief
Administrative Law Judge |
Reported: Default (no recording)
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 the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been made available
to the parties to the proceeding 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
Michael Rothman, Commissioner, Department of Commerce,
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. 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.