1-1005-12221-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF COMMERCE

 

In the Matter of Adam Overby,

Individually and d/b/a Expert Roofing

FINDINGS OF FACT,

CONCLUSIONS AND

RECOMMENDATION

            The above-entitled matter came on for a prehearing conference before Administrative Law Judge George A. Beck  commencing at 2:00 p.m. on July 8, 1999, at the Office of Administrative Hearings, 100 Washington Square, 100 Washington Avenue South, Suite 1700, Minneapolis, Minnesota 55401-2138.

David M. Aafedt, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101, appeared  on behalf of the Minnesota Department of Commerce (“Department”).  Respondent did not appear at the hearing.  The record closed on July 12, 1999 upon receipt of a letter from the Department.

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 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 David Jennings, Commissioner, Minnesota Department of Commerce, 133 East Seventh Street, St. Paul, Minnesota 55101, to ascertain to procedure for filing exceptions or presenting argument.

 

STATEMENT OF ISSUE

The issue in this case is whether or not Respondent engaged in unlicensed residential building contractor, remodeler or roofer activity and/or violated a consent Cease and Desist Order and/or engaged in fraudulent, deceptive, dishonest practice and/or is incompetent, untrustworthy, or financially unresponsible.

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

            FINDINGS OF FACT

1.      On May 12, 1999, the Minnesota Commissioner of Commerce issued a Notice of and Order for Hearing and Notice of Prehearing Conference in this case.

2.      On May 12, 1999, a copy of the Notice of and Order for Hearing and Notice of Prehearing Conference and Notice of Service of Process in this matter were sent via certified U.S. mail to Respondent pursuant to Minn. Stat. § 45.028, subd. 2.

3.      The notice of service and copy of the process sent to Respondent at its last known address were subsequently returned to the Attorney General unclaimed.  A note on the envelope indicated Respondent had moved and left no forwarding address.

4.      On June 9, 1999, a copy of the Notice of and Order for Hearing and Notice of Prehearing conference was sent by certified mail to the Office of the Commissioner pursuant to Minn. Stat. § 45.028, subd. 2.

5.      The Department’s Affidavit of Compliance was filed on July 12, 1999.

6.      The Notice of and Order for Hearing and Notice of Prehearing Conference mailed to Respondent contained the following statement:

If Respondent fails to attend or otherwise appear at any prehearing conference, settlement conference, or hearing in this matter, 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 a civil penalty may be imposed against Respondent without further proceedings.

7.      Respondent did not appear at the July 8, 1999 prehearing conference, made no prehearing request for continuance, nor did he file a Notice of Appearance.

8.      The allegations of the Notice of and Order for Hearing and Notice of Prehearing conference are deemed proved and incorporated into these Findings by reference.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1.                  The Minnesota Commissioner of Commerce and the Administrative Law Judge have subject matter jurisdiction herein pursuant to Minn. Stat. § § 45.027, 326.91, and 14.50.

2.                  Respondent was given timely and proper notice of the hearing in this matter.

3.                  The Department has complied with all relevant substantive and procedural requirements of statute and rule.

4.                  Under Minn. R. 1400.6000, respondent is in default as a result of its failure to appear at the scheduled prehearing conference.

5.                  Under Minn. R. 1400.6000, the allegations and the issues set out in the Notice of and Order for Hearing and Notice of Prehearing Conference may be taken as true or deemed proved when a party defaults.

6.                  Based upon the facts set out in the Notice of and Order for Hearing and Notice of Prehearing conference, Respondent has violated Minn. Stat. § § 326.84, 326.842, 326.91, subd. 1(2), 326.91, subd. 1(5) and 326.91, subd. 1(6).

7.                  An order is in the public interest.

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

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that action be taken against Respondent and that the Commissioner consider civil penalties.

 

Dated this

13th

day of

July

1999.

 

                                                                             

S/ George A. Beck

GEORGE A. BECK

Administrative Law Judge

 

 

NOTICE

 

            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.

 

Reported:  Default.