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9-1005-12666-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF COMMERCE
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In the Matter of James E. Fox, d/b/a J. Fox Construction |
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION |
The above-entitled matter came on for prehearing conference before Administrative Law Judge Phyllis A. Reha on February 23, 2000 at 2:00 p.m. at the Office of Administrative Hearings, 100 Washington Square, Suite 1700, 100 Washington Avenue South, Minneapolis, Minnesota 55401.
Patrick M. Driscoll, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130, appeared on behalf of the Department of Commerce. There was no appearance by or on behalf of the Respondent, James E. Fox, d/b/a J. Fox Construction, 1182 Jefferson Street, Shakopee, Minnesota, 55379.
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. Pursuant to 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 and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the Commissioner. Parties should contact the Commissioner of Commerce, 133 East Seventh Street, St. Paul, Minnesota 55101, telephone (651) 297-3238 for information on filing exceptions and presenting argument.
STATEMENT OF ISSUE
The issue in this contested case proceeding is whether the Commissioner of Commerce should take adverse action against James E. Fox for engaging in unlicensed residential building contractor activity.
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. James E. Fox, d/b/a J. Fox Construction (“Respondent”) held residential building contractor license number 7664, which expired on March 31, 1993 and has not been renewed.
2. On April 23, 1996, the Commissioner issued a Cease and Desist Order against Respondent prohibiting him from conducting the business of a licensed contractor without being properly licensed.
3. The Department was informed that on January 30, 1999, James E. Fox, d/b/a J. Fox Construction, advertised in the Shakopee Mint that he was a "licensed and insured" residential building contractor.
4. On February 17, 1999, the Department received a complaint from homeowners who had entered into a contract with Respondent. In that contract Respondent agreed to provide residential building contractor services.
5. The Notice of and Order for Hearing in this matter was served upon the Respondent, James E. Fox, by first class and certified mail. That Notice scheduled a prehearing conference for February 11, 2000 at the Office of Administrative Hearings.
6. The Notice of and Order for Hearing mailed to the Respondent included the following notice in bold-face type on page 4:
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 Respondent’s residential building contractor certificate of exemption may be revoked or suspended, Respondent may be censured and/or a civil penalty may be imposed against Respondent without further proceedings.[1]
7. The Respondent requested a continuance of the prehearing conference due to a death in his family. The continuance was granted and the prehearing conference was rescheduled to February 23, 2000.[2] The letter from the Administrative Law Judge setting the new date stated that "Failure to attend the February 23, 2000 prehearing conference may result in a default action being entered in this matter."[3]
8. Respondent did not appear at the prehearing conference scheduled for February 23, 2000, or have an appearance made on his behalf. Respondent did not request a continuance or any other relief prior to that hearing conference.
9. Because Respondent failed to appear at the February 23, 2000 prehearing conference in this matter, he is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing are hereby taken as true and incorporated into these Findings of Fact.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Commissioner of Commerce and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 45.027, and 326.91, subd. 1.
2. The Department gave proper notice of the hearing in this matter and fulfilled all relevant substantive and procedural requirements of law or rule.
3. The Respondent, having made no appearance at the February 23, 2000 prehearing conference, and not requesting a continuance or other relief, is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing are hereby taken as true.
4. The conduct described in the Notice of Hearing constitutes violations of Minn. Stat. § 45.027, subd. 1a, Minn. Stat. § 326.91, subd. 1(5), and Minn. R. 2891.0040, subp. 1, items (B) and (F).
5. As a result of Conclusion 4 above, the Commissioner may take disciplinary action, including the imposition of a civil penalty against Respondent pursuant to Minn. Stat. § 45.027, subds. 5b and 6, and Minn. Stat. § 326.91, subd. 1(5). Such disciplinary action is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RESPECTFULLY RECOMMENDED that appropriate disciplinary action be taken against James E. Fox, d/b/a J. Fox Construction.
Dated this _12th_ day of May, 2000.
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/s/ Phyllis A. Reha |
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PHYLLIS A. REHA |
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Administrative Law Judge |
Pursuant to 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.
Reported: Default.