11-1005-12810-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of the Residential Building Contractor’s License of Perform Contracting of MN, LLC
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for prehearing conference before Administrative Law Judge Barbara L. Neilson on May 11, 2000, at 2:00 p.m. at the Office of Administrative Hearings in Minneapolis, Minnesota. Jennifer S. Kenney, Assistant Attorney General, Suite 1200, 445 Minnesota Street, St. Paul, Minnesota 55101-2130, appeared on behalf of the Department of Commerce ("the Department"). There was no appearance by or on behalf of the Respondent, Perform Contracting of MN, LLC, 12559 Europa Avenue North, White Bear Lake, MN 55110. The record closed at the conclusion of the prehearing conference on May 11, 2000.
This Report is a recommendation, not a final decision. The Commissioner 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 James C. Bernstein, Commissioner, 133 East Seventh Street, St. Paul, Minnesota 55101, telephone: (651) 296-6694, to ascertain the procedure for filing exceptions or presenting argument.
STATEMENT OF ISSUE
The issue in this case is whether the Respondent, Perform Contracting of MN, LLC, failed to perform repairs to a customer’s home necessary for compliance with the building code and failed to request the required inspections from the City of St. Paul, in violation of Minn. Stat. § 326.91, subd. 1(6), and failed to pay Allstar Disposal for two dumpsters it supplied, in violation of Minn. Stat. § 326.91, subd. 1(8); and, if so, whether the Respondent’s residential building contractor license should be revoked or suspended or whether the Respondent is otherwise subject to discipline and/or civil penalties pursuant to Minn. Stat. §§ 45.027, subds. 6 - 7, and 326.91.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The Notice of and Order for Hearing and Notice of Pre-Hearing Conference and Statement of Charges in this matter was served upon the Respondent by certified mail and first class U.S. mail on March 17, 2000, at the following address: Douglas Hoppe, Qualifying Person, Perform Contracting of MN, LLC, 12559 Europa Avenue North, White Bear Lake, MN 55110. This address is the Respondent’s last known address on file with the Department of Commerce. The Notice sent by certified mail was declined and returned to the Office of the Attorney General. The Notice sent by U.S. mail was not returned to the Office of the Attorney General.
2. The Notice of and Order for Hearing and Notice of Pre-Hearing Conference and Statement of Charges served on the Respondent scheduled a prehearing conference for May 11, 2000, at 2:00 p.m. and contained the following informational notice:
If Respondent fails to attend or otherwise appear without the prior consent of the judge at any pre-hearing 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 license may be revoked or suspended and/or a civil penalty may be imposed against Respondent without further proceedings.
(Emphasis in original.)
3. The Respondent did not file any Notice of Appearance with the Administrative Law Judge or make any request for a continuance or any other relief. The Respondent did not appear at the prehearing conference scheduled for May 11, 2000, or have an appearance made on its behalf. The Respondent also did not contact the Administrative Law Judge between May 11, 2000, and the date on which this Report was issued.
4. Because the Respondent failed to appear at the prehearing conference in this matter, it is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing and Notice of Pre-Hearing Conference and Statement of Charges 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 Minnesota Department of Commerce and the Administrative Law Judge have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 45.027, and 326.91.
2. The Department has given proper notice of the prehearing conference in this matter and has fulfilled all relevant substantive and procedural requirements of law and rule.
3. The Respondent, having made no appearance at the prehearing conference, and not requesting any continuance or relief, is in default. Pursuant to Minn. Stat. § 1400.6000, the allegations contained in the Notice of and Order for Hearing and Notice of Pre-Hearing Conference and Statement of Charges are hereby taken as true.
4. The Respondent has violated Minn. Stat. § 326.91, subds. 1(6) and (8). The Respondent is subject to discipline and/or civil penalties pursuant to Minn. Stat. §§ 45.027, subds. 6 and 7, and 326.91.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RESPECTFULLY RECOMMENDED that the Commissioner of Commerce take disciplinary action against the Respondent and impose an appropriate civil penalty.
Dated: May 18, 2000
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BARBARA L. NEILSON
Administrative Law Judge
Reported: Tape Recorded (one tape).
Under 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 or as otherwise provided by law.