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BC2002613/GL, BC2003919/GL |
15-1005-14033-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF COMMERCE
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In the Matter of the Residential Building Contractor Activity of Christian Clifford Saxon, d/b/a After Hours Construction |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on before Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on January 11, 2000 for a prehearing conference. The prehearing conference was held pursuant to a Notice of and Order for Hearing, Notice of Prehearing Conference, and Statement of Charges, dated November 29, 2000.
Jennifer S. Kenney, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130, appeared on behalf of the Minnesota Department of Commerce (“Department”). The Respondent, Christian Clifford Saxon, d/b/a After Hours Construction, did not appear in person or by counsel. The record closed upon the Respondent’s default on January 11, 2000.
This Report is a recommendation, not a final decision. The Commissioner of Commerce will make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the Commissioner’s decision shall not be made until this Report has been available to the parties to the proceeding for at least ten (10) 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, Minnesota Department of Commerce, 133 East Seventh Street, St. Paul, MN 55101, telephone (651) 296-3528, to ascertain the procedure for filing exceptions or presenting argument to the Commissioner.
STATEMENT OF ISSUE
1. Did the Respondent fail to pay Flood Bay Home Center $1,440.38 for materials supplied to it?
2. Did the Respondent’s failure to pay Two Harbors Lumber Company, Inc. $7,139.07 result in a judgment against it?
3. Did the Respondent fail to respond to the Department’s request for information?
4. Is discipline against the Respondent in the public interest?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On December 12, 2000, a copy of the Notice of and Order for Hearing, Notice of Prehearing Conference, and Statement of Charges was sent by certified mail to Christian Clifford Saxon, d/b/a After Hours Construction, at its last known address, 130 1st Avenue, Two Harbors, MN 55616, and Post Office Box 122, Two Harbors, MN 55616, as appears from an Affidavit of Compliance on file herein. The Department received a signed acknowledgement of receipt at the First Avenue address. The notice sent by first class mail to that address was returned. Neither notice sent to the postal box was returned. A copy of the notice was also left in the Office of the Commissioner.
2. The Respondent did not 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, Notice of Prehearing Conference, and Statement of Conference contained the following informational warning:
If Respondent fails to attend or otherwise appear at any prehearing conference, settlement conference, or the 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 Certificate of Exemption (sic) may be revoked or suspended, Respondent may be censured, and/or a civil penalty may be imposed against Respondent without further proceedings.
4. Because Respondent failed to appear, it is in default.
5. Pursuant to Minnesota Rules, part 1400.6000, the allegations contained in the Notice of and Order for Hearing, Notice of Prehearing Conference, and Statement of Charges 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. §§ 326.91, 45.027, subd. 1, 45.024, and 14.50 (2000).
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 its failure, without the ALJ’s prior consent, to appear at the prehearing conference.
6. Respondent’s failure to Flood Bay Home Center $1,440.38 for materials supplied to it violates Minn. Stat. § 326.91, subd. 1(6) (2000), and subjects Respondent to discipline and/or civil penalties pursuant to Minn. Stat. §§ 326.91, subd. 1 and 45.027, subds. 6 and 7 (2000).
7. Respondent’s failure to pay Two Harbors Lumber Company, Inc. $7,139.07 for materials supplied to it, resulting in a judgment being obtained against it, violates Minn. Stat. §326.91, subd. 1(6) (2000) and subjects Respondent to discipline and/or civil penalties pursuant to Minn. Stat. §§ 326.91, subd. 1 and 45.027, subds. 6 and 7 (2000).
8. Respondent’s failure to respond to the Department’s requests for information constitutes a violation of Minn. Stat. § 45.027, subd. 1a (2000), and subjects Respondent to discipline and/or civil penalties pursuant to Minn. Stat. §§ 326.91, subd. 1 and 45.027, subds. 6 and 7 (2000).
9. 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 Minnesota Department of Commerce take adverse action against Respondent’s license, censure Respondent, and/or impose a civil penalty upon Respondent.
Dated this 25th day of January, 2001.
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S/ Beverly Jones Heydinger |
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BEVERLY JONES HEYDINGER |
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Administrative Law Judge |
Reported: Default (no tapes)
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.