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12-1005-15796-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
This matter came on for a Prehearing Conference before Administrative Law Judge Steve M. Mihalchick at 1:30 p.m. on May 27, 2004 at the Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota. Francis Green III, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127, appeared for the Department of Commerce. No one appeared for Respondent, nor did Respondent contact the Administrative Law Judge to request a continuance of this matter.
This report is a recommendation, not a final decision. The Commissioner of Commerce will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Commissioner shall not make a final decision until this Report has been made available to the parties for at least ten days. The parties may file exceptions to this Report and the Commissioner must consider the exceptions in making a final decision. Parties should contact the Commissioner at the address above to learn the procedure for filing exceptions or presenting argument.
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.
Pursuant to Minn. Stat. § 14.62, subd. 1, the Commissioner is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.
STATEMENT OF ISSUES
1. Did Respondent fail to complete contracted-for work for Terrill and Joanne Katz, in violation of Minn. Stat. § 326.91, subd. 1(6)?
2. Did Respondent fail to complete contracted-for work for Mitch Landis, in violation of Minn. Stat. § 326.91, subd. 1(6)?
3. Did Respondent fail to remit the proceeds of payments made by the Katzes to subcontractors and suppliers, in violation of Minn. Stat. § 326.91, subd. 1(8)?
4. Did Respondent fail to remit the proceeds of payments made by Mitch Landis to subcontractors and suppliers, in violation of Minn. Stat. § 326.91, subd. 1(8)?
5. Did Respondent fail to respond to the Department’s requests for information relating to the Katz complaint, in violation of Minn. Stat. § 45.027, subd. 1a?
6. Did Respondent fail to respond to the Department’s requests for information relating to the Landis complaint, in violation of Minn. Stat. § 45.027, subd. 1a?
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On April 22, 2004, the Notice of and Order for Prehearing Conference in this matter was served by first class mail upon Ability Construction Co., 2917 – 133rd Street West, Shakopee, MN 55379, and Thomas Peterson (Respondent’s Qualifying Person), 16170 Westgate Lane, Eden Prairie, MN 55344, the last known addresses on file with the Department. It notified Respondent of the prehearing conference scheduled for May 27, 2004. The Notice was not returned to the Department.
2. On May 27, 2004, Respondent failed to appear at the prehearing conference, or to notify the Department or the Administrative Law Judge that it was unable to appear.
3. The Notice of and Order for Prehearing Conference informed Respondent that if it failed to appear at the prehearing conference the allegations against it, set forth in the Notice of and Order for Prehearing Conference, could be taken as true, and a default order could be issued.
4. Because Respondent failed to appear, the company is in default.
5. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Prehearing Conference are taken as true and incorporated into these Findings of Fact.
6. Discipline of Respondent is in the public interest.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Department of Commerce and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 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. Respondent, having made no appearance at the prehearing conference and not requesting any continuance or relief, is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Prehearing Conference are hereby taken as true.
4. Pursuant to Minn. Stat. § 326.91, subd. 1, the Commissioner may by order deny, suspend, or revoke any license or may censure a licensee, and may impose a civil penalty as provided for in Minn. Stat. § 45.027, subd. 6, if the Commissioner finds that the order is in the public interest, and that the licensee or qualifying person has acted in violation of any of the fourteen subitems in Minn. Stat. § 326.91, subd. 1.
5. Respondent failed to complete contracted-for work for the Katzes when the company abandoned the Katzes remodeling project prior to completion in violation of Minn. Stat. § 326.91, subd. 1(6).
6. Respondent failed to complete contracted-for work for Mitch Landis when the company abandoned Landis’ remodeling project prior to completion in violation of Minn. Stat. § 326.91, subd. 1(6).
7. Respondent failed to remit the proceeds of payments made by the Katzes to subcontractors and suppliers, specifically Snelling Company, in violation of Minn. Stat. § 326.91, subd. 1(8).
8. Respondent failed to remit the proceeds of payments made by Mitch Landis to subcontractors and suppliers, in violation of Minn. Stat. § 326.91, subd. 1(8).
9. Respondent failed to respond to the Department’s requests for information relating to the Katz complaint, in violation of Minn. Stat. § 45.027, subd. 1a, by ignoring the Department’s calls and letters on multiple occasions.
10. Respondent failed to respond to the Department’s requests for information relating to the Landis complaint, in violation of Minn. Stat. § 45.027, subd. 1a, by ignoring the Department’s letters on multiple occasions.
11. Respondent’s conduct constitutes grounds for the Department to take disciplinary action under Minn. Stat. § 326.91, subd. 1.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS RESPECTFULLY RECOMMENDED that the Commissioner take disciplinary action against the license of Respondent.
Dated June 2, 2004
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s/Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |
Reported: Not recorded