11-1005-16351-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of Thomas Brummer, individually and doing business as Brummer Remodeling
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION
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The above-entitled matter came on for a prehearing conference before Administrative Law Judge Barbara L. Neilson on February 3, 2005, at 1:30 p.m. at the Office of Administrative Hearings in Minneapolis, Minnesota. Christopher M. Kaisershot, Assistant Attorney General, 445 Minnesota Street, Suite 1200, 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, Thomas Brummer, individually and doing business as Brummer Remodeling, 2453 – 80th Street S.W., Montrose, MN 55363. The OAH record closed after the prehearing conference on February 3, 2005.
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 Kevin Murphy, Deputy Commissioner, Department of Commerce, 85 Seventh Place East, Suite 500, St. Paul, MN 55101-2198, to ascertain 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.
STATEMENT OF ISSUES
The issues presented in this case are whether the Respondent, Thomas Brummer, individually and doing business as Brummer Remodeling, has engaged in unlicensed residential building contractor or residential remodeler activities, has been incompetent, untrustworthy, or financially irresponsible, has performed negligently or in breach of contract, or has failed to respond to requests for information from the Commissioner, in violation of Minn. Stat. § 326.84, subds. 1, 1b and 3(5), 326.91, subds. 1(4) and (6) and 4, and 45.027, subd. 1a; and, if so, whether the Respondent should be subject to censure or a civil penalty pursuant to Minn. Stat. §§ 45.027, subds. 6 - 7, and 326.91, subd. 1.
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, Order for Prehearing Conference, and Statement of Charges initiating this contested case proceeding was served on the Respondent, Thomas Brummer, individually and doing business as Brummer Remodeling, via first class mail on December 30, 2004, at the following address: Thomas Brummer, Brummer Remodeling, 2453 80th Street S.W., Montrose, MN 55363.[1]
2. The Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges set a prehearing conference for February 3, 2005, at 1:30 p.m.[2]
3. The Notice of and Order for Hearing, Notice of Prehearing Conference and Statement of Charges contained the following language:
Respondent’s failure to appear at the contested case hearing and/or prehearing conference may result in a finding that the Respondent is in default, that the Department’s allegations contained in the Statement of Charges may be accepted as true, and its proposed action may be upheld.[3]
4. The Respondent did not file a notice of appearance or make any request prior to the February 3, 2005, prehearing conference for a continuance or any other relief. No one appeared at the prehearing conference on February 3, 2005, on behalf of the Respondent.
5. Because the Respondent failed to appear at the prehearing conference in this matter, the Respondent is in default.
6. Pursuant to Minn. Rules part 1400.6000, the allegations contained in the Notice of and Order for Hearing, Order for Prehearing 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 Administrative Law Judge and the Commissioner of Commerce have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 45.027, and 326.91.
2. The Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges issued by the Department was proper and the Department 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. Rules part 1400.6000, the allegations contained in the Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges are hereby taken as true.
4. Under Minn. Stat. § 326.91, subd. 4, the Commissioner is not prevented from taking action against persons required to be licensed under Minn. Stat. § 326.83 to 326.991 based on conduct that would provide grounds for action against a licensee.
5. By exceeding the $15,000 limit of his Certificate of Exemption, the Respondent engaged in unlicensed residential building contractor or residential remodeler activities in violation of Minn. Stat. § 326.84, subds. 1, 1b, and 3(5). By abandoning a remodeling project before completion despite receiving payment for the work, the Respondent has performed negligently or in breach of contract in violation of Minn. Stat. § 326.91, subd. 1(4). By failing to satisfy a judgment obtained against the Respondent in Wright County Conciliation Court, the Respondent has engaged in incompetent, untrustworthy, or financially irresponsible conduct in violation of Minn. Stat. § 326.91, subd. 1(6). By failing to respond to correspondence from the Department, the Respondent has failed to respond to requests for information from the Commissioner in violation of Minn. Stat. § 45.027, subd. 1a. The Respondent is subject to censure and/or civil penalties pursuant to Minn. Stat. §§ 45.027, subds. 6 - 7, and 326.91, subd. 1. The imposition of sanctions 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 Commerce take appropriate disciplinary action against the Respondent, Thomas Brummer, individually and doing business as Brummer Remodeling.
Dated: February 14, 2005
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/s/ Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Default.