11-1005-16979-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
|
In the
Matter of the Real Estate Broker’s License of Steven Vonseg |
FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for
a prehearing conference before Administrative Law Judge Barbara L. Neilson on
January 5, 2006, at 1:30 p.m. at the Office of Administrative Hearings in
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 Recommendation set forth in this
Report. 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
the office of the Commissioner of Commerce,
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 or as otherwise provided by law. 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. In order to comply
with Minn. Stat. § 14.62, subd. 2a, the Commissioner must then return the
record to the Administrative Law Judge within 10 working days to allow the
Judge to determine the discipline to be imposed. 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, Steven Vonseg,
allowed a client to enter into a purchase agreement prior to the cancellation
of a prior purchase agreement, and thereby engaged in a fraudulent, deceptive,
or dishonest practice and demonstrated that he is incompetent, untrustworthy,
or financially irresponsible, in violation of Minn. Stat. § 82.35, subd. 1(b)
and (f); whether the Respondent failed to respond to the Department’s
investigation and failed to appear before the Department when ordered to do so,
in violation of Minn. Stat. § 45.027, subd. 1a; and if so, whether the
Respondent’s real estate broker’s should be disciplined.
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, Order to Show Cause,
and Statement of Charges initiating this contested case proceeding was served
on the Respondent, Steven Vonseg, via first class mail on December 5, 2005, at his
last known address on file with the Department:
2806 – 66th Street North, Brooklyn Center, MN 55430.[1]
2. The Notice of
and Order for Hearing, Order for Prehearing Conference, Order to Show Cause,
and Statement of Charges set a prehearing conference for January 5, 2006, at
1:30 p.m.[2]
3. The Notice of
and Order for Hearing, Order for Prehearing Conference, Order to Show Cause,
and Statement of Charges included the following notice:
Respondent’s
failure to appear at the prehearing conference may result in a finding that
Respondent is in default, that the Department’s allegations contained in the
Statement of Charges may be accepted as true, and that its proposed
disciplinary action may be upheld.[3]
4. The envelope
containing the Notice of and Order for Hearing, Order for Prehearing
Conference, Order to Show Cause, and Statement of Charges was not returned to
the Department as undeliverable.
However, general information on hearing procedures sent to the
Respondent by the Administrative Law Judge on December 28, 2005, was returned
to the Office of Administrative Hearings on January 3, 2006, marked “moved –
left no address – unable to forward.”
5. The Respondent
did not file any Notice of Appearance or make any request prior to the January
5, 2006, prehearing conference for a continuance or any other relief. No one appeared at the prehearing conference
on January 5, 2006, on behalf of the Respondent.
6.
Because the Respondent failed to appear at the prehearing
conference in this matter, he is in default.
7.
Pursuant to Minn. Rules part 1400.6000, the allegations
contained in the Notice of and Order for Hearing, Order for Prehearing
Conference, Order to Show Cause, 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
and 45.027.
2.
Minn. Stat. § 45.016 authorizes the Commissioner of Commerce
to serve orders or other papers required or permitted to be issued relating to
the duties and responsibilities entrusted to the Commissioner by several
alternative methods, including “first class United States mail, including
certified United States mail, or overnight express mail service, postage
prepaid and addressed to the party at the party’s last known address.”
3.
The Notice of and Order for Hearing, Order for Prehearing
Conference, Order to Show Cause, and Statement of Charges issued by the
Department was proper and the Department has fulfilled all relevant procedural
requirements of law and rule.
4.
Pursuant to Minn. Rules 1400.6000, a default occurs when a
party “fails to appear without the prior consent of the judge at a prehearing
conference, settlement conference, or a hearing or fails to comply with any
interlocutory orders of the judge.”
5.
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.
6.
By allowing a client to enter into a purchase agreement
prior to the cancellation of a prior purchase agreement, the Respondent engaged
in a fraudulent, deceptive, or dishonest practice and has been shown to be
incompetent, untrustworthy, or financially irresponsible, in violation of Minn.
Stat. § 82.35, subd. 1(b) and (f).
7.
By failing to respond to the Department’s investigation of a
complaint stemming from the above incident and by failing to appear before the
Department as ordered, the Respondent violated Minn. Stat. § 45.027, subd.
1a.
8.
The Respondent’s real estate broker’s license is subject to
discipline under Minn. Stat. § 45.027, subd. 7, as a result of these violations,
and the Respondent is subject to appropriate civil penalties under Minn. Stat.
§ 45.027, subd. 6. 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 real estate broker’s
license of Steven Vonseg and impose appropriate civil penalties.
Dated: January 10, 2006
|
s/Barbara
L. Neilson |
|
BARBARA
L. NEILSON |
|
Administrative
Law Judge |
Reported: Default.
[1] Affidavit of Service by First Class Mail of Jean-Anne Gates attached to Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges.
[2] Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges, p. 1.
[3]