|
OAH 8-1005-19017-2
|
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF COMMERCE
|
In the Matter of David Thomas Bell
|
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for a prehearing conference before Administrative Law Judge Eric L. Lipman on July 31, 2007, at the Minneapolis offices of the Office of Administrative Hearings.
Christopher M. Kaisershot, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, Minnesota, 55101-2130, appeared on behalf of the Minnesota Department of Commerce (Department). There was no appearance by, or on behalf of, David Thomas Bell (Respondent). Following a submission from the Department on July 31, 2007, the hearing record closed.
STATEMENT OF THE ISSUES
1. Whether the Department’s denial of the Respondent’s application for a real estate salesperson’s license should be affirmed?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On June 28, 2007, a Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause and Statement of Charges (Notice of and Order for Hearing) in this matter was mailed to the following address: 2155 - 128th Avenue, N.W., Coon Rapids, MN 55448.[1] The Notice of and Order for Hearing indicated that a Prehearing Conference would be held in this matter on July 31, 2007.[2]
2. The Notice and Order for Hearing in this matter includes the following statements:
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 the Respondent’s license application may be denied.[3]
3. No one appeared at the July 31, 2007 prehearing conference on behalf of Respondent. No prehearing request was made for a continuance, nor did anyone file a Notice of Appearance on behalf of Respondent.
4. The Notice and Order for Hearing alleges that:
(a) On March 27, 2007, Respondent submitted an application for licensure as a real estate salesperson.
(b) On his application, Respondent acknowledged that he had a criminal history and disclosed two criminal convictions.
(c) On August 16, 1990, Respondent pleaded guilty to Felony Theft by Swindle (over $35,000) after forging checks totaling $62,565.25 while working in the payroll department for his employer. Respondent was ordered to serve 30 days in jail, pay restitution, and serve 20 years of probation. On June 21, 1995, Respondent was discharged from probation.
(d) On October 31, 2000, Respondent pleaded guilty to Misdemeanor Unauthorized Computer Access and was sentenced to 30 hours of community service. This conviction resulted from Respondent continuing to access his former employer’s computer system after Respondent was asked to leave the company. Upon pleading guilty to the misdemeanor, the remaining charges for Felony Theft of Trade Secret, Felony Attempted Theft of Trade Secret, and Felony Computer Theft were dismissed.
(e) On May 2, 2007, the Department advised Respondent that it recommended the denial of his license application.
(f) On May 16, 2007, Respondent requested a hearing on his license application for the purpose of submitting evidence of his actions and accomplishments since his convictions.
5. The allegations contained in the Notice and Order for Hearing are deemed proven and are incorporated into these Findings by reference.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Labor and Industry have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50 and 45.027.
2. Respondent received due, proper and timely notice of the charges against him and of the time and place of the prehearing conference. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.
3. Respondent is in default as a result of his failure, without the ALJ’s prior consent, to appear at the scheduled prehearing conference.
4. Pursuant to 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 forth in that Notice of and Order for Hearing and Prehearing Conference or other pleadings may be taken as true or deemed proved without further evidence.
5. Under Minn. Stat. § 45.027, subd. 7(a)(4), the Commissioner of Commerce may deny an application for a real estate salesperson’s license if the Commissioner finds that it is in the public interest to do so and the applicant has “engaged in an act or practice, whether or not the act or practice directly involves the business for which the person is licensed or authorized, which demonstrates that the applicant or licensee is untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act under the authority or license granted by the commissioner.”
6. Respondent’s conduct as evidenced by his convictions in 1990 and 2000 demonstrates that he is “untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act under the authority or license” of real estate salesperson under Minn. Stat. § 45.027, subd. 7(a)(4), and that he has “engaged in a fraudulent, deceptive, or dishonest practice” in violation of Minn. Stat. § 82.35, subd. 1(b). This conduct directly relates to the occupation for which the license is sought and warrants the denial of his license application under Minn. Stat. § 45.027.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
Based upon these Conclusions, the Administrative Law Judge recommends that the Department’s denial of the Respondent’s application for a real estate salesperson’s license be AFFIRMED.
Dated: August 23, 2007
s/Eric L. Lipman
|
ERIC L. LIPMAN Administrative Law Judge |
Reported: Digitally recorded
No transcript prepared
NOTICE
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 the office of Patrick L. Nelson, Deputy Commissioner of Commerce, 85 Seventh Place East, Suite 500, St. Paul, Minnesota 55101-2198, for information about the procedure for filing exceptions or presenting argument.
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. 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, subdivision 2a. In such a case, 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.