OAH 12-1005-21245-2
DCL15857 (PULSE)(CC)
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of the Debt Collector License Application of James W. Young |
FINDINGS OF FACT, RECOMMENDATION |
The above-entitled matter came on before
Administrative Law Judge Steve M. Mihalchick for a hearing on June 22, 2010, at
the Office of Administrative Hearings,
Michael J. Tostengard, Assistant Attorney
General,
The issues presented in this case are whether the Applicant has been convicted of a felony within the last five years and whether the Applicant’s application for licensure as a debt collector should be therefore be denied for violation of Minn. Stat. § 332.35 (2008).
Based upon all of the files, records and proceedings, the Administrative Law Judge makes the following:
1.
On May 11, 2010, the Department served by first
class mail a copy of the Order Denying License Application, Statement of Charges,
and Notice of Hearing (the Order Denying License) on the Applicant at
2.
The Order Denying License scheduled a hearing in
this matter for June 22, 2010, at the Office of Administrative Hearings,
3. The Order Denying License specifically notified the Applicant that failure to appear at the hearing may result in a finding that Applicant is in default, that the Department’s allegations in the Order Denying License may be accepted as true, and that its proposed disciplinary action may be upheld.[2]
4. The Applicant did not appear for the hearing, nor did the Applicant contact the Administrative Law Judge prior to the hearing to seek a continuance or request any other relief.
5. Because the Applicant failed to appear for the hearing, he is in default.
6. Pursuant to Minn. Stat. § 45.027, subd. 7, and Minn. R. 1400.6000, the allegations contained in the Order Denying License 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:
7. The Administrative Law Judge and the Commissioner are authorized to consider the charges against the Applicant under Minn. Stat. §§ 14.50 and 45.024, subd. 1.
8. The Applicant received due, proper, and timely notice of the charges against him and of the time and place of the hearing. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.
9. The Department has complied with all relevant procedural legal requirements.
10. Under Minn. R. 1400.6000, a contested case may be decided adversely to a party who defaults. On default, the allegations set out in the notice and order for hearing or other pleadings may be taken as true or deemed proved without further evidence. 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.
11. Similarly, under Minn. Stat. § 45.027, subd. 7, if a licensee or applicant fails to appear at a hearing after having been duly notified of it, the person is considered in default, and the proceeding may be determined against the licensee or applicant upon consideration of the order to show cause, the allegations of which may be considered true.
12. The Applicant is in default as a result of his failure to appear at the hearing.
13. On February 17, 2010, the Applicant completed an online License Application for licensure as a debt collector. He answered “yes” to a question on the form asking whether he been charged with or convicted of a crime. As directed by the form, the Applicant had information faxed to the Department regarding those charges and conviction. It showed that he had pled guilty to and been convicted of one felony charge of terroristic threats on May 1, 2007.[3]
14. Debt collectors and collection agencies are licensed and regulated under Minn. Stat. §§ 332.31 to 332.45. Under Minn. Stat. § 332.35, no debt collector license may be issued to any person, who has, within the past five years, been convicted in any court of any felony.
15. Because the Applicant has been convicted of a felony within the past five years, his application for a debt collector’s license must be denied.
16. On March 2, 2010, the Department notified the Applicant that it intended to deny his application for a license and of his right to request a hearing on the denial. On March 16, 2010, the Department received the Applicant’s request for hearing.[4]
17. The Order Denying License complied with the requirements of Minn. Stat. § 45.027, subd. 7, that the commissioner issue an order requiring an applicant for a license to show cause why the license should not be denied that gives reasonable notice of the time and place for the hearing, and states the reasons for the entry of the order.
18. Denial of the Applicant’s application for a debt collector license is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: that the Commissioner AFFIRM the denial of the Applicant’s application for a debt collector license.
Dated: June 28, 2010
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/s/ Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |
Reported: Digitally recorded, not transcribed.
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 Recommendation. 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 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 Emmanuel
Munson-Regala, Deputy Commissioner, Market Assurance Division, Minnesota
Department of Commerce,
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, subd. 2a. In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within ten 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.