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1-1901-15626-2 MN OSH Div. Docket No. 7589 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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M. Scott Brener, Commissioner, State of Minnesota, Complainant, v. R & R Excavating, Inc., Respondent. |
FINDINGS OF FACT, CONCLUSIONS AND ORDER |
The above-entitled matter came on for hearing before Administrative Law Judge George A. Beck at 10:00 a.m. on September 2, 2004 at the Mankato Area OSHA Office, 410 Jackson Street, Suite 520, in the City of Mankato, MN. The OAH record closed on that date.
Julie Leppink, Assistant Attorney General, Suite 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127, appeared on behalf of the Department of Labor and Industry (“Complainant”). There was no appearance by or on behalf of Respondent R & R Excavating, Inc.
NOTICE
This decision may be appealed to the Minnesota Occupational Safety and Health Review Board by the employer, employee, their authorized representatives, or any party, within 30 days following the service by mail of this decision. The procedures for appeal are set out at Minn. R. Ch. 5215.
STATEMENT OF ISSUE
The issue in this contested case proceeding is whether or not the penalties assessed against the Respondent for the violations set out in OSHA Citation #1 are appropriate.
Based upon all of the proceedings in this matter, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On July 13, 2004, a Notice and Order for Hearing in this matter was served on the Respondent R & R Excavating, Inc., c/o Brent Reiner, 805 Highway 7 West, Hutchinson, MN 55350. It set the hearing date for September 2, 2004, at 10:00 a.m. at the Mankato area OSHA office.
2. The Administrative Law Judge sent a letter dated August 24, 2004, to Mr. Reiner and Ms. Leppink which repeated the time and date and location of the hearing.
3. The Notice and Order for Hearing advised the Respondent that if it failed to appear, a finding that it was in default may result, and the Complainant’s allegations may be accepted as true and its proposed action may be upheld.
4. The Respondent did not appear at the September 2, 2004 hearing, and did not contact either the Administrative Law Judge or the Assistant Attorney General in a timely manner prior to the hearing to request a continuance or to indicate that it would not appear. No continuance was granted.
5. Mr. Reiner did call Ms. Leppink’s St. Paul office the morning of the hearing after she had left to travel to Mankato, seeking a change of the hearing date. She did not receive the message until September 3, 2004.
6. That the Complainant was prepared to proceed at the hearing with testimony and exhibits.
7. The allegations of the agency contained in the Notice and Order for Hearing are deemed proved and incorporated into the Findings by reference.
8. That the exhibits submitted by the Complainant support the allegations.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge has jurisdiction in this matter under Minn. Stat. § § 182.661 and 14.50.
2. The Respondent was given timely and proper notice of the hearing in this matter.
3. The Department has complied with all relevant substantive and procedural requirements of statute and rule.
4. Under Minn. R. 1400.6000 the Respondent is in default as a result of its failure to appear at the scheduled hearing.
5. Under Minn. R. 1400.6000 the allegations set out in the Notice and Order for Hearing may be taken as true or deemed proved when a party defaults.
6. Based upon the facts set out in the Notice and Order for Hearing and the attachments thereto, Respondent has violated Minn. Stat. § 192.653.
7. That the penalties assessed by the Complainant for OSHA Citation #1 were appropriately calculated under Minn. Stat. § 182.666.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
ORDER
1. The Notice of Contest filed by R & R Excavating, Inc. is dismissed.
2. Citation #1, Items 1 through 4 of the Citation and Notification of Penalty issued to R & R Excavating, Inc. on May 23, 2003, is affirmed in all respects.
3. R & R Excavating, Inc. shall immediately pay a total penalty of $8,550.00 to the Minnesota Department of Labor and Industry at the following address:
Department of Labor and Industry
Minnesota OSHA Compliance
443 Lafayette Road North
St. Paul, MN 55155
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Dated this |
8th |
day of |
September |
2004. |
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/s/ George A. Beck |
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GEORGE A. BECK |
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Administrative Law Judge |
Reported: Taped, No Transcript.
Unpaid fines are increased to 125% of the original assessed amount if not paid within 60 days after the fine becomes a final order. After that 60 days, unpaid fines shall accrue an additional penalty of 10% per month compounded monthly until the fine is paid in full or the fine has accrued to 300% of the original assessed amount.[1]