OAH 3-1901-21295-2
MN
|
In the Matter of Steve Sviggum, Commissioner, Department of Labor and Industry, Complainant, vs. S & S Exterior Specialists, LLC, Respondent. |
DECISION AND ORDER FOR DEFAULT JUDGMENT |
This matter came on before Administrative Law Judge (ALJ) Kathleen D. Sheehy for telephone prehearing conferences on September 30, 2010, and October 18, 2010.
Jackson Evans,
Assistant Attorney General,
Based on all the files, records, and proceedings, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS HEREBY ORDERED that the contested citation and notification of penalty against Respondent are affirmed, and default judgment in favor of the Department is granted.
Dated: October 27, 2010 s/Kathleen D. Sheehy
__________________________
KATHLEEN D. SHEEHY
Administrative Law Judge
Pursuant
to
Respondent is an
employer as defined by Minn. Stat. § 182.651, subd. 6, engaged in the business
of installing siding. On February 20,
2009, the Department conducted an occupational safety and health inspection of
Respondent’s work site at
On April 8, 2009, the Respondent filed a Notice of Contest challenging the citations and penalties.[2]
On July 30, 2009, the Department served a Summons and Complaint on the Respondent by mail.[3] The Summons informed Respondent that he was required to serve an Answer to the Complaint on the Commissioner within 20 days after service of the Summons.[4] Respondent was also informed that his failure to file an Answer might constitute a waiver of Respondent’s right to further participate in this proceeding. Respondent did not file an Answer to the Complaint.
On September 2, 2010, the Department served a Notice and Order for Hearing and Prehearing Conference on the Respondent by mail.[5] The Notice and Order for Hearing and Prehearing Conference scheduled a telephone conference to be held at 1:30 p.m. on September 30, 2010. The Notice and Order for Hearing also provided, at page 2, that the Respondent’s failure to appear at the hearing may result in a finding that the Respondent is in default, that the allegations contained in the Notice and Order may be accepted as true, and that the proposed action may be upheld.
On September 30, 2010, the Administrative Law Judge unsuccessfully attempted to reach the Respondent by telephone and left a message on his voicemail to contact her as soon as possible. The prehearing conference was continued to 1:30 p.m. on October 18, 2010, and the Respondent was provided with a telephone number to use for the conference. In the letter rescheduling the prehearing conference, the Administrative Law Judge advised the Respondent that failure to appear for the prehearing conference may result in a finding that the Respondent is in default; that the allegations made by the Complainant may be accepted as true; and that the Complainant’s proposed action may be upheld.[6] On October 18, 2010, the Respondent did not appear for the rescheduled prehearing conference or contact the Administrative Law Judge to make other arrangements.
Under the rules of the Department of Labor and Industry, a respondent’s failure to deny the allegations in the Complaint is deemed to be an admission, and any affirmative defense not asserted is deemed to be waived.[7] Under the rules of the Office of Administrative Hearings, a respondent’s failure to appear at a prehearing conference without the prior consent of the judge is a default, upon which the allegations set out in the notice and order for hearing may be deemed proved without further evidence.[8]
Respondent has
not filed an answer and has failed to appear for two prehearing
conferences. Accordingly, the
allegations contained in the Complaint are deemed to be true, and any
affirmative defenses are deemed waived pursuant to Minn. R. 5210.0570, subp. 4,
and
The Respondent violated 29 C.F.R. § 1926.451(g)(1), as described in Citation 1, Item 1; 29 C.F.R. § 1926.1053(b)(4), as described in Citation 1, Item 2a; and 29 C.F.R. § 1926.1053(b)(13), as described in Citation 1, Item 2b. These violations were properly classified as serious violations under Minn. Stat. § 182.651, subd. 12; and the proposed penalty was issued properly pursuant to Minn. Stat. § 182.661, subd. 1. The amount of the penalty is appropriate and reflects consideration of the employer’s size, the employer’s good faith, the employer’s violation history, and the gravity of the violation alleged, as required by Minn. Stat. § 182.666, subd. 6. The contested citation and notification of penalty are affirmed.
K.D.S.
[1] All references to Minnesota Statutes are to the 2008 edition; all references to Minnesota Rules are to the 2009 edition.
[2] Notice of Contest (received April 8, 2009).
[3] Affidavit of Service by Mail (July 30, 2009).
[4] See
[5] Certificate of Service (Sept. 2, 2010).
[6] Letter to parties from ALJ (Oct. 5, 2010).
[7]
[8]