|
15-1902-16566-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
|
In the Matter of the Residential Contractor License of All American Building Corporation, Inc., License No. 20365376 |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on before Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on June 16, 2005 for a prehearing conference at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, Minneapolis, MN 55401. The prehearing conference was held pursuant to a Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges, dated May 6, 2005. [1]
Michael J. Tostengard, Assistant Attorney General, 445 Minnesota Street, Suite 1200, Saint Paul, MN 55101-2127, appeared on behalf of the Minnesota Department of Labor and Industry (“Department”). The Respondent, All American Building Corporation, Inc., did not appear in person or by counsel. The record closed upon the Respondent’s default on June 16, 2005.
This Report is a recommendation, not a final decision. The Commissioner of Labor and Industry will make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. 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 (10) 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 Nancy Leppink, Director of Legal Services, Minnesota Department of Labor and Industry, 443 Lafayette Road, Saint Paul, MN 55155, to ascertain the procedure for filing exceptions or presenting argument to the Commissioner.
If the Commissioner fails to issue a final decision within 90 days of the close of the record under Minn. Stat. § 14.61, this report becomes a final decision. 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.
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.
STATEMENT OF ISSUES
1. Did the Respondent’s failure to complete work or refund a customer’s down payment demonstrate that it was untrustworthy or financially irresponsible, in violation of Minn. Stat. § 326.91, subd. 1(6)?
2. By failing to satisfy a supplier’s judgment against it, did the Respondent demonstrate it was financially irresponsible, in violation of Minn. Stat. § 326.91, subd. 1(6)?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On May 18, 2005, a copy of the Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges was deposited in first class mail, addressed to All American Building Corporation, Inc., at two addresses, to the attention of Jeffrey Stevens, Qualifying Person: 836 21st Avenue North, St. Cloud, MN 56303, and 410 37th Avenue North, St. Cloud, MN 56303, as appears from an Affidavit of Service on file herein. The mailings were not returned to the Department.
2. The Respondent failed to appear at the prehearing conference, did not obtain the ALJ’s prior approval to be absent from the prehearing conference, did not file a Notice of Appearance, and did not request a continuance or any other relief.
3. The Notice of and Order for Hearing and Notice of Prehearing Conference contained the following informational warning:
Respondent’s failure to appear at the prehearing conference may result in a finding that the Respondent is in default, that the Department’s allegations contained in the Statement of Charges may be accepted as true, and its proposed action may be upheld.
4. Because Respondent failed to appear, it is in default.
5. Pursuant to Minnesota Rules, part 1400.6000, the allegations contained in the Notice of and Order for Hearing and Notice of Prehearing Conference 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:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Labor and Industry are authorized to consider the charges against Respondent under Minn. Stat. §§ 326.91; 45.027, subd. 1; 45.024; and 14.50 (2004).
2. Respondent received due, proper and timely notice of the charges against it, and of the time and place of the prehearing conference. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.
3. The Department has complied with all relevant procedural legal requirements.
4. Under 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 out in the Notice of and Order for Hearing or other pleading may be taken as true or deemed proved without further evidence.
5. The Respondent is in default herein as a result of its failure, without the ALJ’s prior consent, to appear at the prehearing conference.
6. By failing to complete work or refund a customer’s down payment, the Respondent demonstrated that it was untrustworthy or financially irresponsible, in violation of Minn. Stat. § 326.91, subd. 1(6)
7. By failing to satisfy a supplier’s judgment against it, the Respondent demonstrated financial irresponsibility, in violation of Minn. Stat. § 326.91, subd. 1(6).
8. Disciplinary action against the Respondent 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 the Minnesota Department of Labor and Industry take adverse action against Respondent’s license, censure Respondent, and/or impose a civil penalty upon Respondent.
Dated this 21st day of June, 2005.
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Administrative Law Judge |
Reported: Default (no tapes)
[1] This action was commenced by the Department of Commerce. On May 16, 2005, the Governor signed Executive Order 193, transferring the responsibility for regulation of residential building contractors to the Department of Labor and Industry. The caption has been amended accordingly.