12-1902-16654-2
BC2401318/GJL
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of Hometown Construction & Remodeling, Inc.
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for prehearing conference before Administrative Law Judge Steve M. Mihalchick on August 10, 2005, at 1:30 p.m. at the Office of Administrative Hearings, 100 Washington Avenue South, in Minneapolis. 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 June 21, 2005.
Michael J. Tostengard, Assistant Attorney General, Suite 1200, 445 Minnesota Street, St. Paul, Minnesota 55101-2130, appeared on behalf of the Department of Labor and Industry ("Department"). There was no appearance by or on behalf of Hometown Construction & Remodeling, Inc. (Respondent). The last known address of Respondent is 13759 St. Andrew Drive, Eden Prairie, MN 55346. Based upon Respondent’s failure to appear, the Department requested a Default Recommendation. The record closed in this matter upon the close of the prehearing conference on August 10, 2005.
This Report is a recommendation, not a final decision. The Commissioner of the Department of Labor and Industry 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 Commissioner’s decision 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 Commissioner of the Department of Labor and Industry, 443 Lafayette Road North, St. Paul, Minnesota 55155, to ascertain the procedure for filing exceptions or presenting argument.
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 in this matter under Minn. Stat. § 14.62, subd. 2a. 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.
STATEMENT OF ISSUES
The issues in this case are as follows:
1. Whether Respondent failed to complete Gary and Margaret Schipp’s remodeling project and performed in breach of contract in violation of Minn. Stat. § 326.91, subd. 1(4) (2004).
2. Whether Respondent failed to use the proceeds of payments made for labor, skill, or material provided by Cabinets By Dan, Inc. and Jatco Electric, in violation of Minn. Stat. § 326.91, subd. 1(8) (2004).
3. Whether Respondent failed to respond to the Department’s requests for information in violation of Minn. Stat. §§ 45.027, subds. 1a (2004).
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges in this matter were served upon Respondent by U.S. mail on June 21, 2005, at the last known address of Hometown Construction & Remodeling, Inc. and to the attention of Chris Kaeding.
2. The Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges served on Respondent contained the following additional notice:
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 that its proposed disciplinary action may be upheld.
3. Respondent failed to file a Notice of Appearance with the Administrative Law Judge or make any request for a continuance or any other relief. Respondent did not appear at the prehearing conference scheduled on August 10, 2005, or have an appearance made on his behalf.
4. Because Respondent failed to appear at the hearing in this matter, Respondent is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing and Statement of Charges are hereby taken as true and incorporated into these Findings of Fact.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Minnesota Department of Labor and Industry and the Administrative Law Judge have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 45.027, and 326.91 (2004).
2. The Department has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law and rule.
3. Respondent, having made no appearance at the hearing and not requesting any continuance or relief, is in default.
4. Pursuant to Minn. R. 1400.6000, a contested case hearing may be decided adversely to a party who defaults. On default, the allegations contained in the Notice of and Order for Hearing or other pleading may be taken as true or deemed proved without further evidence.
5. By failing to complete the Schipp remodeling project, Respondent performed in breach of contract in violation of Minn. Stat. § 326.91, subd. 1(4) (2004).
6. By failing to use the proceeds of payments made for labor, skill or material provided by Cabinets By Dan, Inc., and Jatco Electric, Respondent violated Minn. Stat. § 326.91, subd. 1(8) (2004).
7. By failing to respond to the Department’s requests for information dated February 28, 2005 and March 14, 2005, Respondent violated Minn. Stat. §§45.027, subd. 1a (2004).
8. Respondent is subject to discipline and civil penalties pursuant to Minn. Stat. §§ 45.027, subds. 6 and 7, and 326.91, subd. 1 (2004), and the imposition of sanctions is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the Commissioner of the Department of Labor and Industry take disciplinary action against Respondent and impose appropriate civil penalties.
Dated this 15th day of August 2005.
Reported: Default.
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/s/ Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |
Pursuant to 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.