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11-1902-16727-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above matter came on for a prehearing conference before
Administrative Law Judge Barbara L. Neilson on September 8, 2005, at 1:30 p.m.
at the Office of Administrative Hearings,
Michael J. Tostengard, Assistant Attorney General,
NOTICE
This report is a recommendation, not a final
decision. The Commissioner 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 Recommended Decision. Under Minn. Stat. § 14.61, the final decision
of the Commissioner 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
Nancy Leppink, Director of Legal
Services, Department of Labor and Industry,
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 10 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.
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
This case presents the following issues:
Did the Respondent fail to satisfy two judgments obtained by Kenmark Partnership in 2004 and thereby demonstrate financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6)?
Is the imposition of discipline against the Respondent in the public interest?
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, Order to Show Cause, and Statement of Charges initiating this contested case proceeding was served on the Respondent via first class mail on July 20, 2005, at the following address: US Team Contractors, Inc., 2440 Charles Street North, No. 204, North St. Paul, MN 55109, Attn: Dwayne D. Horstman.[1]
2. The Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges contained the following language:
Respondent’s failure to appear at the prehearing conference may result in a finding that 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.[2]
4. The Respondent did not make any request prior to the September 8, 2005, prehearing conference for a continuance or any other relief. The Respondent did not personally appear at the prehearing conference in this matter scheduled for September 8, 2005, or have an appearance made on its behalf.
5. Because the Respondent failed to appear at the prehearing conference in this matter, it is in default.
6. Pursuant to Minn. Rules part 1400.6000, the allegations contained in the Statement of Charges included in the Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, 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 Administrative Law Judge and the Commissioner of Labor and Industry are authorized to consider the charges against the Respondent under Minn. Stat. §§ 14.50, 45.024, 45.027, subd. 1, and 326.91.
2. The Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges issued by the Department was proper and the Department has fulfilled all relevant procedural requirements of law and rule.
3. The Respondent, having made no appearance at the prehearing conference, and not requesting any continuance or other relief, is in default. Pursuant to Minn. Rules part 1400.6000, the allegations contained in the Statement of Charges included in the Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges are hereby taken as true.
4. By failing to satisfy two 2004 judgments obtained by Kenmark Partnership, LLP, against the Respondent, the Respondent has shown financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6).
5. The Respondent’s license is subject to discipline and the Respondent is subject to censure and/or civil penalties pursuant to Minn. Stat. §§ 45.027, subds. 6 - 7, and 326.91, 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 Labor and Industry take appropriate disciplinary action against the residential building contractor license of the Respondent, US Team Contractors, censure the Respondent, and/or impose an appropriate civil penalty against the Respondent.
Dated: September 26, 2005
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s/Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Default (no tape recording).