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11-1902-16814-2 |
STATE OF MINNESOTA
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 hearing before Administrative Law Judge Barbara L. Neilson on September 20, 2005, at 1:30 p.m. at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, Minneapolis , Minnesota. The hearing was held pursuant to a Notice of and Order for Hearing, Order to Show Cause, Order for Summary Suspension, and Statement of Charges dated August 25, 2005, which was served on the Respondent, Imperial Siding, Inc., at its last known address on file with the Department of Labor and Industry.
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. There was no appearance by or on behalf of the Respondent, Imperial Siding, Inc., 140 Hudson Avenue North, Big Lake, MN 55309. The Department requested a default recommendation due to the Respondent’s failure to appear at the hearing. The OAH record closed at the conclusion of the hearing on September 20, 2005.
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, 443 Lafayette Road, St. Paul, MN 55155, to find out about 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, 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 demonstrate financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6) by failing to satisfy a judgment obtained by a roofing materials supplier in April 2005 and by issuing a check for insufficient funds to the Department when seeking to renew its license for 2005?
Did the Respondent fail to respond to the Department’s investigation, in violation of Minn. Stat. § 45.027, subds. 1 and 1a?
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 to Show Cause, Order for Summary Suspension, and Statement of Charges initiating this contested case proceeding was served on the Respondent via first class mail on August 25, 2005, at the following address: Imperial Siding, Inc., 140 Hudson Avenue North, Big Lake, MN 55309.[1]
2. The Notice of and Order for Hearing, Order to Show Cause, Order for Summary Suspension, and Statement of Charges contained the following language:
Respondent’s failure to appear at the contested case hearing and/or 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 20, 2005, hearing for a continuance or any other relief. The Respondent did not personally appear at the hearing in this matter scheduled for September 20, 2005, or have an appearance made on its behalf.
5. Because the Respondent failed to appear at the hearing 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 to Show Cause, Order for Summary Suspension, 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 to Show Cause, Order for Summary Suspension, 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 hearing, 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 to Show Cause, Order for Summary Suspension, and Statement of Charges are hereby taken as true.
4. By failing to satisfy a judgment obtained in April 2005 by Roof Depot, Inc., the Respondent has shown financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6).
5. By failing to respond to the Department’s investigation, the Respondent violated Minn. Stat. § 45.027, subd. 1 and 1a.
6. 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, Imperial Siding, Inc., 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).