11-1902-16980-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the
Matter of Phillips Construction Co. |
FINDINGS OF
FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for
a prehearing conference before Administrative Law Judge Barbara L. Neilson on May
24, 2006, at 2:30 p.m. at the Office of Administrative Hearings in
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 Recommendations. 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
the Office of the Commissioner 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. 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 presented in this case are whether the Respondent, Phillips Construction
Co., installed the incorrect brand of windows, failed to complete the work
items required by a binding mediation settlement, and failed to provide a
satisfaction of mechanic’s lien, and has thereby performed in breach of
contract and acted in an incompetent, untrustworthy, and financially
irresponsible manner in violation of Minn. Stat. § 326.91, subd. 1(4) and
(6). If so, the further issue is whether
the Respondent should be subject to discipline of its residential building
contractor’s license and/or a civil penalty pursuant to Minn. Stat.
§§ 45.027, subd. 7, and 326.91, subd. 1.
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 (“Notice of Hearing”) initiating this contested case
proceeding was served on the Respondent Phillips Construction Co. via first
class mail on December 2, 2005, at the following addresses: Phillips Construction Co., 465 Autumn Wood
Drive, Chaska, MN 55318, and John Kruse,
487 Mendota Road West, West St. Paul, MN
55118.[1]
2.
The Notice of Hearing contained the following language:
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.[2]
3. The Notice of Hearing
set a prehearing conference for January 5, 2005 [sic], at 2:30 p.m.[3] John Kruse and counsel for the Department
both appeared at the Office of Administrative Hearings on January 5, 2006, for
the prehearing conference. Mr. Kruse
indicated that the correct address for his business is
4. By letter
dated March 30, 2006, counsel for the Department informed the Administrative
Law Judge that the Respondent had not returned a signed consent order that had
been proposed by the Department, and requested that the matter be set back on
for hearing.
5. By letter
dated May 2, 2006, the Administrative Law Judge informed the Respondent and
counsel for the Department that a prehearing conference would be held on May
24, 2006, at 2:30 p.m., at the Office of Administrative Hearings. The letter was sent to John I. Kruse, Kruse
Construction Company,
6.
No one appeared at the prehearing conference on May 24,
2006, on behalf of the Respondent. The
Respondent did not make any request prior to the May 24, 2006, prehearing
conference for a continuance or any other relief.
7.
Because the Respondent failed to appear at the prehearing
conference in this matter, it is in default.
8.
Pursuant to Minn. Rules part 1400.6000, the allegations
contained in the Notice of Hearing 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 the
Department of Labor and Industry have jurisdiction over this matter pursuant to
Minn. Stat. §§ 14.50, 45.027, and 326.91.
2.
The Notice of Hearing issued by the Department was proper
and the Department has fulfilled all relevant substantive and procedural
requirements of law and rule.
3.
The Respondent, having made no appearance at the prehearing
conference, and not requesting any continuance or relief, is in default. Pursuant to Minn. Rules part 1400.6000, the
allegations contained in the Notice of Hearing are hereby taken as true.
4.
By installing the incorrect brand of windows, failing to
complete the work items required by a binding mediation settlement, and failing
to provide a satisfaction of mechanic’s lien, the Respondent has performed in
breach of contract and acted in an incompetent, untrustworthy, and financially
irresponsible manner in violation of Minn. Stat. § 326.91, subd. 1(4) and (6). The Respondent is subject to discipline of
its residential building contractor’s license and/or a civil penalty pursuant
to Minn. Stat. §§ 45.027, subd. 7, and 326.91, subd. 1. The
imposition of sanctions 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 Labor
and Industry impose discipline against the residential building contractor’s
license and/or impose an appropriate civil penalty against the Respondent,
Phillips Construction Co.
Dated: June 23, 2006 s/Barbara
L. Neilson
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BARBARA
L. NEILSON |
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Administrative
Law Judge |
Reported: Default.