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OAH Docket No. 12-1902-16994-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of the Residential Building Contractor License of Home Value Exteriors, Inc., License No. 20508573 |
FINDING OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for a prehearing conference before Administrative Law Judge Steve M. Mihalchick on January 27, 2006 at the Office of Administrative Hearings in Minneapolis.
Michael J. Tostengard, Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota, 55101-2130, appeared on behalf of the Minnesota Department of Labor and Industry ("Department"). There was no appearance by or on behalf of Home Value Exteriors, Inc. The record closed at the conclusion of the proceedings on January 27, 2006.
NOTICE
This report is a recommendation, not a final decision. The Commissioner of the Minnesota 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 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 Scott Brener to learn 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 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
Whether it is appropriate to take disciplinary action against Home Value Exteriors, Inc. for allowing an unlicensed residential building contractor to use its license number to obtain a building permit?
Based on the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On December 12, 2005, a Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges (Notice) in this matter was mailed to Home Value Exteriors, Inc. by first class mail to the following address: Home Value Exteriors, Inc., 5644 Vera Cruz Avenue North, Crystal, MN, 55429, Attn. Dennis Plante.
2. The Notice in this matter includes the following statement:
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.
3. Neither Home Value Exteriors, Inc., nor Mr. Plante appeared at the prehearing conference. No one appeared at the prehearing conference on their behalf. No prehearing request was made for a continuance, nor did anyone file a Notice of Appearance.
4. The Notice alleges that a Department investigation of Mark Allen Miller, doing business as Trade Group Remodeling, revealed that Mr. Miller did not hold a residential contractor’s building license. The Department alleges that Mr. Miller used the license number of Home Value Exteriors, Inc. to obtain a building permit. The Department alleged that this conduct violates Minn. Stat. § 326.91, subd. 1(13).
5. The allegations of the Notice are deemed proved and are incorporated into these Findings by reference.
6. The taking of disciplinary action against Home Value Exteriors, Inc. is in the public interest.
Based on the Findings, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Labor and Industry have jurisdiction in this matter pursuant to Minn. Stat. § 14.50, 45.027, subds. 6 and 7, and 326.91.
2. Any of the Findings more properly termed Conclusions are adopted as such.
3. Home Value Exteriors, Inc. was given timely and proper notice of the Prehearing Conference in this matter. The Department has complied with all procedural requirements of law and rule.
4. Under Minn. Rule 1400.6000, Home Value Exteriors, Inc. is in default as a result of its failure to appear at the scheduled Prehearing Conference.
5. Under Minn. Rule 1400.6000, the allegations and issues set out in the Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges may be taken as true or deemed proved when a party defaults.
6. Based on the facts set out in the Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges, and Exhibit 1, Mr. Oreskovich has violated Minn. Stat. §§ 326.84, subds. 1 and 1a, and 326.91, subds. 1(5) and 1(13).
7. Disciplinary action against Home Value Exteriors, Inc. is in the public interest within the meaning of Minn. Stat. § 45.027, subd. 7(a)(1).
Based on the Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RECOMMENDED that disciplinary action be taken against Home Value Exteriors, Inc.
Dated this _7th_ day of January, 2007
_/s/ Steve M. Mihalchick_______
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Default, no transcript prepared.