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OAH 7-1902-17198-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of Kraig David Terlinden, individually, and d/b/a Kraig Terlinden Construction |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for a prehearing conference
before Administrative Law Judge Richard C. Luis on May 15, 2006, at the Office
of Administrative Hearings in
Christopher M. Kaisershot, Assistant Attorney
General,
1.
Whether Respondent
failed to complete work on a contract in violation of Minn. Stat. § 326.91,
subd. 1(4). [1]
2.
Whether
Respondent diverted a down payment from its intended purpose in violation of Minn.
Stat. §§ 45.027, subds. 1a, 2, and 7(a)(4), 326.91, subd. 1(6) and Minn. R.
2891.0050, subp. 1C.
3.
Whether
Respondent failed to respond to the Department’s requests for information in
violation of Minn. Stat. § 45.027, subds. 1a and 7(a)(3).
4.
Whether it is
appropriate to take disciplinary action against the residential building
contractor license held by Respondent.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
On April 3,
2006, a Notice of and Order for Hearing, Order for Prehearing Conference, and
Statement of Charges (Notice of Hearing) in this matter was mailed to Kraig
David Terlinden by first class mail to the following address: 1112 East 14th Street, Glencoe, MN 55336.[2] The Notice of Hearing indicated that a
Prehearing Conference would be held in this matter on May 15, 2006.[3]
2.
The Notice of
Hearing 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.[4]
3.
No one appeared
at the May 15, 2006, prehearing conference on behalf of Respondent. No prehearing request was made for a
continuance, nor did anyone file a Notice of Appearance on behalf of Respondent.
4.
The Notice of
Hearing alleges that Respondent failed to complete work in breach of contract
in violation of Minn. Stat. § 326.91, subd. 1(4) and alleges that Respondent
diverted a $10,467 down payment from its intended purpose, demonstrating that
Respondent is incompetent, untrustworthy, or financially irresponsible in
violation Minn. Stat. §§ 45.027, subds. 1a, 2, and 7(a)(4), 326.91, subd. 1(6)
and Minn. R. 2891.0050, subp. 1C. The
Notice also alleges that Respondent failed to respond to requests for
information relating to the first complaint sent by the Department on December 8,
2005 and February 16, 2006 in violation
of Minn. Stat. § 45.027, subds. 1a and 7(a)(3).
5.
The allegations contained in the Notice of
Hearing are deemed proven and are incorporated into these Findings by
reference.
6.
The taking of
disciplinary action against Respondent is in the public interest.
Based on these Findings of Fact, the Administrative
Law Judge makes the following:
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. Kraig David Terlinden, individually, and d/b/a Kraig Terlinden Construction 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.
3. Under Minn. Rule 1400.6000, Kraig David Terlinden, individually, and d/b/a Kraig Terlinden Construction is in default as a result of its failure to appear at the scheduled Prehearing Conference.
4. Under Minn. Rule 1400.6000, the allegations and issues set out in the Notice may be taken as true or deemed proven when a party defaults.
5.
Based on the
facts set out in the Notice of Hearing, Respondent failed to complete work in breach of contract in
violation of Minn. Stat. § 326.91, subd. 1(4).
Respondent diverted a $10,467 down payment from its intended purpose,
demonstrating that Respondent is incompetent, untrustworthy, or financially
irresponsible in violation Minn. Stat. §§ 45.027, subds. 1a, 2, and 7(a)(4), 326.91,
subd. 1(6) and Minn. R. 2891.0050, subp. 1C.
Respondent failed to respond to requests for information relating to the
first complaint sent by the Department on December 8, 2005 and February 16,
2006 in violation of Minn. Stat. § 45.027, subds. 1a and 7(a)(3).
6. Disciplinary action against Kraig David Terlinden, individually, and d/b/a Kraig Terlinden Construction is in the public interest within the meaning of Minn. Stat. § 45.027, subd. 7(a)(1).
7. The Cease and Desist Order is permanent pursuant to Minn. Stat. § 45.027, subd. 5a (c).
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
Based upon these Conclusions, the Administrative Law Judge recommends that disciplinary action be taken against Kraig David Terlinden, individually, and d/b/a Kraig Terlinden Construction.
Dated: June 2, 2006
/s/
Richard C. Luis
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RICHARD
C. LUIS Administrative
Law Judge |
Reported: Taped,
One tape
No
transcript prepared
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, Commissioner, Department of Labor and Industry,
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. 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.
R. C. L.
[1] Unless otherwise specified, all references to Minnesota Statutes are to the 2004 edition, and all references to Minnesota Rules are to the 2005 edition.
[2] See Affidavit of Service by First Class Mail of Susan M. Oesterreich dated April 3, 2006.
[3] Notice of Hearing, p. 1.
[4] Notice of Hearing, p. 4, ¶ 1.