OAH Docket No. 3-1902-17222-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of Jeffrey Daniel Martin, individually and d/b/a J.D. Martin Masonry Company |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on for a prehearing conference before Administrative Law Judge Kathleen D. Sheehy on May 17, 2006, at 3:30 p.m. at the Office of Administrative Hearings in Minneapolis, Minnesota. The record closed at the conclusion of the prehearing conference.
Christopher M. Kaisershot, Assistant Attorney General, Suite 1200, 445 Minnesota Street, St. Paul, MN 55101-2130, appeared for the Department of Labor and Industry (the Department).
Jeffrey Daniel Martin, J.D. Martin Masonry Company, 435 West 158th Street, Burnsville, MN 55306 (Respondent), did not appear.
NOTICE
This Report is a recommendation, not a final decision. The Commissioner of the 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 Nancy Leppink, Director of Legal Services, Minnesota Department of Labor and Industry, 443 Lafayette Road, St. Paul, MN 55155, 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. 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 Respondent is subject to discipline and/or civil penalties because:
(1) Respondent entered into a contract to perform work in more than one special skill while his license was inactive; listed his expired license number on a contract; engaged in unlicensed residential building contractor activity; and entered into a contract while his license was inactive, in violation of Minn. Stat. §§ 326.84, subds. 1 and 1b, 326.91, subds. 1(2) and 4; and Minn. R. 2891.0040, subp. 1F;
(2) Respondent performed defective and incomplete work, thereby performing in breach of contract, in violation of Minn. Stat. § 326.91, subds. 1(4) and 4 (2004); and
(3) Respondent failed to satisfy a judgment obtained by the homeowner, demonstrating that he is incompetent, untrustworthy, or financially irresponsible in violation of Minn. Stat. § 326.91, subds. 1(6) and 4.
Based on the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On April 10, 2006, the Commissioner of Commerce issued a Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges (Notice and Order for Hearing) in this matter. The Department served the Notice and Order for Hearing on the Respondent by first-class mail that day addressed to Jeffrey Daniel Martin, J.D. Martin Masonry Company, 435 West 158th Street, Burnsville, MN 55306.
2. The Prehearing Conference was scheduled to take place at 3:30 p.m. on May 17, 2006, at the Office of Administrative Hearings.
3. The Notice and Order for Hearing 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.
4. The Respondent failed to appear for the prehearing conference on May 17, 2006. The Respondent did not contact the Administrative Law Judge prior to the prehearing conference to request a continuance in this matter. Accordingly, the Respondent is in default.
5. Pursuant to Minn. R. 1400.6000, the allegations contained in the Statement of Charges at paragraphs 1-5 are hereby taken as true and incorporated into these Findings of Fact.
Based on the Findings of Fact, 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, 326.91, subd. 4, and 326.92, subd. 3.
2. The Notice and Order for Hearing issued by the Department was proper, and the Department has fulfilled all relevant procedural requirements of law and rule.
3. The Respondent is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Statement of Charges at paragraphs 1-5 are hereby taken as true.
4. Minn. Stat. § 326.83, subd. 15, defines a residential building contractor as a person who contracts with an owner to build residential real estate by providing two or more special skills; Minn. Stat. § 326.84, subds. 1 and 1b, require that residential building contractors be licensed; and Minn. R. 2891.0040, subp. 1F provides that contracting while a license is inactive for any reason is a fraudulent, deceptive, or dishonest practice. By entering into a contract with a White Bear Lake homeowner to perform work involving more than one special skill while his license was inactive, by listing his expired license number on the contract, and by engaging in unlicensed residential building contractor activities while his license was expired, the Respondent is subject to discipline under Minn. Stat. § 326.91, subds. 1(2), 1(5), and 4.
5. By performing the work in a defective and incomplete manner, the Respondent performed in breach of contract, subjecting him to discipline under Minn. Stat. § 326.91, subds. 1(4) and 4.
6. Minn. Stat. § 326.91, subds. 1(6) and 4, authorize the Commissioner to take disciplinary action against a person required to be licensed who is shown to be incompetent, untrustworthy, or financially irresponsible. By failing to satisfy a judgment obtained by the homeowner, the Respondent has shown himself to be incompetent, untrustworthy, and financially irresponsible.
7. The imposition of discipline and/or civil penalties against Respondent is in the public interest.
Based on the above Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RECOMMENDED that the Commissioner of Labor and Industry take disciplinary action and assess appropriate civil penalties against Respondent Jeffrey Daniel Martin.
Dated this 19th day May, 2006.
_s/Kathleen D. Sheehy____________
KATHLEEN D. SHEEHY
Administrative Law Judge
Reported: Default
NOTICE
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.