OAH 58-1902-17341-2

Agency No. BC2502101/CMW

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF LABOR AND INDUSTRY

In the Matter of the Certificate of Exemption of Kevin J. Martinson d/b/a Property Services, Certificate of Exemption #20341443

FINDINGS OF FACT, CONCLUSIONS

AND RECOMMENDATION

The above-entitled matter came on for a prehearing conference before Administrative Law Judge Linda F. Close (the ALJ), on July 28, 2006, at the Office of Administrative Hearings, 100 Washington Ave. S., Minneapolis, MN 55401-2138. The prehearing conference was held pursuant to a Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, Statement of Charges, and Notice of Appearance (Notice of and Order for Hearing and Prehearing Conference) dated June 7, 2006.

Michael J. Tostengard, Assistant Attorney General, 445 Minnesota St. #1200, St. Paul, MN 55102-2130, appeared on behalf of the Department of Labor and Industry (Department). The Respondent, Kevin J. Martinson d/b/a Property Services, 1432 Pascal Street North, St. Paul, MN 55108, (Respondent), did not appear in person or by counsel.[1] The record closed on August 9, 2006, when the Department’s affidavit in support of its motion for default was received.

NOTICE

This report is a recommendation, not a final decision. The Commissioner of Labor and Industry (the Commissioner) will make the final decision after a review of the record. The Commissioner may adopt, reject or modify these 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 J. Leppink, General Counsel, Minnesota Department of Labor and Industry, 443 Lafayette Road N., St. Paul, MN 55155, 651 284-5019, 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.

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 under Minn. Stat. § 14.61, the agency must return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed.

STATEMENT OF THE ISSUES

1. By failing to satisfy a judgment, has Respondent demonstrated incompetence, untrustworthiness or financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6)?

2. By failing to respond to the Department’s request for information, has Respondent violated Minn. Stat. § 45.027, subd. 1a?

Based on the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On June 8, 2006, a copy of the Notice of and Order for Hearing and Prehearing Conference in this matter was sent via first class mail to Kevin J. Martinson, d/b/a Property Services, 1432 Pascal Street North, St. Paul, MN 55108, as appears from an Affidavit of Service by Mail on file herein. The address was the address that the Respondent had most recently provided to the Department in connection with his certificate exemption in the State of Minnesota. The U.S. Postal Service did not return that Notice to the Department as undelivered or undeliverable.[2]

2. The Notice of and Order for Hearing and Prehearing Conference scheduled a prehearing conference for July 28, 2006 at 1:30 p.m. at the Office of Administrative Hearings, 100 Washington Ave. S., Minneapolis, MN 55401-2138.

3. The Respondent did not appear at the July 28, 2006, prehearing conference, did not obtain the ALJ’s prior approval to be absent from the prehearing conference, did not file a Notice of Appearance, and did not request that the prehearing conference be rescheduled or any other relief from attending it.

4. The Notice of and Order for Hearing and Prehearing Conference contained the following informational warning:

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.

5. Because Respondent failed to appear at the prehearing conference, he is in default.

6. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing and Prehearing Conference are taken as true and are incorporated into these Findings of Fact.

Based on these 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 Respondent under Minn. Stat. §§ 45.027, 326.91, 14.50, and Executive Order 193.

2. Respondent received due, proper and timely notice of the charges against him and of the time and place of the prehearing conference. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.

3. The Department has complied with all relevant procedural legal requirements.

4. Under Minn. R. pt. 1400.6000, a contested case may be decided adversely to a party who defaults. On default, the allegations of and the issues set out in that Notice of and Order for Hearing and Prehearing Conference or other pleadings may be taken as true or deemed proved without further evidence.

5. Respondent is in default as a result of his failure, without the ALJ’s prior consent, to appear at the scheduled prehearing conference.

6. By failing to satisfy a judgment, Respondent has demonstrated incompetence, untrustworthiness or financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6).

7. By failing to respond to the Department’s request for information, Respondent has violated Minn. Stat. § 45.027, subd. 1a.

8. Minn. Stat. § 326.91 empowers the Commissioner to take disciplinary action against the Respondent, as a result of the Respondent’s violations of Minn. Stat. §§ 45.027, subd. 1a and 326.91, subd. 1(6).

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Commissioner take such disciplinary action against the Respondent as he considers appropriate under the circumstances.

Dated: August 11, 2006

s/Linda F. Close

LINDA F. CLOSE

Administrative Law Judge

Reported: Default