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OAH 4-1902-17400-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of Better Homes Construction, Inc. |
FINDINGS OF
FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on
before Administrative Law Judge Bruce H. Johnson (the “ALJ”) for a prehearing
conference on Thursday, August 31, 2006, at 1:30 p.m., at the Office of
Administrative Hearings,
Michael J. Tostengard, Assistant Attorney General,
STATEMENT OF
ISSUES
1. Did
the Respondent fail to respond to the Department’s requests for information in
violation of Minn. Stat. § 45.027, subd. 1a?[2]
2. By
failing to perform work on contracts with homeowners, did the Respondent breach
his contracts with homeowners and perform negligently under those contracts in
violation of Minn. Stat. § 326.91, subd. 1(4)?
3. By
diverting funds received from homeowners from their intended purpose, was the
Respondent untrustworthy, incompetent, or financially irresponsible violation
of Minn. Stat. §§ 326.842 and 326.91, subd. 1(5) and 3?
4. Did the Respondent fail to use funds
received from homeowners to pay suppliers in violation of Minn. Stat. § 326.91,
subd. 1(8)?
5. And if any of the above is the case, should
the Respondent be disciplined by the Commissioner?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On July 13, 2006, a copy of the Notice and Order for Hearing, Prehearing Conference
and Statement of Charges in this matter was sent via first class mail to Better Homes Construction, Inc.,
2.
The Notice and Order for Hearing, Prehearing Conference and
Statement of Charges scheduled a prehearing conference in this matter for Thursday,
August 31, 2006, at 1:30 p.m., at the Office of Administrative Hearings,
3.
The Respondent did not appear at the 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 a
continuance or any other relief from either the ALJ or the Department.[5]
4.
The Notice and Order
for Hearing, Prehearing Conference and Statement of Charges 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 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 and Order for Hearing,
Prehearing Conference and Statement of Charges are taken as true and
incorporated by reference 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 are
authorized to consider the charges against Respondent under Minn. Stat. §§ 14.50,
326.91, and 326.92, subd. 3.
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
requirements.
4.
Under Minn. R. 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 and Order for
Hearing or other pleadings may be taken as true or deemed proved without
further evidence.
5.
The Respondent is in default herein as a result of his
failure, without the ALJ’s prior consent, to appear at the prehearing
conference.
6.
Between January 26 and May 2, 2006, the Respondent failed to respond to the Department’s
requests for information in violation of Minn. Stat. § 45.027, subd. 1a.
7.
Between May 13,
2005, and July 13, 2006, the Respondent failed to perform work specified in his
contracts with homeowners and, therefore, breached those contracts and performed
negligently under them in violation of Minn. Stat. § 326.91, subd. 1(4).
8.
Between May 13,
2005, and July 13, 2006, the Respondent diverted funds received from homeowners
from their intended purpose and, therefore, was untrustworthy, incompetent, and
financially irresponsible violation of Minn. Stat. §§ 326.842 and 326.91, subd.
1(5) and 3.
9.
Between May 13,
2005, and July 13, 2006, the Respondent failed to use funds received from homeowners
to pay suppliers in violation of Minn. Stat. § 326.91, subd. 1(8).
10.
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. §§ 326.84, 326.842,
and 326.91 and Minn. R. 2891.0040, subp. 1H, in order to protect the public
health, safety, and welfare.
11.
Disciplinary
action against the Respondent is in the public interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED: that the Commissioner take such disciplinary action against the
Respondent as he considers appropriate under the circumstances.
Dated: September 12, 2006.
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s/Bruce H. Johnson |
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BRUCE H. JOHNSON |
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Administrative Law Judge |
Reported: Default (1 tape)
No transcript prepared
This
Report is a recommendation, not a final decision. The Commissioner of Labor and Industry will
make the final decision after reviewing the record and may adopt, reject or
modify these Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Commissioner’s
decision shall not be made until this Report has been available to the parties
to the proceeding for at least ten (10) days.
An opportunity must be afforded to each party adversely affected by this
Report to file exceptions and present argument to the Board. 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.