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15-1902-17519-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of Lance Lawrence Sorenson, doing business as LB Construction |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on before
Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on November 8, 2006,
for a prehearing conference at the Office of Administrative Hearings,
Michael
J. Tostengard, Assistant Attorney General,
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 Recommendations. Under Minn. Stat. § 14.61,[1] 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 Commissioner. Parties should contact
Nancy Leppink, Director of Legal Services, Department of Labor and Industry,
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, this report becomes a final decision. In order to comply with Minn. Stat. § 14.62, subd. 2a, 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.
STATEMENT OF ISSUE
1. Did
Respondent engage in unlicensed residential building contractor activity in
violation of Minn. Stat. §§ 326.84, subds. 1 and 1b, and 326.842?
2. By failing to obtain the necessary
building permits, did Respondent engage in fraudulent and deceptive practice in
violation of Minn. Stat. § 326.91, subd. 1(2), and
3. Did Respondent perform in breach of
contract in violation of Minn. Stat. § 326.91, subd. 1(4)?
4. Did Respondent demonstrate
untrustworthiness and financial irresponsibility in violation of Minn. Stat. § 326.91,
subd. 1 (6)?
5. By failing to use the proceeds of a
downpayment for the intended purpose, did Respondent violate Minn. Stat. §
326.91, subd. 1(8)?
6. By failing to respond to the Department’s
efforts to investigate the alleged violations, did Respondent violate Minn.
Stat. § 45.027, subd. 1a?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On September 25, 2006, a copy of the Notice of and Order for
Hearing, Order for Prehearing Conference and Statement of Charges was sent by
first class mail to Lance Lawrence Sorenson, d/b/a/ LB Construction,
2.
The Administrative Law Judge sent the Respondent a letter
dated September 28, 2006, restating the date of the prehearing conference, and restating
that, should he fail to appear, the allegations against him could be accepted
as true, and disciplinary action imposed.
3.
On October 5, 2006, a copy of the Amended Statement of
Charges was sent by first class mail to the Respondent, as appears from an
Affidavit of Service on file herein.
4.
None of the documents referenced above were returned by the
U.S. Post Office as undeliverable.
5.
The Respondent failed to appear at the prehearing conference,
did not obtain the Administrative Law Judge’s prior approval to be absent from
the prehearing conference, did not file a Notice of Appearance, and it did not
request a continuance or any other relief.
6.
The Notice of and Order for Hearing and Notice of Prehearing
Conference contained the following informational warning:
Respondent’s failure to appear at the prehearing conference may result in
a finding that the Respondent is in default, that the Department’s allegations
contained in the Statement of Charges may be accepted as true, and its proposed
action may be upheld.
7.
Because Respondent failed to appear, he is in default.
8.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Notice of and Order for Hearing and Notice of Prehearing
Conference, and the Amended 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 of Labor
and Industry are authorized to consider the charges against Respondent under
Minn. Stat. §§ 326.91, 45.027, subd. 1, 45.024, and 14.50.
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 given proper notice and complied with all
relevant procedural legal requirements.
4.
Under Minn. R. 1400.6000, a contested case may be decided
adversely to a party who defaults. On
default, the allegations and the issues set out in the Notice of and Order for
Hearing or other pleading 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 Administrative Law Judge’s prior consent, to appear at the
prehearing conference.
6.
By entering into contracts for greater than $15,000 to
perform residential construction and failing to obtain a residential building
contractor’s license, Respondent violated Minn. Stat. §§ 326.84, subds. 1 and
1b, and 326.842.
7.
By failing to obtain the necessary building permits,
Respondent engaged in fraudulent and deceptive practice in violation of Minn.
Stat. § 326.91, subd. 1(2), and
8.
By failing to perform the work for which he contracted,
Respondent violated Minn. Stat. § 326.91, subd. 1(4).
9.
By failing to use the proceeds of a down payment for the
intended purpose, Respondent violated
10.
By accepting down payments and failing to perform the work
for which he contracted, Respondent demonstrated untrustworthiness and
financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1 (6).
11.
By failing to respond to the Department’s efforts to
investigate the alleged violations, Respondent violated Minn. Stat. § 45.027,
subd. 1a.
12.
The Department has demonstrated that Respondent has violated
the provisions of law governing residential building contractors, and that
discipline and/or civil penalties pursuant to Minn. Stat. § 326.91, subd. 1 and
45.027, subds. 6 and 7 is appropriate.
13.
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 of the Department of Labor and Industry take
adverse action against Respondent, censure Respondent, and/or impose a civil
penalty upon Respondent.
Dated this 21st day of November, 2006.
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/s/ Beverly Jones Heydinger |
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BEVERLY JONES HEYDINGER |
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Administrative Law Judge |
Reported: Default (no tapes)