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OAH 8-1902-17737-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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In the Matter of the Residential Building Contractor’s License of Schuett General Contractors, Inc., License No. 20221427 |
FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATION |
This matter came on for a prehearing
conference before Administrative Law Judge Eric L. Lipman on February 15, 2007,
at the
Michael J. Tostengard, Assistant Attorney
General,
STATEMENT OF THE
ISSUES
1. Whether the Respondent demonstrated financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1 (6) (2006)?
2. Whether the Respondent, by failing to satisfy lawful judgments, violated Minn. Stat. § 326.91, subd. 1 (12) (2006)?
3. Whether it is appropriate to take disciplinary action against the residential building contractor license held by the Respondent?
Based on the
evidence in the hearing record, the Administrative Law Judge makes the
following:
FINDINGS OF FACT
1. On December 18, 2006, a Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges (Notice of and Order for Hearing) in this matter was mailed to 12203 Aberdeen St., #160, Blaine, MN 55449-4719.[1] The Notice of and Order for Hearing indicated that a Prehearing Conference would be held in this matter on February 15, 2007.[2]
2. The Notice and Order for Hearing in this matter includes the following statements:
Respondent’s failure to appear at the prehearing conference or hearing 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.
….
Under Minn. Stat. § 45.027, subd. 6 (2006), Respondent may be subject to a civil penalty not to exceed $10,000 per violation upon a final determination that Respondent(s) violated any law, rule or order.[3]
3. No one appeared at the February 15, 2007, 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 and Order for Hearing alleges that:
(a)
In February 2006, the Department received a
complaint from WDC Exploration & Wells, Inc., a
(b) In June 2006, the Department received a complaint from Clyne’s Custom Cabinets. The Department’s investigation revealed that Clyne’s provided custom cabinet installation work for Respondent on several houses being constructed and has not been paid. Respondent owes $34,301.55 to Clyne’s.
(c)
The Department’s investigation further revealed
that there is an outstanding judgment in the amount of $33,702 against
Respondent in
(d) The Department’s investigation has further revealed that Slepica Painting, Inc., obtained a judgment of $40,019 against Respondent on December 11, 2006 in Anoka County District Court.
(e) Scaffold Service, Inc. obtained a judgment totaling $40,314 against Respondent in Hennepin County District Court on December 12, 2006. The judgment has not been satisfied.
5. The allegations contained in the Notice and Order for Hearing are deemed proven and are incorporated into these Findings by reference.
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 have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 45.027 and 326.91, and Executive Order 193.[4]
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.
Respondent
is in default as a result of his failure, without the ALJ’s prior consent, to
appear at the scheduled prehearing conference.
4.
Pursuant
to 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 forth 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.
Based upon the facts set out in the Notice of
and Order for Hearing, Respondent
demonstrated financial irresponsibility in connection with the unpaid
invoices and judgments referenced above, in violation of
Minn. Stat. § 326.91, subd. 1(6) (2006).
6.
Based upon the facts set out in the Notice of
and Order for Hearing, Respondent, by failing to satisfy lawful judgments, the
Respondent violated Minn. Stat. § 326.91, subd. 1 (12)
(2006).
7.
Based upon the facts set out in the Notice of
and Order for Hearing, the Respondent has demonstrated financial
irresponsibility in connection with Slepica Painting, Inc. and Scaffold
Service, Inc., in violation of Minn. Stat. § 326.91,
subd. 1 (6) (2006).
8. Minn. Stat. § 326.91, subds. 1 (5) and 4 empowers the Commissioner to take disciplinary action against the Respondent, for his violations of agency orders, state statute and state rules.
9.
The imposition of a disciplinary action against
Respondent is in the public interest.
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 Schuett General Contractors,
Incorporated.
Dated: March 19, 2007
s/Eric L. Lipman
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ERIC
L. LIPMAN Administrative
Law Judge |
Reported: Taped, One tape
No transcript prepared
NOTICE
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, subdivision 2a. In such a case, 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.
[1] See, Affidavit of Jean-Anne Gates (December 18, 2006). An amended Statement of Charges was served on January 30, 2007.
[2] Notice and Order for Hearing, at 1.
[3] Notice and Order for Hearing, at 3, ¶ 1 and 4, ¶ 10.
[4] See, State of Minnesota Department of Administration Reorganization Order No. 193 (April 4, 2005) (“The responsibilities of the Department of Commerce as set forth in Minnesota Statutes 2004, sections 326.83 through 326.992, and Chapter 327A in relation to Residential Contractors and Remodelers are transferred to the Department of Labor and Industry").