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15-1902-17855-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of Jesse Buckner |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on before
Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on April 5, 2007, for
a prehearing conference at the Office of Administrative Hearings,
Michael
J. Tostengard, Assistant Attorney General,
The Notice of and Order for Hearing, Order for Prehearing Conference and Statement of Charges were sent to the Respondent at the address above and were not returned as undelivered. In addition, the Administrative Law Judge sent a letter with information about the prehearing to the Respondent. That letter was not returned as undelivered.
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, 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 Scott Brener,
Commissioner, Attn.: Nancy Leppink,
Director of Legal Services, Minnesota 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 (2006)?
2.
Did the Respondent perform in breach of contract in
violation of Minn. Stat. § 326.91 subd. 1(4)?
3.
Did the Respondent violate the March 15, 1999 Cease and
Desist Order, in violation of Minn. Stat. 326.91, subd. 1(5)?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On February 9, 2007, the Notice of and Order for Hearing, Order
for Prehearing Conference, Statement of Charges, and Notice of Appearance was
sent by first class mail to Jesse Buckner, 2011 Queen Avenue North,
Minneapolis, MN 55411. It was not
returned to the Department.
2.
The Respondent failed to 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.
3.
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
disciplinary action may be upheld.
4.
Because Respondent failed to appear, he is in default.
5.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Notice of and Order for Hearing and Notice of Prehearing
Conference 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 (2006).
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 substantive
and 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 that 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 ALJ’s prior consent, to appear at the prehearing
conference.
6.
Respondent engaged in unlicensed residential building
contractor activity in violation of Minn. Stat. §§ 326.84, subds. 1 and 1b.
7.
The Department has failed to allege any facts sufficient to
support a violation of Minn. Stat. § 326.842, which prohibits working as a
roofer without a license.
8.
Respondent performed in breach of contract in violation of
Minn. Stat. § 326.91 subd. 1(4).
9.
Respondent violated the March 15, 1999, Cease and Desist
Order, in violation of Minn. Stat. 326.91, subd. 1(5).
10.
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 impose
discipline including a civil penalty upon the Respondent.
Dated this 10th day of April, 2007.
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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)