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OAH 3-1902-17948-2 DOLI File Nos. BC2700447/GJL BC2700943/GHL |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of Christopher James Schneider, d/b/a Christopher J. Schneider Construction |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on before Administrative Law Judge Kathleen D. Sheehy for hearing on July 24, 2007, at 9:30 a.m., at the Office of Administrative Hearings, Suite 1700, 100 Washington Avenue South, Minneapolis , Minnesota 55401. The OAH record closed at the conclusion of the hearing.
Christopher M. Kaisershot, Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2130, appeared on behalf of the Department of Labor and Industry (the Department).
Christopher James Schneider, d/b/a Christopher J. Schneider Construction (Respondent), 29520 Morris Trail, Lindstrom, MN 55045, did not appear in person or by counsel.
STATEMENT OF ISSUES
The issues presented in this case are whether the Respondent is subject to discipline and/or civil penalties because:
1. Respondent performed negligently or in breach of contract, in violation of Minn. Stat. § 326.91, subd. 1(4) (2006).
2. Respondent failed to use proceeds of payments to pay for materials and services that contributed to the project, diverted proceeds from their intended purpose, and engaged in acts that demonstrate he is incompetent, untrustworthy, financially irresponsible, and unqualified to act under the license granted by the Commissioner, in violation of Minn. Stat. §§ 45.027, subd. 7(a)(4) and 326.91, subd. 1(6) and (8), and Minn. R. 2891.0050, subp. 1C (2005).
2. Respondent engaged in a fraudulent, deceptive, or dishonest practice by transacting business in a name other than the one in which he is licensed, in violation of Minn. Stat. § 326.91, subd. 1(2), and Minn. R. 2891.0040, subp. 1E.
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On April 3, 2007, the Department sent by first class mail a copy of the Notice and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges (Notice and Order for Hearing) to Christopher James Schneider, d/b/a Christopher J. Schneider Construction, at three different addresses in Lindstrom and Chisago City, Minnesota.[1]
2. The Notice and Order for Hearing scheduled a prehearing conference in this matter at 9:00 a.m. on May 16, 2007, at the Office of Administrative Hearings, Suite 1700, 100 Washington Avenue South, Minneapolis, Minnesota 55401.
3. Respondent appeared for the prehearing conference and stated that his current address was 29520 Morris Trail, Lindstrom, Minnesota 55045. Based on discussions held in the prehearing conference, the Administrative Law Judge issued a Prehearing Order scheduling the hearing to take place July 24, 2007, at the Office of Administrative Hearings and requiring the parties to exchange exhibits and witness lists by July 17, 2007.[2]
4. The Notice and Order for Hearing specifically notified the Respondent that failure to appear at the 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.[3]
5. The Respondent did not appear for the hearing, nor did Respondent contact the Administrative Law Judge prior to the hearing to seek a continuance or request any other relief. Respondent did not exchange any exhibits with the Department or respond to the Department’s requests for discovery in this matter.
6. Because Respondent failed to appear for hearing, he is in default.
7. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice and Order for Hearing 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 hearing. 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. 1400.6000, a contested case may be decided adversely to a party who defaults. On default, the allegations set out in the 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 as a result of his failure to appear at the hearing.
6. Respondent performed negligently or in breach of contract with regard to the Stocco project, in violation of Minn. Stat. § 326.91, subd. 1(4).
7. Respondent failed to use proceeds of payments to pay for materials and services that contributed to the project, diverted proceeds from their intended purpose, and engaged in acts that demonstrate he is incompetent, untrustworthy, financially irresponsible, and unqualified to act under the license granted by the Commissioner with regard to the Stocco project and payment of bills to LaCoe Enterprises, in violation of Minn. Stat. §§ 45.027, subd. 7(a)(4) and 326.91, subd. 1(6) and (8), and Minn. R. 2891.0050, subp. 1C.
8. Respondent engaged in a fraudulent, deceptive, or dishonest practice by transacting business in the name of “Schneider Construction, LLC,” a name other than the one in which he is licensed, in violation of Minn. Stat. § 326.91, subd. 1(2), and Minn. R. 2891.0040, subp. 1E.
9. 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 disciplinary action against the Respondent.
Dated: July 24, 2007.
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s/Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
Reported: Default
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 Steve Sviggum, Commissioner, Department of Labor and Industry, 443 Lafayette Road North, St. Paul, MN 55155, or call the Department at (651) 284-5005, to learn about the procedure for filing exceptions or presenting argument.
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.