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15-1902-19013-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of Robert David Hanson |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on before Administrative
Law Judge Beverly Jones Heydinger (“ALJ”) on August 14, 2007, 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, 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 Commissioner
Steve Sviggum, ATTN: Nancy Leppink,
Director of Legal Services,
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 (2006)?
2. Did the Respondent violate the May 30,
2001, Cease and Desist Order issued by the Commissioner, in violation of Minn.
Stat. § 326.91, subd. 1 (5) (2006)?
3. Did the Respondent receive payment in full
for the Honsa project and fail to pay subcontractors on that project, in
violation of Minn. Stat. § 326.91, subd. 1 (8)(2006)?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On June 20, 2007, a copy of the Notice of and Order for
Hearing, Order for Prehearing Conference, Statement of Charges, and Notice of
Appearance, was sent via first class to Robert David Hanson, 18574 Everest
Path, Farmington, MN 55024, as appears from the Affidavit of Service by First
Class Mail, on file herein. The mailing
was not returned to the Department as undeliverable.
2.
On July 10, 2007, the undersigned sent a notice to the
parties rescheduling the date and time of the prehearing conference to August
14, 2007. The mailing was not returned
to the Office of Administrative Hearings.
3.
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.
4.
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.
5.
Because Respondent failed to appear, he is in default.
6.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Notice of and Order for Hearing, Notice of 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 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 (2004).
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
legal 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 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 its
failure, without the ALJ’s prior consent, to appear at the prehearing
conference.
6.
The Respondent engaged in unlicensed residential building
contractor activity, in violation of Minn. Stat. §326.84, subds. 1 and 1b
(2006).
7.
The Respondent violated the May 30, 2001, Cease and Desist
Order issued by the Commissioner, in violation of Minn. Stat. § 326.91, subd. 1
(5) (2006).
8.
The Respondent received payment in full for the Honsa
project and failed to pay subcontractors on that project, in violation of Minn.
Stat. § 326.91, subd. 1 (8)(2006).
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 of the Department of Labor and Industry take
adverse action against Respondent’s license, censure Respondent, and/or impose
a civil penalty upon Respondent.
Dated this 27th day of August, 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 (not recorded)