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OAH Docket No. 3-1902-19236-2 DOLI File Nos. BC2701155/CMW BC2702848/CMW |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
|
In the Matter of Brashdan, LLC |
FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION |
The
above-entitled matter came on before Administrative Law Judge Kathleen D.
Sheehy for a prehearing conference at 1:30 p.m. on November 21, 2007, at the
Office of Administrative Hearings,
Michael J.
Tostengard, Assistant Attorney General,
Brashdan, LLC
(Respondent),
STATEMENT OF ISSUES
The issue
presented in this case is whether the Respondent is subject to discipline and/or
civil penalties because:
(1) The
Respondent failed to use the proceeds received from a customer to pay for
roofing materials, in violation of Minn. Stat. § 326.91, subd. 1(7) (2006);
(2) The
Respondent engaged in unlicensed residential building contractor activity, in
violation of Minn. Stat. §§ 326.84, subds. 1 and 1b and 326.842 (2006);
(3) The
Respondent failed to comply with the terms of a Consent Order, in violation of
Minn. Stat. § 326.91, subd. 1(5) (2006); and
(4) The
Respondent prepared a forged lien waiver, in violation of Minn. Stat. § 326.91,
subd. 1(13) (2006).
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On October 3, 2007, the Commissioner sent by first class
mail a copy of the Notice and Order for
Hearing, Order for Prehearing Conference, and Statement of Charges (Notice and
Order for Hearing) to the Respondent and its owners, Gregory Steiner and
Jeffrey Steiner, at
2.
The Notice and Order for Hearing scheduled a prehearing conference
in this matter at 1:30 p.m. on November 21, 2007, at the Office of
Administrative Hearings,
3.
The Notice and Order for Hearing specifically notified the
Respondent that failure to appear at the prehearing conference 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 the proposed
disciplinary action may be upheld.[2]
4.
The Respondent did not appear for the prehearing conference,
nor did Respondent contact the Administrative Law Judge prior to the prehearing
conference to seek a continuance or request any other relief.
5.
Because Respondent failed to appear for the prehearing
conference, it is in default.
6.
Pursuant to Minn. R. 1400.6000 (2005), 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 it 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
5.
The Respondent is in default as a result of its failure to
appear at the prehearing conference.
6.
The Commissioner may take adverse action against a license
if a licensee or agent owner has failed to use the proceeds of any payment made
to the licensee for the payment of material contributed to the construction or
improvement of residential real estate, knowing that the cost of material
furnished for the improvement remains unpaid.[3]
7.
The Respondent
contracted with JMS Custom Homes, LLC, to re-roof certain homes. Despite being paid in full by JMS Custom
Homes, the Respondent failed to use the proceeds received to pay a supplier for
the materials used in the contract. The
Respondent failed to use the proceeds received from a customer to pay for
roofing materials, in violation of Minn. Stat. § 326.91, subd. 1(7) (2006).
8.
Residential
building contractors must be licensed by the Commissioner.[4] Residential roofers are subject to this
requirement.[5]
9.
A December 15,
2006, Consent Order suspended the Respondent’s license and precluded the
Respondent from entering into any residential building contracts until certain
financial obligations were satisfied, a civil penalty was paid, and the
suspension was rescinded. The Respondent
continued to offer to perform residential building contractor services while
his license remained suspended, in violation of Minn. Stat. § 326.84, subds. 1
and 1b and 326.842 (2006).
10.
The Commissioner may take adverse action against a license
if a licensee or agent owner has
violated or has failed to comply with any rule or order under sections 326.83
to 326.98, or any other law, rule, or order related to the duties and responsibilities
entrusted to the Commissioner.[6]
11.
The Respondent
failed to comply with the terms of the December 15, 2006, Consent Order, in
violation of Minn. Stat. § 326.91, subd. 1(5) (2006).
12.
The Commissioner may take adverse action against a license
if a licensee or agent owner has made use
of a forged mechanic's lien waiver.[7]
13.
The Respondent
prepared false lien waivers indicating that a supplier of roofing materials had
been paid in full, in violation of Minn. Stat. § 326.91, subd. 1(13) (2006).
14.
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: November 26, 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 Commissioner. Parties should contact Steve Sviggum,
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, 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.
[1]
Affidavit of Service by
[2] Notice and Order for Hearing at 4.
[3] Minn. Stat. § 326.91, subd. 1(7) (2006). The Notice and Order for Hearing contains a typographical error citing this provision as § 326.91, subd. 1(8).
[4] Minn. Stat. § 326.84, subds. 1 and 1b (2006).
[5]
[6] Minn. Stat. § 326.91, subd. 1(5) (2006).
[7] Minn. Stat. § 326.91, subd. 1(13) (2006). The Notice and Order for Hearing contains a typographical error citing this provision as § 326.91, subd. 1(14).