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OAH Docket No. 3-1902-19307-2 DOLI File No. BC2703579/CMW |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of Andrew David Wagner, individually and d/b/a Creative Construction |
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 30, 2007, at the
Office of Administrative Hearings,
Michael J.
Tostengard, Assistant Attorney General,
Andrew David
Wagner d/b/a Creative Construction (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 performed residential building contractor or roofing services
without being licensed, in violation of Minn. Stat. § 326.84, subds. 1 and 1b,
and 326.842 (2006);
(2) The
Respondent failed to comply with the terms of a cease and desist order, in
violation of Minn. Stat. § 326.91, subd. 1(5) (2006);
(3) The Respondent
represented to a homeowner that he was licensed when he was not, thereby
engaging in a fraudulent, deceptive, and dishonest practice in the procurement
of a contract, in violation of Minn. Stat. § 326.91, subds. 1(2) and 4 (2006),
and Minn. R. 2891.0040, subp. 1C (2005); and
(4) Respondent
performed roofing work for a homeowner in Circle Pines,
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On October 26, 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 at
2.
The Notice and Order for Hearing scheduled a prehearing conference
in this matter at 1:30 p.m. on November 30, 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 Respondent
may be subject to discipline, including revocation, suspension, censure, or the
imposition of civil penalties.[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, he 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 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
5.
The Respondent is in default as a result of his failure to
appear at the prehearing conference.
6.
Residential
building contractors must be licensed by the Commissioner.[3] Residential roofers are subject to this
requirement.[4]
7.
The Respondent
performed residential building contractor or roofing services without being
licensed, in violation of Minn. Stat. § 326.84, subds. 1 and 1b, and 326.842
(2006).
8.
The Respondent
failed to comply with the terms of a cease and desist order dated August 6,
2007. The Respondent thereby failed to comply with any rule or order of the
Commissioner under sections 326.83 to 326.98, or any other law, rule, or order
related to the duties and responsibilities entrusted to the Commissioner, in
violation of Minn. Stat. § 326.91, subd. 1(5) (2006).[5]
9.
The Respondent
represented to a homeowner that he was licensed when he was not. The Respondent thereby engaged in a
fraudulent, deceptive, and dishonest practice in the procurement of a contract,
in violation of Minn. Stat. § 326.91, subd. 1(2) (2006), and Minn. R.
2891.0040, subp. 1C (2005).
10.
Respondent performed roofing work in an unworkmanlike manner
and refused to repair the faulty work despite repeated requests. The Respondent thereby performed negligently
or in breach of contract, in violation of
11.
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: December 4, 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 close