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OAH 15-1902-19522-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of the Residential Building Contractor’s License of Davco Homes, LLC, License No. 20577547 |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
A prehearing conference was held
before Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on April 25,
2008, at the Office of Administrative Hearings,
Michael J. Tostengard, Assistant Attorney General, appeared on behalf of the Minnesota Department of Labor and Industry (“Department”). The Respondent, Davco Homes, LLC, did not appear in person or by counsel. The hearing record closed upon the Respondent’s default on April 25, 2008.
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 (2006)[1], 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 the Respondent demonstrate financial
irresponsibility, in violation of Minn. Stat. §§ 45.027, subd. 7(a)(4), and 326.91,
subd. 1 (11)?[2]
2. Did the Respondent violate the October 25,
2007, Consent 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 March 5, 2008, a copy of the Notice of and Order for
Hearing, Order for Prehearing Conference, Order to Show Cause and Statement of
Charges, was sent via first class to the Respondent at the address on file with
the Department, as appears from the Affidavit of Service by First Class Mail.
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, it is in default.
5.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Notice of and Order for Hearing, Notice of Prehearing
Conference, Order to Show Cause 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.
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 his
failure, without the ALJ’s prior consent, to appear at the prehearing
conference.
6.
By failing to satisfy judgments against Davco Homes, its
principal, David Francen, and Solid Oak Construction, also owned and operated
by Francen, the Respondent demonstrated financial irresponsibility, in
violation of Minn. Stat. §§ 45.027, subd. 7(a)(4), and 326.91, subd. 1 (11).
7.
By failing to satisfy all final judgments entered against it,
the Respondent violated the Consent Order entered into on October 24, 2007, in
violation of Minn. Stat. § 326.91, subd. 1 (5).
8.
Disciplinary action against the Respondent is in the public
interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS
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 1st day of May, 2008.
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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)