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OAH 11-1902-19691-2 |
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
Charles Owen Heidemann III, doing business as Chuck Heidemann Construction,
License No. 20014336 |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on
before Administrative Law Judge Barbara L. Neilson for a prehearing conference
on Wednesday, July 23, 2009, at 1:30 p.m. at the Office of Administrative
Hearings,
Michael
J. Tostengard, Assistant Attorney General,
STATEMENT OF ISSUES
This matter
involves the following issues:
(1) Was a judgment for $114,600 obtained against
the Respondent in November 2007 in connection with a lawsuit alleging
negligence and breach of contract by Respondent in the construction of a
(2) Has the Respondent failed to satisfy that
judgment?
(3) If so, is the Respondent subject to
discipline because he has demonstrated financial irresponsibility and/or has
performed in breach of contract?
Based upon all of the files, records and proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On May 30, 2008, a copy of the Notice and Order for Hearing,
Order for Prehearing Conference, Order to Show Cause, and Statement of Charges
in this matter was sent via first class mail to Charles Owen Heidemann III at
his most recent address on file with the Department of Labor and Industry.[1] The U.S. Postal Service did not return that Notice
to the Department as undelivered or undeliverable.
2.
The Notice and Order for Hearing, Order for Prehearing
Conference, Order to Show Cause, and Statement of Charges scheduled a
prehearing conference in this matter for July 23, 2008, at 1:30 p.m. at the
Office of Administrative Hearings,
3.
On June 23, 2008, an individual who identified himself as the
Respondent called the Office of Administrative Hearings and informed the Office
that he would not contest this matter and he understood that he would lose his
license as a result.
4.
The Respondent did not appear at the prehearing conference
scheduled for July 23, 2008, did not obtain the Administrative Law Judge’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.
5.
The Notice and Order for Hearing, Order for Prehearing
Conference, Order to Show Cause, and Statement of Charges contained the
following warning:
Respondent’s
failure to appear at the prehearing conference may result in a finding that
Respondent is in default, that the Department’s allegations in the Statement of
Charges may be accepted as true, and that its proposed disciplinary action may
be upheld.[3]
6.
Because Respondent failed to appear at the prehearing
conference, he is in default.
7.
Pursuant to Minn. R. 1400.6000, the allegations contained in
the Notice and Order for Hearing, Order for 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 are
authorized to consider the charges against Respondent under Minn. Stat.
§§ 14.50 and 326.91.
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.
The Respondent is in default herein as a result of his
failure to appear at the prehearing conference.
Under Minn. R. 1400.6000, a contested case may be decided adversely to a
party who defaults. On default, the
allegations and the issues set out in that Notice and Order for Hearing or
other pleadings may be taken as true or deemed proved without further evidence.
5.
A homeowner obtained a judgment against the Respondent in
the amount of $114,600 in November 2007 in a suit alleging negligence and
breach of contract in the construction of a
6.
Minn. Stat. § 326.91 empowers the Commissioner to take
disciplinary action against the Respondent, as a result of the Respondent’s
violations of that statute.
7.
The imposition of 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 such disciplinary action against the Respondent as
he considers appropriate under the circumstances.
Dated: August 19, 2008.
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s/Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Default (no digital
recording)
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 Scott Brener, 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 First Class Mail of Jean-Anne Gates dated May 30, 2008.
[2] Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges at 1.
[3]
[4] The Notice of and Order for Hearing, Order for Prehearing Conference, Order to Show Cause, and Statement of Charges asserted that the Respondent had demonstrated financial irresponsibility in violation of Minn. Stat. § 326.91, subd. 1(6), and had performed in breach of contract in violation of Minn. Stat. § 326B.84, subd. 1(4). The correct citations for the statutes relating to these violations are Minn. Stat. § 326.91, subd. 1(15) and (4).