OAH 3-1902-19814-2

DOLI BC2800457/CC

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF LABOR AND INDUSTRY

In the Matter of Jesse Arthur Rundquist, individually and d/b/a Triple E 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 2:30 p.m. on October 2, 2008, at the Office of Administrative Hearings, 600 North Robert Street, St. Paul, MN 55101. The OAH record closed at the conclusion of the prehearing conference.

Michael J. Tostengard, Assistant Attorney General, Suite 1200, 445 Minnesota Street, St. Paul, MN 55101-2130, appeared on behalf of the Department of Labor and Industry (the Department).

Jesse Arthur Rundquist (Respondent) did not appear.

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 engaged in unlicensed residential building contractor activity, in violation of Minn. Stat. §§ 326.84, subds. 1 and 1b (2006)[1];

(2) The Respondent failed to obtain necessary permits for work performed in Roseville, Minnesota, in violation of Minn. Stat. § 326.91, subd. 1(2), and Minn. R. 2891.0040, subp. 1H (2007);

(3) The Respondent performed in breach of contract, in violation of Minn. Stat. § 326.91, subd. 1(4);

(4) The Respondent failed to comply with a Cease and Desist Order issued by the Commissioner, in violation of Minn. Stat. § 326.91, subd. 1(5); and

(5) The Respondent failed to respond to the Department’s requests for information, in violation of Minn. Stat. § 45.027, subds. 1 and 1a.

Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On July 30, 2008, the Commissioner sent by first class mail a copy of the Notice of and Order for Hearing, Order for Prehearing Conference, and Statement of Charges (Notice and Order for Hearing) to the Respondent at 12125 Auburn Road, Grasston, Minnesota 55030-3198, and 31795 Lakeway Drive NE, Cambridge, Minnesota 55008.[2]

2. The Notice and Order for Hearing scheduled a prehearing conference in this matter at 2:30 p.m. on October 2, 2008, at the Office of Administrative Hearings, 600 North Robert Street, St. Paul, Minnesota.

3. The Notice and Order for Hearing specifically notified the Respondent that failure to appear at the hearing 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.[3]

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 (2007), 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 Minn. R. 1400.6000, a contested case may be decided adversely to a party who defaults. On default, the allegations set out in the Notice and Order for Hearing or other pleadings may be taken as true or deemed proved without further evidence. A default occurs when a party fails to appear without the prior consent of the judge at a prehearing conference, settlement conference, or a hearing or fails to comply with any interlocutory orders of the judge.

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.[4] The Commissioner may take adverse action against an agent owner who engages in unlicensed building contractor activity.[5]

7. The Respondent engaged in unlicensed building contractor activity in connection with work done on the Damm residence in Roseville, Minnesota.

8. Building contractors must obtain necessary permits and inspections from local building authorities.[6]

9. The Respondent failed to obtain necessary permits and inspections in connection with work done on the Damm residence in Roseville, Minnesota.

10. The Commissioner may take adverse action against an agent owner who performs in breach of contract so as to cause injury or harm to the public.[7]

11. The Respondent performed in breach of contract in connection with work performed on the Damm residence in Roseville, Minnesota.

12. A Cease and Desist Order dated February 3, 2005, prohibited the Respondent from engaging in unlicensed residential building contractor activities. The Respondent continued to offer to perform residential building contractor services without a license, in violation of Minn. Stat. § 326.91, subd. 1(5).

13. The Commissioner may take adverse action against an agent owner who fails to respond to the Department’s requests for information.[8]

14. The Respondent failed to respond to the Department’s requests for information about this matter in February and March 2008, in violation of Minn. Stat. § 45.027, subds. 1 and 1a.

15. Disciplinary action against the Respondent is in the public interest.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Commissioner take disciplinary action against the Respondent.

Dated: October 7, 2008.

s/Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

Reported: Default

NOTICE

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, 443 Lafayette Road North, St. Paul, MN 55155, or call the Department at (651) 284-5005, to learn about the procedure for filing exceptions or presenting argument.

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] All references are to the 2006 edition of Minnesota Statutes, unless otherwise noted.

[2] Affidavit of Service by U.S. Mail (July 30, 2008).

[6] Minn. Stat. § 326.91, subd. 1(2), and Minn. R. 2891.0040, subp. 1H (2007).