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OAH 58-1902-19935-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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In the Matter of
David William Halvorson, individually, and d/b/a Du-All Handyman |
FINDINGS
OF FACT, CONCLUSIONS
AND RECOMMENDATION |
The above-entitled matter came on for a prehearing conference before Administrative Law Judge Linda F. Close (the ALJ), on October 27, 2008, at the Office of Administrative Hearings, 600 Robert St., St. Paul, MN 55164. The hearing was held pursuant to a Notice of and Order for Prehearing Conference, dated October 1, 2008.
Christopher M. Kaisershot, Assistant Attorney General, appeared on behalf of the Department of Labor and Industry (Department). The Respondent, David William Halvorson (Respondent) did not appear in person or by counsel.[1] The record closed on October 29, 2008, when the affidavit of counsel for the Department in support of its motion for default was received.
1. Did Respondent hold himself out as a licensed residential building contractor, remodeler, or roofer without holding a license issued by the Commissioner in violation of Minn. Stat. § 326B.805, subds. 1 and 1b?
2. Did Respondent engage in fraudulent, deceptive or dishonest practice by performing construction without applicable local permits and inspection in violation of Minn. Stat. § 326B.805, subd. 1(2)?
3. Did Respondent perform negligently or in breach of a contract in violation of Minn. Stat. § 326B.805, subd. 1 (4)?
Based on all of the files, records, and proceedings herein, the Administrative Law Judge makes the following:
1.
On October 1, 2008, a copy of the Notice of and
Order for Prehearing Conference was sent to Respondent, as appears from an
Affidavit of Service by Mail on file herein.
The address was the address that the Respondent had most recently
provided to the Department in connection with his licensure in the State of
2. The Notice of and Order for Prehearing Conference scheduled a prehearing for October 27, 2008, at 9:30 a.m. at the Office of Administrative Hearings.
3. Respondent did not appear at the October 27, 2008, prehearing, did not obtain the Administrative Law Judge’s prior approval to be absent from the prehearing and did not request that the prehearing be rescheduled or any other relief from attending it.
4. The Notice of and Order for Prehearing Conference contained the following informational warning:
Respondent’s failure to appear at the hearing or any prehearing conference or any failure to comply with an order of the Administrative Law Judge, may result in a finding that Respondent is in default, that the Department’s allegations contained in this Notice and Order may be accepted as true, and that its proposed action may be upheld.
5. Because Respondent failed to appear at the hearing, he is in default.
6. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Hearing are taken as true and are incorporated into these Findings of Fact.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Commissioner are authorized to consider the charges against Respondent pursuant to Minn. Stat. §§ 326B.081-.085, and 14.50.
2. Respondent received due, proper and timely notice of the charges against him and of the time and place of the hearing. 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 the Notice of and Order for Hearing or other pleadings may be taken as true or deemed proved without further evidence.
5. The Respondent is in default as a result of his failure, without the ALJ’s prior consent, to appear at the scheduled hearing.
6.
Respondent
held himself out as a licensed residential building contractor, remodeler, or
roofer without holding a license issued by the Commissioner in violation of
Minn. Stat. § 326B.805, subd. 1 and 1b.
7.
Respondent
engaged in fraudulent, deceptive or dishonest practice by performing construction
without applicable local permits and inspection in violation of Minn. Stat. §
326B.805, subd. 1(2).
8.
Respondent
performed negligently or in breach of a contract in violation of Minn. Stat. §
326B.805, subd. 1 (4).
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: November 7, 2008
s/Linda
F. Close
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LINDA
F. CLOSE Administrative
Law Judge |
Reported: Default
This
report is a recommendation, not a final decision. The Commissioner of Labor and Industry (the Commissioner)
will make the final decision after a review of the record. The Commissioner may
adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner
shall not be made until this Report has been made available to the parties to
the proceeding for at least ten 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
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, the agency must return the record to the
Administrative Law Judge within 10 working days to allow the Judge to determine
the discipline to be imposed.