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OAH Docket No. 16-1902-20032-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE Department
of Labor and Industry
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In the Matter of the T |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This
matter came on for a hearing before Administrative Law Judge Manuel J.
Cervantes on Wednesday, February 4, 2009, at the
Michael
J Tostengard, Assistant Attorney General,
1.
Whether the
Respondent has performed in breach of contract in violation of Minn. Stat. § 326.91,
subd. 1(4) (2006)?
2.
Whether the
Respondent has demonstrated financial irresponsibility in violation of Minn.
Stat. § 326.91, subd. 1(6) (2006)?
3.
Whether the Respondent
has violated Minn. Stat. § 45.027, subds. 1 and 1a (2006)?
Based
upon the evidence in the hearing record, the Administrative Law Judge makes the
following:
1. On November 13, 2008, a Notice of and Order for Hearing, Order for
Prehearing Conference, and Statement of Charges in this matter was served
upon Respondent at its last known addresses.
The Notice of and Order for Hearing indicated that a prehearing
conference would be held in this matter on February 4, 2009.
2 The Notice and Order for Hearing in this
matter includes the following statements:
Respondent’s failure to
appear at the prehearing conference or 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 its proposed disciplinary action
may be upheld.
…
Pursuant to Minn. Stat.
§ 45.027, subd. 6 (2008), Respondent may be subject to a civil
penalty not to exceed $10,000 per violation upon a final determination that Respondent
violated any law, rule or order.
3. There was no appearance by, or on behalf
of, Respondent T. Campbell Development LLC at the February 4, 2009
prehearing. No prehearing request was
made for a continuance, nor was any communication received by the undersigned
from T Campbell Development LLC.
4. The Statement of Charges alleges that:
A.
The Respondent
was formerly licensed as a residential building contractor by the Department,
License No. 20628140. The license
expired effective March 31, 2008.
B.
The Department
received a complaint from Haro Electric Solutions, Inc. Haro Electric contracted with Respondent to
provide services for a residential home remodeling project in
C.
Centraire
Heating & Air Conditioning, Inc. contracted with Respondent to provide
services for the same home in
D.
Geri Williams, a
E.
Respondent has
failed to respond to the Department’s investigation of the above complaints.
5. The allegations contained in the Statement
of Charges are deemed proven and are incorporated into these Findings by
reference.
Based
upon these Findings of Fact, the Administrative Law Judge makes the following:
1.
The
Administrative Law Judge and the Commissioner of Commerce have jurisdiction in
this matter pursuant to Minn. Stat. §§ 45.027, 82B.03 and 82B.20
(2008).
2.
Respondent
received notice of the charges against him and of the time and place of the
evidentiary hearing. This matter is,
therefore, properly before the Commissioner and the Administrative Law Judge.
3.
Respondent is in
default as a result of his failure, without the Administrative Law Judge’s prior
consent, to appear at the scheduled prehearing conference.
4.
Pursuant to
Minn. R. 1400 6000, a contested case may be decided adversely to a
party who defaults. Upon default, the
allegations and claims set forth in the original Statement of Charges may be
taken as true or deemed proved without further evidence.
5.
Based upon the
facts set forth in the Statement of Charges, Respondent has demonstrated
financial irresponsibility in violation of Minn. Stat. § 326.91,
subd. 1(6) (2006).
6.
Based upon the
facts set forth in the Statement of Charges, Respondent has performed in breach
of contract in connection in violation of Minn. Stat. § 326.91,
subd. 1(4) (2006).
7.
Based upon the
facts set forth in the Statement of Charges, by failing to respond to the
Department’s investigation, the Respondent violated Minn. Stat. § 45.027,
subds. 1 and 1a (2006).
8.
The imposition
of disciplinary sanctions against Respondent is in the public interest.
Based
upon these Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RESPECTFULLY RECOMMENDED that appropriate disciplinary action be taken
against the residential building contractor's license of T. Campbell
Developments, LLC. The undersigned
recommends that discipline be imposed upon Counts I, II, and III of the Statement
of Charges.
Dated: February 12, 2009
s/Manuel
J. Cervantes
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MANUEL J. CERVANTES Administrative Law Judge |
Reported: Digitally Recorded. No transcript prepared.
This
report is a recommendation, not a final decision. The Commissioner of the Minnesota Department
of Labor and Industry will make the final decision after a review of the
record. The Commissioner may adopt,
reject or modify the 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
Nancy Leppink, General Counsel, Department of Labor and Industry,
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.