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OAH 16-1902-20340-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE Department
of Labor and Industry
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In the Matter of the Kevin William Caswell, d/b/a Caswell Windows and
Siding |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This
matter came on for a prehearing conference before Administrative Law Judge Manuel
J. Cervantes on Thursday, April 23, 2009, at the
Christopher
M. Kaisershot, Assistant Attorney General, appeared on behalf of the Minnesota
Department of Commerce (Department).
There
was no appearance by, or on behalf of, Respondent Kevin William Caswell after
due notice by
1.
Whether the
Respondent violated Minn. Stat. §§ 326.84, subd. 1 and 1b; 326.842; and 326.91,
subd. 1(5) (2006) by advertising and entering into a contract to provide
residential services and engaging in unlicensed residential building contractor
work?
2.
Whether the
Respondent violated Minn. Stat. § 326.91, subd. 1(5)
(2006)?
Based
upon the evidence in the hearing record, the Administrative Law Judge makes the
following:
1. On March 23, 2009, a Notice and Order for Prehearing Conference
and Statement of Charges in this matter were mailed to the Respondent’s
last known address. The Notice of and
Order for Prehearing Conference indicated that a conference would be held in
this matter on April 23, 2009.
2. The Notice and Order for Prehearing Conference in this matter includes
the following statements:
Respondent’s failure to
appear at the prehearing conference, settlement conference, or the hearing, or
failure to comply with any order of the Administrative Law Judge, 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 Respondent
may be subject to discipline by the Commissioner, including revocation,
suspension, censure, or the imposition of civil penalties.
Pursuant to Minn. Stat.
§ 45.027, subd. 6 (2006), 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 related to the duties and
responsibilities entrusted to the Commissioner.
3. There was no appearance by, or on behalf
of, Respondent Kevin William Caswell at the April 23, 2009 prehearing
conference. No prehearing request was
made for a continuance, nor was any communication received by the undersigned
from Kevin William Caswell.
4. The Statement of Charges alleges that:
A.
The Respondent is
not licensed in any capacity by the Department.[1]
B.
On November 30,
2006, Kevin Caswell, individually, and d/b/a Choice Exteriors, signed a Consent
and Desist Order, which required him to refrain from any further work as a
residential building contractor, remodeler, or roofer in the State of
Minnesota.
C.
In July 2007,
following a storm that caused damage to homes in and around
D.
On July 18,
2007, Respondent entered into a $14,075 contract with a Harris homeowner to
replace siding, facia, and gutters, as well as to re-roof the entire home.
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 are authorized to consider the
charges against Respondent under Minn. Stat. §§ 14.50, 326.84, subd. 1 and
1b; 326.842; 326.91, subd. 1 (5) (2006); and 45.027, subd. 6 (2004).
2.
The Department
sent to Respondent’s last known address the Notice and Order for Prehearing Conference, a Statement of Charges
against him, and of the time and place of the prehearing conference.[2] This matter is, therefore, properly before
the Commissioner and the Administrative Law Judge.[3]
3.
Respondent is in
default as a result of his failure 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 was not licensed by the
Department, as required by Minn. Stat. §§ 326.84 and 326.842 (2006), when he
held himself out as a residential building contractor and roofer.
6.
Based upon the
facts set forth in the Statement of Charges, Respondent has violated the
Consent and Desist Order, executed between Respondent and the Department on
November 30, 2006.
7.
Based upon the
facts set forth in the Statement of Charges, there is a basis for the
imposition of a civil penalty under Minn. Stat. § 45.027, subd.
6. (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 Kevin William Caswell, d/b/a
Caswell Windows and Siding. The
undersigned recommends that discipline be imposed upon Counts I and II of the Statement
of Charges.
Dated: April 28, 2009
s/Manuel
J. Cervantes
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MANUEL J. CERVANTES Administrative Law Judge |
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,
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 Commissioner 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.
[1] The Department’s enabling
legislation was substantially revised and re-codified in Chapter 326B, effective
December 1, 2007. The law in effect at
the time of Respondent’s alleged violations, however, was the 2006 version of
the statute: Minn.Stat. §§ 326.83-326.992
(2006).
[2] The letter was returned as
undelivered, no forwarding address.
[3]