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OAH 2-2700-21675-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF REVENUE
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In the Matter of the Revocation of the Asbestos Site Supervisor License of Michael P. Batkiewicz |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on before
Administrative Law Judge Raymond R. Krause (“ALJ”) on December 10, 2010, for
hearing at the Office of Administrative Hearings,
Cecilia K. Morrow, Attorney, Department of Revenue, appeared on behalf of the Minnesota Department of Revenue (“Department”). The Respondent, Michael P. Batkiewicz, did not appear in person or by counsel. The record closed upon the Respondent’s default on December 10, 2010.
The Notice of and Order for Hearing was sent to the Respondent at the address found on the service list and was not returned as undelivered.
STATEMENT OF ISSUE
Did Respondent fail to file tax returns
with the Minnesota Department of Revenue for any of the tax years 2000, 2002,
2003, 2004, 2005, or 2006 thereby subjecting his Asbestos Site Supervisor
License to revocation pursuant to Minn. Stat. § 270C.72?
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF
FACT
1.
On November 4, 2010, the Notice of and Order for Hearing and
Notice of Appearance was sent by first class mail to Michael P. Batkiewicz at
the address listed on the “Affidavit of Mailing to Last Known Address” dated
November 4, 2010. It was not returned to
the Department.
2.
The Respondent failed to appear at the hearing, did not
obtain the ALJ’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.
3.
The Notice of and Order for Hearing contained the following
informational warning:
Respondent’s failure to appear at the hearing may result in a finding
that the Respondent is in default, that the Department’s allegations contained
in this Notice and Order may be accepted as true, and its proposed action may
be upheld.
4.
Because Respondent failed to appear, he is in default.
5.
Pursuant to Minn. R. 1400.6000, the allegations contained in
the Notice of 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 of Revenue
are authorized to consider the charges against Respondent under Minn. Stat. §
270C.72.
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 substantive
and 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 that Notice of and Order
for Hearing or other pleading may be taken as true or deemed proved without
further evidence.
5.
The Respondent is in default herein as a result of his
failure, without the ALJ’s prior consent, to appear at the hearing.
6.
Respondent failed to file tax returns to the Department for
any of the tax years 2000, 2002, 2003, 2004, 2005, or 2006.
7.
Disciplinary action against the Respondent is in the public
interest.
8.
This Order is effective December, 20, 2010.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED: that the Commissioner of the Department of Revenue give notice to
the Department of Health that the Asbestos Site Supervisor License Number
AS7463, issued to Michael P. Batkiewicz, be revoked.
Dated: December 13, 2010
s/Raymond R. Krause
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RAYMOND
R. KRAUSE Chief
Administrative Law Judge |
Reported: Default
This Report is a recommendation, not a final decision. The Commissioner of Revenue will make the final decision after reviewing the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. 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 the Office of the Commissioner, to ascertain the procedure for filing exceptions or presenting argument to the Commissioner.
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.