6-3000-11969-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF TRANSPORTATION

In the Matter of Dunninck Bros., Inc., Contract No. S98320

ORDER

On February 10, 1999, the Honorable Michael F. Fetsch of the Ramsey County District Court, issued an order in a related case, determining that the Department of Transportation was in constructive willful contempt of earlier court orders due, in part, to its having commenced this administrative enforcement proceeding as well as at least one other similar matter, without having a definition of the term “commercial establishment” adopted through the administrative rulemaking process.

On February 12, counsel for Dunninck Bros. requested that this administrative action be dismissed with prejudice in light of the District Court order.

On February 19, a conference call was held involving counsel for the parties in the administrative proceeding, along with Administrative Law Judges Klein and Mihalchick, in order to take input on the Motion to Dismiss and related matters.

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

ORDER

1. That Respondent’s Motion to Dismiss With Prejudice is DENIED at this time.

2. That all further proceedings in the above-captioned administrative proceeding be stayed, pending the outcome of a Motion to Stay, which has been filed with the Ramsey County District Court by the Department of Transportation.

3. The attached Memorandum is incorporated herein.

Dated this

24^th

day of

February

1999.

ALLAN W. KLEIN

Administrative Law Judge

Reported: Taped

MEMORANDUM

The administrative hearing in this matter had commenced on January 19. Testimony was taken on that date, as well as January 20, February 2, 3, and 4. It was anticipated at the close of testimony on February 4 that one additional day of hearing would be needed. It was agreed that the hearing would reconvene on March 10.

On February 10, the District Court issued its order. On February 18, the State filed a Motion for Stay with the District Court, seeking a clarification of the Court’s earlier order with regard to the impact of that order on this administrative proceeding. A hearing is scheduled for March 4 on that motion.

The Administrative Law Judge has decided that it is appropriate to delay any further consideration of the Motion to Dismiss or the scheduling of any further proceedings in this administrative matter until after the District Court has an opportunity to rule on the State’s motion. If the court rules on March 4 that the administrative proceeding can continue, then the Administrative Law Judge will expect the parties to proceed with the previous schedule and conclude testimony at a March 10 hearing. If the Court rules on March 4 that the administrative proceeding should not continue, then, of course, there will be no March 10 hearing. If the Court takes the motion under advisement and does not rule on March 4, then there will be no March 10 hearing and there will be no further proceedings in the administrative case until the District Court does rule on the motion.

AWK