TRB-87-100-BC
2-3001-1642-2
IRCC 57498/C-87-82
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE TRANSPORTATION REGULATION BOARD
In the Matter of the Minnesota
Department of Transportation,
Complainant, FINDINGS OF FACT,
CONCLUSIONS AND
vs. RECOMMENDED ORDER
Erik Anders Waag and Roal
Earl Waag, a/k/a Rollie
Waag, individually and as
partners d/b/a Mighty
Moving and Mighty Movers,
Respondents
The above-entitled matter came on for hearing before Bruce D. Campbell,
Administrative Law Judge from the State Office of Administrative Hearings on
July 15, 1987, at 9:50 a.m, in the hearing room of the Trarsportation
Regulation Board, Administrative Truck Center, 254 Livestock Exchange
Building, 100 Stockyards Road, South St, Paul, Minnesota.
Appearances: John B. Galus, Special Assistant Attorney General,
515 Transportation Building, St. Paul, Minnesota 55155, appeared on behalf of
Complainant, Minnesota Department of Transportation (Department). Neither
Erik Anders Waag, nor Roal Earl Waag, a/k/a Rollie Waag (Messrs. Waag or
Respondents), appeared at the hearing, either personally or by counsel,
The record closed on July 15, 1987, at the conclusion of the hearing.
Notice is hereby given that, pursuant to Minn. Stat. 14.61, and the
Rules of Practice of the Public Utilities Commission, as applicable to the
Transportation Regulation Board, and the Rules of the Office of Administrative
Hearings, exceptions to this Report, if any, by any party adversely affected
must be filed within 20 days of the mailing date hereof with the
Transportation Regulation Board, Minnesota Administrative Truck Certer,
254 Livestock Exchange Building, 100 Stockyards Road, South St. Paul,
Minnesota 55075. Exceptions must be specific and stated and numbered
separately. Proposed Findings of Fact, Conclusions and Order should be
included, and copies thereof shall be served upon all parties. If desired, a
reply to exceptions may be filed and served within ten days after the service
of the exceptions to which reply is made. Oral argumert before a majority of
the Board may be permitted to all parties adversely affected by the
Administrative Law Judge's recommendation who request such argument. Such
request must accompany the filed exceptions or reply, and an original and five
copies of each document must be filed with the Board.
The Minnesota Transportation Regulation Board will make the final
determination of the matter after the expiration of the period for filing
exceptions as set forth above, or after oral argument, if such is requested
and had in the matter.
Further notice is hereby given that the Board may, at its own discretion,
accept or reject the Administrative Law Judge's recommendation and that said
recommendation has no legal effect unless expressly adopted by the Board as
its final order.
STATEMENT OF ISSUES
The hearing was ordered to consider the Complaint filed against Erik Waag
and Roal Waag, d/b/a Mighty Moving and Mighty Movers, by the Minnesota
Department of Transportation, pursuant to Minn. Stat. 221.293 (1986)
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. On March 5, 1987, the Department of Transportation filed with the
transportation Regulation Board a verified Complaint against Erik Waag and
Roal Waag pursuant to Minn. Stat. 221.293 (1986), alleging violations of
Minnesota Statutes ch. 221 (1986). A copy of the Complaint is attached hereto
as Exhibit A and made-a part hereof.
2. By letter dated March 16, 1987, the Transportation Regulation Board,
through Lorraine E, Mayasich, Vice-Chairman, directed that the Respondents
reply to the Complaint within 20 days of the date of the letter. A copy of
the Complaint was also served on the Respondents. The Respondents did not
file an Answer to the Complaint.
3. On June 10, 1987, the Transportation Regulation Board issued a Notice
of Hearing, Statement of Complaint and Show Cause Order, The Notice restated
the allegations of the Complaint and required the Respondents to appear at a
hearing to be held commencing at 9:30 a.m. on Wednesday, July 15, 1987, in the
Board's hearing room at the Administrative Truck Center, 254 Livestock
Exchange Building, 100 Stockyards Road, South St. Paul, Minnesota, Page 3 of
the Notice of Hearing contained the following statement:
If Respondent fails to attend or otherwise appear at the
hearing in this matter after having been served with a copy
of this Order, Respondent shall be deemed in default, and
the allegations or issues set forth in the Complaint shall
be deemed proved, and the Board shall issue an Order
directing that Respondent cease and desist from the
allegations contained in the Complaint.
4. On June 10, 1987, Carol Halverson, an employee of the Transportation
Regulation Board, served a copy of the Notice of Hearing, Statement of
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Complaint and Show Cause Order on Respondents at the address they had provided
to-the Board, 5129 Abbott Avenue South, Minneapolis, Minnesota 55410.
5. Neither Erik Waag, nor Roal Waag appeared at the hearing personally
or through counsel, They did not otherwise communicate with the
Administrative Law Judge regarding the hearing.
6. The allegations of the Complaint were recently litigated before the
Board in a motor carrier proceeding in which Erik Waag and Roal Waag sought
authority from the Transportation Regulation Board to provide transportation
services as irregular route household goods movers. In the Matter of the
Petition of Erik and Rollie Waag for irregular Route Common Carrier Permit
Authority to Transport Household Goods Restricted to the Transportation of
Personal Effects-and Propertv Used or to Be Used Bv Its Owner in His or Her
Dwelling Between Points Located in the Counties of Hennepin, Anoka, Ramsey,
Dakota, Washington, Carver and Scott, TRB-87-045-AK, 6-3001-1153-2, IRCC
57498/A-86-464.
7. In a document entitled Findings of Fact, Conclusions and Recommended
Order and Memorandum issued by the Administrative Law Judge in that proceeding
on April 2, 1987, it was determined that Erik and Rollie Waag had engaged in
the illegal activities described in the Complaint See Findings of Fact 9-17
and Conclusion 3 thereof.
8. By Order dated June 10, 1987, the Transportation Regulation Board
adopted verbatim the Findings of Fact, Conclusions and Recommended Order of
the Administrative Law Judge as its final Order in the authority proceeding.
The time for an appeal from the final Order of the Board has expired No
appeal has been filed and the Board's Order is not now subject to
reconsideration or judicial review,
9. As a consequence of Findings I - 8, supra, the allegations of the
Complaint attached hereto regarding violations of Minn. Stat ch. 221 (1986)
are established both on grounds of default and res judicata. Such allegations
are hereby adopted as if fully set forth herein.
10. The Respondents currently have no motor carrier authority to provide
service in Minnesota.
Based on the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Transportation Regulation Board
have jurisdiction over the subject matter of the hearing pursuant to Minnesota
Statutes 221.293 (1986).
2. Proper notice of the hearing was timely given, and all relevant
substantive and procedural requirements of law or rule have been fulfilled
and, therefore, the matter is properly before the Administrative Law Judge and
the Transportation Regulation Board,
3. As a consequence of Finding 9, supra, the violations of Minnesota
Statutes ch, 221 enumerated in the Complaint have been established.
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4. As a consequence of Conclusion 3, supra, and Finding 10, supra, a
cease and desist order against the Respondents should be issued by the
Transportation Regulation Board, pursuant to Minn. Stat. 221.293 (1986).
THIS REPORT IS NOT AN ORDER. THE TRANSPORTATION REGULATION BOARD HILL ISSUE
THE FINAL ORDER IN THIS PROCEEDING WHICH MAY ADOPT OR DIFFER FROM THE
FOLLOWING RECOMMENDATION.
Based on the foregoing Conclusions, it is the Recommendation of the
Administrative Law Judge to the Board that it issue the following:
ORDER
Erik Anders Haag and/or Roal Earl Haag, a/k/a Rollie Haag, individually
and as partners, d/b/a Mighty Moving and Mighty Movers, and as partners or
principals in any other business enterprise not possessing the requisite motor
carrier authority shall immediately cease and desist from operating or
advertising or otherwise holding themselves out to Le a motor carrier.
Further, they shall, within 30 days of the date of this Order, remove any and
all public advertisements or notices presently posted on appearing which hold
them out to be a motor carrier or to be authorized to provide the services of
a motor carrier under Minnesota Statutes ch, 221 (1986),
Dated this 17th day of July, 1987.
BRUCE D. CAMPBELL
Administrative Law Judge
NOTICE
Pursuant to 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
c I ass mai I .
Reported: Tape Recorded, Default.
MEMORANDUM
Despite repeated attempts by both the Board and the Administrative Law
Judge to secure the presence of Erik Anders Waag and Roal Earl Waag, a/k/a
Rollie Waag, at the hearing scheduled herein to respond to the Complaint
brought by the Minnesota Department of Transportation, a default occurred.
Under the Notice and Order for Hearing and the Administrative Procedure Act,
that default, alone, is sufficient to support the Order herein recommended.
It is important to note, however, that this proceeding transcends the
normal incidence of default. As noted in the Findings, the allegations of the
Complaint were fully litigated before the Board in a previous authority
proceeding at which Erik Haag and Roal Haag did appear and were represented by
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counsel. In fact, the record of that proceeding includes their admissions of
the illegal acts complained of. The Administrative Law Judge found that the
acts included in the Complaint had occurred. That determination was
specifically adopted by the Transportation Regulation Board and the
Respondents did not appeal from that Order of the Board. Under such
circumstances, relitigation of the veracity of the claims is prohibited by
principles of res judicata and collateral estoppel. Travelers Insurance
Co. v. son, 163 N.W.2d 289, (Minn. 1968); Willems v. Commissioner of
Public Safety, 333 N.W.2d 619, 621 (Minn, 1983); State Department of Public
Safety v. House, 192 N.W.2d 93 (Minn. 1971); Matter of Estate of Conqdon,
309 N.N.2d 261 (Minn. 1981); State of Minnesota, city of Burnsville v. Juarez,
345 N.W.2d 801 (Minn App 1984).
B.D.C.