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15-3001-20066-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER TRANSPORTATION
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In the Matter of Carl Ybarra’s Application for a Variance From Special Transportation Service Operating Standards |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge Beverly Jones Heydinger (“ALJ”) on December 29, 2008,
at the Office of Administrative Hearings,
Michael A. Sindt, Assistant Attorney General, appeared on behalf of the Minnesota Department of Transportation (“Department”). Joan Willshire, Executive Director, and Kelly Schroepfer appeared on behalf of the Minnesota State Council on Disability. The Respondent, Carl Ybarra, did not appear in person or by counsel. The record closed upon the Respondent’s default on December 29, 2008.
STATEMENT OF ISSUE
Did
the Department lawfully deny the Respondent’s request for a variance under
Minnesota Rules Part 8840.6300[1]?
The
Administrative Law Judge recommends that the Department’s decision to deny
Respondent’s request for a variance be affirmed.
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
On November 19, 2008, a copy of the Notice and Order for
Hearing was delivered via first class and certified mail to the Respondent at
his address,
2.
On November 25, 2008, the Administrative Law Judge sent a
letter to the Respondent notifying him of the hearing and providing
information. The letter was not
returned.
3.
On December 8, 2008, the Office of Administrative Hearings
received a signed Notice of Intention to Appear at the hearing from the
Respondent.
4.
The Respondent failed to appear at the hearing, and did not
request a continuance or any other relief.
5.
The Notice and Order for Hearing contained the following
informational warning:
Should a party fails [sic] to
appear at the hearing, the allegations made by other parties may be taken as
true, and the positions of other parties may be adopted without contest by the
commissioner.
6.
Because Respondent failed to appear, he is in default.
7.
Following the scheduled hearing, the Respondent left a
telephone message for the Department’s counsel that he did not intend to
appear.
8.
Pursuant to Minnesota Rules, part 1400.6000, the allegations
contained in the Notice and Order for Hearing, and the documents attached
thereto, are taken as true and incorporated by reference into these Findings of
Fact.[2]
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner of Transportation
are authorized to consider the charges against Respondent under Minn. Stat. §
14.50 and Minn. R. pt. 8840.6400.
2.
Respondent received due, proper and timely notice of the
charges against him, and of the time and place of the prehearing
conference. 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 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 prehearing
conference.
6.
Respondent was not qualified to operate a special
transportation service vehicle because his driving record was not clear of
convictions for driving a motor vehicle without a valid current license for the
class of vehicle driven, as required by Minn. R. pt. 8840.5900, subp. 11 B.
7.
By failing to appear and offer evidence, Respondent failed
to demonstrate that he should be granted a variance to operate a special
transportation service vehicle, as set forth in Minn. R. pt. 8840.6300.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED: that the Commissioner of Transportation affirm the Department’s
decision to deny the Respondent’s request for a variance pursuant to Minn. R.
8840.6300.
Dated this 7th day of January, 2009.
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s/Beverly Jones Heydinger |
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BEVERLY JONES HEYDINGER |
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Administrative Law Judge |
Reported: Default
A-bjh-122909
This report is a
recommendation, not a final decision.
The Commissioner of Transportation, Tom Sorel,
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.