8-6372-17578-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Kevin Hagen,

                                           Complainant,

vs.

 

Patrick Evens,

                                             Respondent.

NOTICE OF DETERMINATION OF

PRIMA FACIE VIOLATION

 AND

 NOTICE OF AND ORDER FOR PROBABLE CAUSE HEARING

TO:  Kevin Hagen, 230 1st Street SW, Richmond, MN  56368; and Patrick Evens, 545 1st Street NW, Richmond, MN  56368.

On October 16, 2006, Kevin Hagen filed a Complaint with the Office of Administrative Hearings alleging that Patrick Evens violated Minnesota Statutes § 211B.13.  After reviewing the Complaint and attached exhibits, the undersigned Administrative Law Judge has determined that the Complaint sets forth a prima facie violation of Minnesota Statutes § 211B.13.

          THEREFORE, IT IS ORDERED AND NOTICE IS GIVEN that this matter is scheduled for a probable cause hearing to be held by telephone before the undersigned Administrative Law Judge at 9:00 a.m. on Friday, October 20, 2006.  The hearing will be held by call-in telephone conference.  You must call: 1-888-677-3757 at that time.  Follow the directions and enter the numeric pass code “17578” when asked for the meeting number.  The probable cause hearing will be conducted pursuant to Minnesota Statutes § 211B.34.  Information about the probable cause proceedings and copies of state statutes may be found online at www.oah.state.mn.us and www.revisor.leg.state.mn.us.

          At the probable cause hearing all parties have the right to be represented by legal counsel, by themselves, or by a person of their choice if that choice is not otherwise prohibited as the unauthorized practice of law.  In addition, the parties have the right to submit evidence, affidavits, documentation and argument for consideration by the Administrative Law Judge.  Parties should provide to the Administrative Law Judge all evidence bearing on the case, with copies to the opposing party, before the telephone conference takes place.  Documents may be faxed to Judge Lipman at 612-349-2665. 

          At the conclusion of the probable cause hearing, the Administrative Law Judge will either: (1) dismiss the complaint based on a determination that the complaint is frivolous, or that there is no probable cause to believe that the violation of law alleged in the complaint has occurred; or (2) determine that there is probable cause to believe that the violation of law alleged in the complaint has occurred and refer the case to the Chief Administrative Law Judge for the scheduling of an evidentiary hearing.  Evidentiary hearings are conducted pursuant to Minnesota Statutes § 211B.35.  If the Administrative Law Judge dismisses the complaint, the complainant has the right to seek reconsideration of the decision on the record by the Chief Administrative Law Judge pursuant to Minnesota Statutes § 211B.34, subdivision 3.

          Any party who needs an accommodation for a disability in order to participate in this hearing process may request one.  Examples of reasonable accommodations include wheelchair accessibility, an interpreter, or Braille or large-print materials.  If any party requires an interpreter, the Administrative Law Judge must be promptly notified.  To arrange an accommodation, contact the Office of Administrative Hearings at 100 Washington Avenue South, Suite 1700, Minneapolis, MN 55401, or call 612/341-7610 (voice) or 612/341-7346 (TTY).

 

Dated:  October 17, 2006

 

                   

                                                  /s/ Eric L. Lipman _________

ERIC L. LIPMAN

                                                                      Administrative Law Judge

 

 

 

MEMORANDUM

Respondent Patrick Evens is a candidate for mayor of Richmond, Minnesota.  The Complaint alleges that Respondent Evens arranged to have free ice cream given away at Casey’s gas station on October 13, 2006.  A sign on the ice cream machine stated: “Ice cream donated by Pat Evens.”  The Complainant alleges that he asked the manager at Casey’s about the sign, and the manager stated that Respondent Evens requested that a sign be placed on the machine informing people that he had donated the ice cream.  The Complaint alleges that the ice cream donation violates Minnesota Statutes § 211B.13. 

Minnesota Statutes § 211B.13 provides as follows:

A person who willfully, directly or indirectly, advances, pays, gives, promises, or lends any money, food, liquor, clothing, entertainment, or other thing of monetary value, or who offers, promises, or endeavors to obtain any money, position, appointment, employment, or other valuable consideration, to or for a person, in order to induce a voter to refrain from voting, or to vote in a particular way, at an election, is guilty of a felony.  This section does not prevent a candidate from stating publicly preference for or support of another candidate to be voted for at the same primary or election.  Refreshments of food or nonalcoholic beverages of nominal value consumed on the premises at a private gathering or public meeting are not prohibited under this section.

The key issue is whether there has been a giving of “money, food … or other thing of monetary value” to a person “in order to induce a voter to refrain from voting or to vote in a particular way” at an election.  If the evidence at a hearing were to establish that the Respondent provided the ice cream in order to induce voters to vote for him, those facts may establish a violation of Minnesota Statutes § 211B.13.  The Administrative Law Judge therefore determines that the Complaint has alleged a prima facie violation of Minnesota Statutes § 211B.10.  The allegations will proceed to a probable cause hearing.

 

                                                                                E.L.L.