COMMONWEALTH OF MASSACHUSETTS


DIVISION OF ADMINISTRATIVE LAW APPEALS


Suffolk, ss.

Docket No. LB-08-437

MICHAEL JILES, MICHELLE KULCZYK-JILES AND ROBERTS,

Petitioners

v.

OFFICE OF THE ATTORNEY GENERAL- FAIR LABOR DIVISION,

Respondent


ORDER OF DISMISSAL


Appearance for the Petitioners:

Michael Jiles and Michelle Kulczyk-Jiles,

46 Irvington St., Springfield, MA 01108


Appearance for Respondent:

James P. Clark, Esq.,

Assistant Attorney General, Office of the Attorney General-Fair Labor Division, 1350 Main St., Springfield, MA 01103


Administrative Magistrate:

Mark L. Silverstein, Esq.


Summary of Decision

An appeal challenging a citation issued by the Attorney General's Fair Labor Division, ordering the petitioners to pay $2,272.50 in restitution and a $1,000 civil penalty for their unintentional failure to make timely wage payments to four employees, in violation of M.G.L. c. 149, § 148, is dismissed for lack of prosecution, because the petitioners did not appear at the prehearing conference or respond to a subsequent order to show cause, and the citation is affirmed.

ORDER OF DISMISSAL

The petitioners, Michael Jiles, Michelle Kulczyk-Jiles and Robert's, [fn. 1] appealed a citation issued to them by the Office of the Attorney General- Fair Labor Division (No. WHO80105) on June 23, 2008 for an unintentional failure to make timely payment of wages to four employees for work performed between October 15, 2007 and November 2, 2007, in violation of M.G.L. c. 149, § 148. The citation ordered the petitioners to pay $2,272.50 in restitution and a $1,000 civil penalty, for a total of $3,272.50. In their single-paragraph appeal, the petitioners asserted that the individuals in question "received pay they have not claimed and claimed many hours they did not work." They gave their address as "Robert's at 67 Liberty Street Springfield MA 01103."

The Division of Administrative Law Appeals (DALA) issued to the parties, on July 14, 2008, a notice of prehearing conference scheduled for August 1, 2008. The notice was mailed to the petitioners at the Liberty Street address, the only address given in their appeal. Respondent Office of the Attorney General- Fair Labor Division appeared at the August 1, 2008 prehearing conference. None of the petitioners appeared. On the same day, I issued an order pursuant to 801 CMR 1.01(7)(g)2 directing the petitioners to show cause why this appeal should not be dismissed and the appealed citation made final.

The order to show cause was mailed to the petitioners at the Liberty Street address. This mailing was returned to DALA by the United States Postal Service with the following notation:

RETURN TO SENDER
MOVED LEFT NO ADDRESS
UNABLE TO FORWARD
RETURN TO SENDER

The petitioners had made it difficult for this tribunal to communicate with them, having neither assured that mail sent to the Liberty Street address could be forwarded to them elsewhere nor advised DALA of a different address to which mail should be sent. Neither the Standard Rules of Adjudicatory Practice and Procedure, 801 CMR 1.00 et seq., nor any other applicable regulations, required that DALA mail either the notice of prehearing conference or the order to show cause to the petitioners at any address other than the Liberty Street address furnished in their appeal.

Although DALA was under no obligation to search for an alternative mailing address at which the petitioners could receive notices, orders and other papers, I was reluctant to dismiss the appeal at that point, however, because a second address for the petitioners-46 Irvington Street in Springfield, Massachusetts-appears on the appealed citation The record did not show whether the citation was mailed to and received by the petitioners at the Irvington Street address, and the petitioners did not list this address in their appeal. On August 27, 2008 I issued, out of an abundance of caution, a revised order directing the petitioners to file and serve a response showing cause, by September 12, 2008, why this appeal should not be dismissed and the appealed citation made final, based upon their failure to appear at the August 1, 2008 prehearing conference. The order also directed the petitioners to identify, with a full name and a current mailing address, the person who was authorized to receive copies of papers filed, and notices, orders and decisions issued, in this appeal. In addition, it advised the petitioners that failure to file a timely response or to show good cause as the order required would result in the dismissal of this appeal and the finalization of the appealed citation without further notice. The revised order was mailed to the petitioners at the Irvington Street address. In contrast with the original order to show cause that was mailed to the Liberty Street address, the revised order mailed to the Irvington Street address was not returned to DALA by the United States Postal Service.

The petitioners have filed no response to the revised order, and the deadline for doing so has passed. This appeal is therefore dismissed for lack of prosecution, pursuant to 801 CMR 1.01(7)(g)2, and Citation No. WHO80105 is affirmed.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS


Mark L. Silverstein
Administrative Magistrate


Dated: September 25, 2009


Footnotes

1/ "Robert's" is apparently the name of a business operated, or operated formerly, by the individual petitioners located at 67 Liberty Street in Springfield, Massachusetts. The record includes no information about the nature of this business or whether it continues to operate at this or another address.