In re the Commercial Dog or Cat Breeder License Issued to Deborah Rowell for Country Pride Kennel

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1334

In re the Commercial Dog or Cat Breeder License
Issued to Deborah Rowell for
Country Pride Kennel

Filed May 7, 2018
Affirmed
Smith, Tracy M., Judge

Minnesota Board of Animal Health
File No. MN829895

Marla R. Butler, Alyssa N. Lawson, Geor ge B. Ashenmacher, Robins Kaplan LLP,
Minneapolis, Minnesota (for relator Animal Humane Society)

Deborah Rowell, Pine River, Minnesota (pro se respondent-licensee)

Lori Swanson, Attorney General, Max Kiel ey, Philip S. Pulitzer, Colin P. O’Donovan,
Assistant Attorneys General, St. Paul, Minne sota (for respondent Minnesota Board of
Animal Health)

Considered and decided by Smith, Trac y M., Presiding Judge; Bjorkman, Judge;
and Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this certiorari appeal, relator Anim al Humane Society (AHS) challenges the
decision by respondent Minnesota Board of Animal Health (the board) to renew respondent
Deborah Rowell’s commercial dog or cat breed er license. AHS argues that Rowell was
convicted of animal cruelty in 2013 and th at the board therefore (1) should never have

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granted Rowell an initial license and (2) should not have renewed, and must revoke,
Rowell’s license. Because AHS’s challenge to Rowell’s initial licensure is time-barred,
and because AHS forfeited its argument that Rowell was convicted of animal cruelty, we
affirm.
FACTS
In 2013, Rowell, who ran a dog-breeding business in Northern Minnesota, entered
an Alford plea1 to a misdemeanor charge of failing to provide adequate shade for a dog or
cat shelter, in violation of Minn. Stat. § 3 46.39, subd. 4 (2012), following the seizure of
133 dogs, who were taken in and found new homes by AHS. The following year, Rowell
applied to the board for a commercial dog or cat breeder license under the newly enacted
Minnesota Commercial Breeders Licensing a nd Enforcement Act, Minn Stat. §§ 347.57-
.64 (2016). The application form requires applic ants to agree that th ey “have never been
convicted, other than a petty misdemeanor conviction, of animal cruelty in a court of law.”
Rowell left this portion of the application blank on her initial application.
As part of the application process, the board inspected Rowell’s facility. During the
inspection, the board’s inspec tor discussed the certification statements with Rowell.
Rowell indicated she was unsure whether her conviction was c onsidered animal cruelty.
The board’s inspector contacted the county attorney’s office that had prosecuted Rowell,
and was in turn directed to the county court administration for copies of the complaint and

1 An Alford plea is a guilty plea in which the defendant maintains his or her innocence but
“reasonably believes, and the record establishes, the state has sufficient evidence to obtain
a conviction.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (citing North Carolina
v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)).

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conviction, and to the county sheriff’s office “[f]or copies of the investigative files,
including photos of the conditio ns in which the animals were kept.” The board obtained
copies of the 2013 criminal complaint and co nviction, but there is no indication that it
reviewed or attempted to obtain the sheriff’s office’s investig ative files. The board also
received input from Rowell’s attorney, who contended that Rowell “was not charged with
animal cruelty.” Based on this information, the board decided not to “go any further with
this” and concluded that Rowell’s conviction was not an impediment to licensure. Rowell
submitted a revised application indicating she had not been co nvicted of animal cruelty,
the board issued a license, and that issuance was publicized in January of 2015.
In February and March of 2015, the boa rd received correspondence from several
entities that objected to Rowell’s licensu re, arguing that Rowell’s 2013 conviction
precluded her licensure. One such entity was AHS. However, AHS did not seek certiorari
review of the board’s initial licensing decision.
In 2016, the board renewed Rowell’s lic ense. Again, AHS did not petition for
certiorari review.
In 2017, the board again renewed Rowell’ s license. This time, AHS petitioned this
court for a writ of certiorari.
D E C I S I O N
“It is a misdemeanor for a commercial bree der to operate without a license.” Minn.
Stat. § 347.62(d). Licenses are issued by the board. Minn. Stat. § 347.58, subd. 1(a).
When a breeder initially app lies for a license, the board must determine, among other
things, whether the applicant “has been convicted, other than a petty misdemeanor

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conviction, of cruelty to anim als under Minnesota law or a substantially similar animal
cruelty law of another jurisdiction.” Id., subd. 1(o)(4). If so, th e board “must refuse to
issue an initial license.” Id., subd. 1(o). Once a breeder ha s received a license, he or she
must renew it annually. Id., subd. 1(i). “[I]f a commercial breeder has been convicted of
cruelty to animals,” then “[t] he board must revoke [the br eeder’s] license.” Minn. Stat.
§ 347.61, subd. 5(b).
AHS argues that Rowell’s 2013 convic tion of violating Mi nn. Stat. § 346.39,
subd. 4, was a conviction of cruelty to animals. AHS asks this court to reverse the board’s
initial-licensure decision on th e ground that Rowell should never have been granted a
license pursuant to Minn. Stat. § 347.58, su bd. 1(o), and to reverse Rowell’s license
renewal and direct the board to revoke Rowell’s license pursuant to Minn. Stat. § 347.61,
subd. 5(b), again on the basis of Rowell’s 2013 conviction. We address each issue in turn.
I. AHS’s objection to Rowell’s in itial licensure is time-barred.
AHS first argues that this court should order the board to nullify Rowell’s license
because it was erroneously granted in 2015. The board responds that this court is without
subject-matter jurisdiction to review the 2015 initial-licensure decision because AHS failed
to timely petition for certiorari re view of that decision. We decide questions of subject-
matter jurisdiction de novo. See Zweber v. Credit River Twp., 882 N.W.2d 605, 608 (Minn.
2016).
“No writ of certiorari shall be issued, to correct any proceeding, unless such writ
shall be issued within 60 days after the party applying for such writ shall have received due
notice of the proceeding sought to be reviewed thereby.” Minn. Stat. § 606.01 (2016). Due

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notice is satisfied by notice “reasonably calc ulated to reach” the affected party. See
Flaherty v. Indep. Sch. Dist. No. 2144 , 577 N.W.2d 229, 233 (Minn. App. 1998), review
denied (Minn. June 17, 1998). “A party’s fa ilure to meet the time requirements of
Minn.Stat. § 606.01 is a jurisdictional defect.” Christopher v. Windom Area Sch. Bd., 781
N.W.2d 904, 908 (Minn. App. 2010), review denied (Minn. June 29, 2010).
Minn. Stat. § 606.01 straightforwardly applies to this case. AHS sent a letter to the
board on March 25, 2015, challenging Rowell’ s licensure as prohibited by Minn. Stat.
§ 347.58, subd. 1(o), based on Rowell’s 2013 conviction. The board provided a written
response to AHS on April 13, 2015, in support of its licensure decision. On April 21, 2015,
AHS again wrote to the board, arguing that Minnesota statutes required denial of the license
because of the conviction. This correspondence demonstrates knowledge of the licensure
and the basis for objecting to it. And regardless of which of these dates is used to measure
AHS’s 60-day deadline for challenging the initial-licensure decision, that deadline expired
long before AHS petitioned for certiorari review.2
AHS contends that its challenge to the initial licensure is not time-barred because
the 2017 renewal was based on the 2015 initi al-licensure determination that Rowell had

2 Despite being neither the licensor nor the li censee, AHS has standing to seek review of
the board’s licensing decision under In re Block, 727 N.W.2d 166 (Minn. App. 2007). In
that case, we held that the Minnesota Fe derated Humane Societies (MFHS), which was
created by statute for the purpose of assisti ng “in the enforcement of the laws for the
prevention of wrongs to animals,” had stat utory standing to contest a conditional-use
permit authorizing a breeder to keep 600 adult breeding dogs at his kennel. Id. at 174. In
this case, this court’s special-term panel held that, because AHS is a member of MFHS and
appoints agents for the purpose of assisting law-enforcement officials in the prosecution of
people charged with cruelty to animals, and because an AHS senior investigator acts as the
Minnesota State Humane Agent on behalf of MFHS, AHS likewise has standing.

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not been convicted of animal cr uelty and because “[i]t is in th e interest of justice not to
immunize the Board from its initial decision to grant Rowell a license, especially where
the Breeder Licensing Law requires the Board to continuously ensu re that commercial
breeders in Minnesota have not been convicted of animal cruelty.” We are unpersuaded.
Regarding AHS’s first argument, the fact th at the board’s 2015 determination may have
continuing relevance to a late r license-renewal decision does not render inapplicable the
statutory 60-day deadline for challenging the initial-licensure decision. Regarding AHS’s
second argument, contrary to AHS’s position, the board is not immunized from review of
its initial-licensure decisions. Rather, parties, assuming they have standing, may challenge
those decisions in a timely manner. AHS’s de cision not to do so here does not make the
board immune to review of its initial licensure decisions.
II. AHS forfeited its argument that Ro well was convicted of animal cruelty
because AHS failed to assert that argument in a timely certiorari challenge to
Rowell’s initial licensure, despite having knowledge of the argument.

AHS next argues that the board erred in renewing Rowell’s license because she was
convicted of animal cruelty in 2013. 3 The board makes several replies, including that

3 In its petition for writ of certiorari and statement of the case, AHS identified the issue for
review as the board’s July 1, 2017 decision to reissue Ro well’s license. That reissue
decision is a quasi-judicial decision subject to certiorari review. In its brief, however, AHS
characterizes as a quasi-judicial decision the board’s continuous failure to revoke Rowell’s
license. “[Q]uasi-judicial decisions share three characteristics: (1) an investigation into a
disputed claim and the weighing of evidentiary facts; (2) the application of those facts to a
prescribed standard; and (3) a binding decision regarding a disputed claim.” Rochester
City Lines, Co. v. City of Rochester , 868 N.W.2d 655, 662 (Minn. 2015). The failure to
meet any of the three characteristics is “fat al” to a claim that proceedings were quasi-
judicial. Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 844 (Minn.
1999). Because there is not “a binding decisi on regarding a disputed claim” being made
each moment the board fails to revoke Rowell’s license, the board’s nonrevocation is not

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Rowell’s 2013 conviction was not a conviction of animal cruelty under Minnesota statutes.
We need not resolve this question, however, because we conclude that AHS’s argument is
barred on another ground: forfeiture.4
The Minnesota Supreme Court has someti mes used the word “waiver” when
referring to a party’s failure to ma ke a timely assertion of a right. See State v. Beaulieu ,
859 N.W.2d 275, 278 n.3 (Minn. 2015); see also Leiendecker v. Asian Women United of
Minn., 895 N.W.2d 623, 631 n. 3 (Minn. 2017) (applying Beaulieu in the context of civil
litigation). However, in Beaulieu, the court explained that “forfeiture is the failure to make
the timely assertion of a right,” whereas “w aiver is the intentional relinquishment or
abandonment of a known right.” 859 N.W.2d at 278 n.3 (quotation omitted). Thus, older
cases nominally discussing wa iver may nevertheless provid e guidance on issues of
forfeiture, provided that those cases concern “the failure to make the timely assertion of a
known right” as opposed to “the intentional relinquishment” of such a right. Id.
A case with a strikingly similar timelin e provides such guidance here. In Evenrud
v. Park & Recreation Bd. of Minneapolis, city employees challenged their reclassification
(resulting in a salary reduction) from “park patrolmen” to “park patrol agents.” 310 Minn.
234, 235-36, 245 N.W.2d 609 , 610 (1976). The reclassifi cation occurred in 1972, but,

a quasi-judicial decision. Our certiorari revi ew is therefore limited to the quasi-judicial
decision of the board’s 2017 license renewal.

4 Although neither party raises the issue of forfeiture, “we may properly decide a case based
on arguments not raised by the parties wh en our reasoning is neither novel nor
questionable.” First Nat’l Bank of the N. v. Miller Schroeder Fin., Inc., 709 N.W.2d 295,
299 (Minn. App. 2006), review denied (Minn. Apr. 26, 2006).

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rather than challenging the reclassification at that time, the park patrol agents, 5 like AHS,
waited two years before seeking formal review. Id. at 237-38, 245 N.W. 2d at 611. In
1974, when the park patrol agents sought fo rmal review, the Minneapolis Civil Service
Commission retroactively reclassified them as “Patrolmen Parks, Permanent Seasonal,
Uncertified Peace Officer[s]” and declared the classification effective as of 1972. Id. The
commission set the salary for that position to be identical to the salary the park patrol agents
had been receiving for the previous two year s, and also made that salary decision
retroactive to 1972. Id. at 238, 245 N.W.2d at 611.
The park patrol agents then sought certiorari review of the reclassification in district
court. Id. After the district court affirmed the retroactive reclassification and retroactive
salary reduction, the park patrol agents appealed to the supreme court. See id. The supreme
court affirmed, holding that “the record indi cates a waiver by appellants of their rights.” 6
Id. at 239, 245 N.W.2d at 612. In so holding, the court not ed that the park patrol agents
were “sent a notice of the proposed reclassification” and “orally briefed on the implications
thereof” in 1972. Id. Despite this knowledge, the park patrol agents “did not file a protest
at the time that the changes were made effective in 1972. A formal objection was not filed

5 The employees were reclassified a second time (albeit with no re duction in salary) to
“Patrolman Parks, Permanent Seasonal, Uncertified Peace Officer[s]” before seeking
certiorari. Id. at 238, 245 N.W.2d at 611. For brev ity “park patrol agents” is used
throughout this opinion.

6 As noted above, older cases did not always distinguish between waiver and forfeiture.
Because Evenrud contains no indication that the park patrol agents “intentionally”
relinquished their rights, it is appropriate to rely on that case in the context of determining
whether or not forfeiture applies. See Beaulieu, 859 N.W.2d at 278 n.3.

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until January 1974.” Id. By taking the new, lowe r-paying positions without timely
objection, the park patrol agen ts “waived whatever rights th ey had at the date of their
reassignment.” Id. at 240; 245 N.W.2d at 612.
Evenrud supports finding a forfeiture by AHS in this case. Like the park patrol
agents with their job reclassification, AHS was aware, two y ears prior to seeking review,
of the board’s determination that Rowell’s 2013 conviction did no t constitute animal
cruelty. And, like the park patrol agents, rather than timely seeking review of that
determination, AHS sat on its rights for two year s. Now, as part of a timely challenge to
the recent renewal decision, AHS seeks to lit igate the determination made two years ago
by the board. We believe this is analogous to the action brought by the park patrol agents
in Evenrud; both the park patrol agents and AHS sought review of a recent decision (there
the retroactive reclassification, here the 2017 renewal) as a means of attacking a past
decision (there the 1972 salary reduction, here the 2015 determination that Rowell was not
convicted of animal cruelty) that could have been challenged at the time the past decision
was made. The same result should obtain in bot h cases: the park patrol agents forfeited
their challenge to the 1972 salary reduction , and AHS has forfeited its challenge to the
2015 determination that Rowell was not convicted of animal cruelty.
We recognize that, unlike in Evenrud, the statutory scheme in this case provides for
explicit renewal decisions each year by the board. Thus, unlike the case of the park patrol
agents, the ultimate decision AHS challenges is not two years old. However, following the
reasoning of Evenrud, we conclude that, when the argument against renewal is identical to

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the argument against initial licensure, a party th at failed to challeng e the initial licensure
cannot raise the same, two-year-old argument in a renewal challenge.
At oral argument, AHS argued it could ra ise this question no w because, between
2015 and 2017, the board was “provided additional information after it granted the initial
license.” AHS contends that, “if that additional information indicates that the conviction
of Ms. Rowell did constitute cruelty, then the board should have considered that
information and have made the decision to re voke or to not renew that license.” We
disagree that such a conclusion is required in this case. Although we do not foreclose the
possibility that, in some cases, additional facts could come to light that would compel the
board to reevaluate whether an individual was convicted of animal cruelty and should not
be granted a renewed license, that is not what occurred in this case. The “additional” facts
to which AHS refers were all known or knowable by the board at the time it made its 2015
decision. More importantly, the additional fa cts were all known by AHS at that time.
Assuming arguendo that the board, due to a lack of a thorough investigation, was unaware
of the facts on which AHS now relies, AHS had the right to challenge the board’s decision
as based on an inadequate investigation and therefore arbitrary and capricious in 2015. It
did not do so, and it has forfeite d its right to challenge the investigation and the board’s
2015 determination via a challenge to Rowell’s 2017 renewal.
Affirmed.