ITW Food Equipment Group LLC, a/k/a Hobart, Relator,

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1810

ITW Food Equipment Group LLC, a/k/a Hobart,
Relator,

vs.

Minnesota Plumbing Board,
Respondent.

Filed July 1, 2019
Affirmed
Cleary, Chief Judge

Minnesota State Plumbing Board
File No. PB0098

Scott M. Rusert, David J. Warden, Nilan Johnson Lewis PA, Minneapolis, Minnesota (for
relator)

Keith Ellison, Attorney General, Christopher M. Kaisershot, Ass istant Attorney General,
St. Paul, Minnesota (for respondent)

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Bjorkman, Judge.
S Y L L A B U S
A final interpretation of the Minnesota Plumbing Code issued b y the Minnesota
Plumbing Board pursuant to Minn. Stat. § 326B.127, subd. 5 (2018), is subject to certiorari
review by the court of appeals in the manner provided by Minn. Stat. § 14.69 (2018).

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O P I N I O N
CLEARY, Chief Judge
This is an appeal from a final interpretation of the Minnesota Plumbing Code issued
by respondent Minnesota Plumbing Board (the board) under Minn. Stat. § 326B.127,
subd. 5 (2018). The board interpreted Minn. R. 4714.0603.2 (20 17) and Table 603.2 1 to
prohibit any valve from being installed downstream of an atmosp heric vacuum breaker
(AVB). Relator ITW Food Equipmen t Group LLC, a/k/a Hobart (ITW FEG), initiated a
certiorari appeal challenging the board’s final interpretation, arguing that the board’s
decision is flawed due to an error of law, arbitrary and capric ious, unsupported by
substantial evidence, and based on unlawful procedure. We affirm.
FACTS
ITW FEG manufactures commercial food equipment, including dish washers, for
institutional use. In 2008, ITW F EG began selling its CLe seri es commercial conveyor
dishwasher, and in 2017, it released its updated CLeN series. In August 2018, Minnesota
Department of Labor and Industry (DOLI) inspectors denied appro val of at least four of
ITW FEG’s CLeN dishwashers that were installed in Minnesota public schools, stating that

1 Table 603.2 refers to Table 603.2 as found in the 2012 edition of the Uniform Plumbing
Code (UPC). This table does not appear directly in the Minneso ta Rules as published by
the Revisor of Statutes, but is incorporated by reference. Min n. R. 4714.0050 (2017)
(“Chapters 2 to 11, 14, and 17 of the 2012 edition of the Unifo rm Plumbing Code (UPC)
as promulgated by the International Association of Plumbing and Mechanical Officials . . .
are incorporated by reference and made part of the Minnesota Pl umbing Code except as
qualified by the applicable provi sions in [Minn. R. 1300.0010 t o .0250,] and as amended
in this chapter.”); see also Minn. R. 4714.0603.2 (“UPC table 603.2 is not amended.”).
Because there are other relevant sections of the UPC that are i ncorporated, but do not
appear directly in the Minnesota Rules, we cite to the UPC throughout this opinion.

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the dishwashers failed to comply with Minn. R. 4714.0603.2 and the Minnesota Plumbing
Code’s backflow-prevention provisions because the CLeN model co ntained a valve
downstream from an AVB.
On September 5, 2018, ITW FEG submitted a request to the board f o r f i n a l
interpretation, citing for review Minn. R. 4714.0603.2. In its request for interpretation,
ITW FEG asserted that the CLeN d ishwasher design complies with the Minnesota
Plumbing Code because: (1) the d esign does not include a valve downstream that would
affect the AVB; (2) the language in Table 603.2 that prohibits the installation of valves
downstream from an AVB “is made in reference to the table header and is not intended to
be [an enforceable criterion], but rather general guidance”; and (3) when properly installed,
there is no reasonable risk for back pressure or backsiphonage, “thereby complying with
the intent of the rule and negating [the DOLI inspector’s] suggestion of adding additional
back flow prevention, upstream and external from the listed appliance.” ITW FEG further
stated that, under Minn. R. 4714 .0603.2, “[v]alves that control the AVB are not allowed
downstream from the AVB. Other valves - are just fine.”
On October 8, 2018, the board c onvened a special meeting and c onsidered ITW
FEG’s request for interpretation. During the meeting, an ITW FEG engineer presented the
design of the CLeN dishwasher to the board, and during his pres entation, he showed the
board a valve downstream from the AVB, stating that it was not a control valve, but a
supplementary fill valve. The engineer also argued that because the AVB is always open
to atmosphere, the design meets the intent of the plumbing code. A representative for ITW
FEG was also present during the meeting, and while participatin g in the discussion with

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board members, he stated, “So, in any event, we’re hoping that the Board can understand
what the risk factor is here and read the code and understand w hat the intent was, as
opposed to just the letter. It’s the intent that matters in th e code.” The board disagreed
and, in a nine-to-one vote, determined that, pursuant to Table 603.2, “no valves are allowed
downstream of an atmospheric v acuum breaker (AVB), in accordanc e with ASSE 1001-
2008.” This certiorari appeal follows.
ISSUES
I. What is the proper standard of review on appeal from a final interpretation issued
by the Minnesota Plumbing Boar d under Minn. Stat. § 326B.127, subd. 5?

II. Was the board’s final interpretation of Minn. R. 4714.0603. 2 and Table 603.2 to
prohibit valves from being inst alled downstream of an AVB affected by an error of
law?

III. Was the board’s final interp retation arbitrary and capricious?

IV. Was the board’s final interp retation unsupported by substantial evidence?

V. Was the board’s final interpr etation based on unlawful proce dure, violating ITW
FEG’s procedural-due-process rights?

ANALYSIS
I.
The Minnesota Plumbing Board is the state entity with the “fin al interpretative
authority applicable to the State Plumbing Code and [it] shall review requests for final
interpretation made to the board t h a t r e l a t e t o t h e S t a t e P l u m bing Code.” Minn. Stat.
§ 326B.127, subd. 5; see also Minn. Stat. § 326B.435, subd. 2(a)(4) (2018) (providing that
the board has the power to “review requests for final interpret ations and issue final
interpretations” as provided in Minn. Stat. § 326B.127, subd. 5).

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Because the appellate courts have not previously been asked to r e v i e w a f i n a l
interpretation issued pursuant to M i n n . S t a t . § 3 2 6 B . 1 2 7 , s u b d . 5, the question of the
standard of review to be applied is one of first impression. Minn. Stat. § 326B.127, subd. 5,
merely states that “[a]ny person aggrieved by a final interpret ation may appeal the
interpretation within 30 days of its issuance by . . . the [plu mbing] board in accordance
w i t h c h a p t e r 1 4 . ” W h i l e t h e s t a t u t e d o e s n o t s p e c i f y t h a t a n appeal from a final
interpretation by the plumbing board may be reviewed by the court of appeals, any person
aggrieved by a state agency’s final decision is entitled to judicial review by this court under
Minn. Stat. § 14.63 (2018). And appellate review of a final in terpretation is governed by
the Minnesota Administrative Procedure Act, Minn. Stat. §§ 14.0 01-.69 (2018). Minn.
Stat. § 326B.127, subd. 5. Accordingly, a reviewing court may reverse an administrative
agency’s decision only if the decision violates a constitutiona l provision, is outside the
statutory authority or jurisdiction of the agency, is based on unlawful procedures, reflects
an error of law, is unsupported by substantial evidence, or is arbitrary and capricious.
Minn. Stat. § 14.69 (2018). Agency decisions are presumed to be correct; the party seeking
review of an agency decision has the burden of establishing tha t the decision violates
provisions of Minn. Stat. § 14.69. In re Molnar, 720 N.W.2d 604, 610 (Minn. App. 2006).
II.
ITW FEG first argues that the board’s final interpretation of Minn. R. 4717.0603.2
and Table 603.2 is affected by an error of law. “The interpret ation of an administrative
regulation presents a question of law that we review de novo.” J.D. Donovan, Inc. v. Minn.
Dep’t of Transp., 878 N.W.2d 1, 5 (Minn. 2016); see also Citizens Advocating Responsible

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Dev. v. Kandiyohi Cty. Bd. of Comm’rs , 713 N.W.2d 817, 828 n.9 (Minn. 2006) ( CARD)
(noting that administrative regulations are governed by the same rules of construction that
apply to statutes).
“Our first task is to determine whether the language of the ru le is ambiguous.” J.D.
Donovan, Inc. , 8 7 8 N . W . 2 d a t 5 . A r u l e i s a m b i g u o u s “ i f i t i s u n c l e a r o r r easonably
susceptible to more than one reasonable interpretation.” In re Cities of Annandale & Maple
Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 731 N.W.2d
502, 517 (Minn. 2007). Our determination of whether words or p hrases are ambiguous
does not depend on a reading of words or phrases in isolation, “but relies on the meaning
assigned to the words or phrases in accordance with the apparent purpose of the regulation
as a whole.” Id.; see also Troyer v. Vertlu Mgmt. Co./Kok & Lundberg Funeral Homes ,
806 N.W.2d 17, 24 (Minn. 2011) (explaining that we “construe rules as a whole and words
and sentences are understood . . . in the light of their context” (quotation omitted)). If the
rule is not ambiguous, “we construe the rule according to the common and approved usage
of its words and phrases and do not disregard the rule’s plain meaning to pursue its spirit.”
Troyer, 806 N.W.2d at 24.
The Minnesota Plumbing Code “prescribe[s] minimum standards wh ich shall be
uniform and which shall be effective for all new plumbing insta llations performed
anywhere in the state, including additions, extensions, alterat ions, and replacements.”
Minn. Stat. § 326B.43, subd. 1 (2018). The plumbing code requires that the water supply
connection to a commercial dishwashing machine be protected by an air gap or a backflow-
prevention device. Unif. Plumbing Code § 414.2 (Int’l Ass’n of Plumbing & Mech.

7
Officials 2012). An AVB is one such backflow-prevention device , which prevents the
“flow of water or other liquids into the distributing pipes of a potable supply of water from
sources other than its intended source.” Unif. Plumbing Code § 603.3.2 (listing AVB as
backflow-prevention device), 204.0 (defining backflow). Minn. R. 4714.0603.2, in turn,
states that “[b]ackflow prevention devices and assemblies shall comply with Table 603.2.”
And Table 603.2 explicitly directs that in the installation of an AVB, there are to be “[n]o
valve[s] downstream.”
ITW FEG maintains that ASSE 1001, 2 referenced as an “applicable standard” in
Table 603.2, governs Table 603.2 and unambiguously prohibits on ly control valves
downstream from an AVB.3 But while the ASSE 1001 prohibition of valves downstream
of an AVB refers only to control valves, its foreword also cautions that “[c]ompliance with
this standard does not imply acce ptance by any code body” and r ecommends installation
consistent with local codes. Moreover, ASSE 1001 is one of many “referenced standards”
included in the Minnesota Plumbi ng Code, which are “intended fo r use in the design,

2 ASSE refers to standards developed by the American Society of Sanitary Engineering.
3 The board asserts that ITW FEG forfeited its arguments that (a) ASSE 1001 permits non-
control valves downstream of an AVB, and (b) ASSE 1001 is the g overning standard by
f a i l i n g t o r a i s e t h e m b e l o w . T h e g e n e r a l r u l e t h a t m a t t e r s n o t raised below are not
addressed on appeal extends to appeals from administrative deci sions. In re Z.K. , 695
N.W.2d 656, 662 (Minn. App. 2005 ). In its written submissions and arguments to the
board, ITW FEG maintained that the control valve in its design is permitted to be upstream
from the AVB pursuant to ASSE 1001; under Minn. R. 4714.0603.2 and Table 603.2, only
control valves are prohibited from being installed downstream of an AVB; and the design
complies with ASSE 1001 because the valve downstream of the AVB is not a control valve.
While ITW FEG did not explicitly argue that ASSE 1001 supersedes Table 603.2 as it now
does on appeal, its arguments to the board reasonably suggest t hat its position was that
ASSE 1001 should control over the language in Table 603.2. Bec a u s e I T W F E G
adequately raised these arguments before the board, they are not forfeited.

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testing, and installation of materials, devices, appliances, and equipment regulated by this
code.” Unif. Plumbing Code § 1401.1; see Minn. R. 4714.1401 (2017) (amending Table
1401.1 of the UPC). ASSE 1001 also provides guidance for other performance
requirements in installing AVB devices. And although this spec ific ASSE 1001
performance requirement provides that AVBs are to be installed downstream of the last
c o n t r o l v a l v e , t h e p l a i n l a n g u a g e o f T a b l e 6 0 3 . 2 i m p o s e s a n a d ditional installation
requirement that no valves are to be installed downstream. The language contained in
Table 603.2 unambiguously prohibits valves from being installed downstream of an AVB.
The board did not legally err in its final interpretation of Minn. R. 4714.0603.2.
III.
ITW FEG further challenges the board’s final interpretation as arbitrary and
capricious. “[A]n agency ruling is arbitrary and capricious if the agency (a) relied on
factors not intended by the legislature; (b) entirely failed to consider an important aspect
of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the
decision is so implausible that it could not be explained as a difference in view or the result
of the agency’s expertise.” CARD, 713 N.W.2d at 832. An agency’s decision is arbitrary
and capricious when it represents the agency’s will, rather tha n its judgment. In re Max
Schwartzman & Sons, Inc., 670 N.W.2d 746, 753 (Minn. App. 2003).
At oral argument, ITW FEG relied on CARD to support its assertion that the board’s
final interpretation was arbitr ary and capricious. 713 N.W.2d 817. In CARD, an
environmental-advocacy group br ought a declaratory-judgment act ion challenging a
county’s determination that an environmental-impact statement was not necessary for two

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proposed gravel pit projects. Id. at 821. The supreme court concluded that the county’s
determination was arbitrary and capricious because the county d id not appropriately
consider the cumulative potential effects of related or anticip ated future projects, as
required under Minn. R. 4410.1700 (2005). Id. at 836-38. In contrast, Minn. Stat.
§ 326B.127, subd. 5, does not require that the board consider a nything other than the
plumbing code in rendering its final interpretation. Accordingly, ITW FEG’s comparison
to CARD is not instructive.
ITW FEG further asserts that the board’s decision was arbitrar y and capricious
because it failed to consider the express language of ASSE 1001. ITW FEG also contends
that the board chair and legal counsel failed to seriously cons ider its request for
interpretation and imposed their will on the board. In additio n, ITW FEG claims that the
board’s final interpretation is flawed because it refused to ex plain why the board rejected
the same design that it had approved for the past ten years.
But ITW FEG’s argument ignores the explicit directive in Table 603.2 that no valves
are to be installed downstream of an AVB. The board considered ITW FEG’s written
submissions and oral presentation, urging that its design complies with ASSE 1001 and the
intent of the plumbing code. But the board determined that the language in Table 603.2
prohibits any valves from being in stalled downstream of an AVB, despite the code’s
reference to ASSE 1001. Moreove r, the transcript from the spec ial meeting reflects that
the board chair and legal counse l considered the language of Ta ble 603.2 to be clear.
Rather than imposing their will upon the board, they redirected the discussion back to the
issue before the board—the interpretation of Minn. R. 4714.0603.2 and Table 603.2. And

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the fact that ITW FEG’s previous products may have received app roval is unpersuasive
given that the board does not ha ve the authority to approve pro ducts.4 Although we
conclude on this record that the board’s final interpretation w as not arbitrary and
capricious, we suggest that the board conduct its future procee dings in a more structured
manner and provide a more detailed analysis to support its fina l interpretations. But we
defer to the board as the “final interpretive authority” of the plumbing code. Minn. Stat.
§ 326B.127, subd. 5. Because the board’s final interpretation of Minn. R. 4714.0603.2 is
supported by the plain language of Table 603.2, it is not arbitrary and capricious.
IV.
ITW FEG further contends that th e board’s final interpretation is contrary to
substantial evidence. Specifically, ITW FEG argues that the board failed to consider ASSE
1001, ITW FEG’s explanation that the plumbing code allows for non-control valves to be
installed downstream of an AVB, its demonstration that its CLeN series dishwasher
complies with the plumbing code, and opinion letters from other organizations stating that
ITW FEG’s design complies with ASSE 1001.
“While we review legal questions de novo, we review factual determinations made
within the scope of the agency’s statutory authority under the substantial evidence
standard.” In re Application of Minn. Power for Auth. to Increase Rates for Elec. Serv. in
Minn., 838 N.W.2d 747, 757 (Minn. 2013 ). “Substantial evidence is d efined as (1) such

4 While the board has the authority to “review requests for fina l interpretations and issue
final interpretations,” Minn. S tat. § 326B.435, subd. 2(a)(4), the DOLI “shall administer
and enforce the provisions . . . and any rules promulgated” by the plumbing board, Minn.
Stat. § 326B.435, subd. 2(a).

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
(2) more than a scintilla of evid ence; (3) more than some evide nce; (4) more than any
evidence; or (5) the evidence considered in its entirety.” Cannon v. Minneapolis Police
Dep’t, 783 N.W.2d 182, 189 (Minn. App. 2010) (quotation omitted).
But in this case, the board did not engage in factfinding. De spite ITW FEG’s
argument that its CLeN design complies with the plumbing code, the narrow issue before
the board presented a question of law as to whether Minn. R. 4714.0603.2 and Table 603.2
permit valves of any kind to be installed downstream of an AVB. See Minn. Stat.
§ 326B.127, subd. 5 (stating that the plumbing board “shall rev iew requests for final
interpretation made to the board that relate to the State Plumb ing Code”). Because the
issue before the board was a question of law, ITW FEG’s argumen t that the board’s final
interpretation is contrary to s ubstantial evidence is unconvinc ing and better addressed
under other bases for reversal a s provided in Minn. Stat. § 14. 69. The board’s final
interpretation is not contrary to substantial evidence.
V.
Lastly, ITW FEG contends that the board based its decision on unlawful procedure.
The United States and Minnesota Constitutions guarantee the due process of law. U.S.
Const. amend. XIV, § 1; Minn. Const. art. 1, § 7. Whether the government has violated a
person’s procedural-due-process rights is a question of law that this court reviews de novo.
Sawh v. City of Lino Lakes , 823 N.W.2d 627, 632 (Minn. 2012). This court conducts “a
two-step analysis to determine whether the government has viola ted an individual’s
procedural due process rights.” Id. The first step is to “identify whether the government

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has deprived the individual of a protected life, liberty, or property interest.” Id. If no such
interest is deprived, then no process is due. Id. If a protected interest has been deprived,
then the second step is to determine “whether the procedures followed by the government
were constitutionally sufficient.” Id. (quotation omitted). To determine the constitutional
adequacy of specific procedures, the Supreme Court of the Unite d States established a
three-factor balancing test in Mathews v. Eldridge, which requires us to consider:
[f]irst, the private interest that will be affected by the offi cial
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.

424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976). In other words, if a protected life, liberty, or
property interest is at stake, “we must weigh the Mathews factors to determine what type
of process is constitutionally due to a person deprived of such an interest.” Sawh, 823
N.W.2d at 632. The procedures afforded by the government must provide an individual
with notice and an “opportunity t o be heard at a meaningful tim e and in a meaningful
manner.” Mathews, 424 U.S. at 333, 96 S. Ct. at 902 (quotation omitted).
The first step in the analysis is to determine whether the boa rd deprived ITW FEG
of any protected life, liberty, or property interest. When the board interpreted Minn. R.
4714.0603.2 to prohibit valves f rom being installed downstream of an AVB, it did not
deprive ITW FEG of anything, much less a protected property int erest. While ITW FEG
argues that the “matter has been riddled with procedural misste ps,” it fails to identify any
protected interest, other than in its reply brief where ITW FEG argues that the board’s

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alleged procedural errors have prejudiced its “right to sell an d warranty dishwashers as it
has in Minnesota for more than a decade.”
ITW FEG’s argument skirts the first step of the procedural-due -process analysis,
which requires the government to provide constitutionally sufficient process only when the
government has the ability to depr ive an individual of a protec ted interest. Instead, the
crux of ITW FEG’s argument centers on the consequences of the f inal interpretation, in
that the CLeN design may continue to be flagged by DOLI inspectors, thereby risking the
dishwasher’s certification and wa rrantied use, unless ITW FEG a lters its design. But
“procedural due process protections do not apply when government action may lead to the
deprivation of a protected interest at some indeterminate point in the future based on certain
unfulfilled conditions.” Sawh, 823 N.W.2d at 633 (emphasis omitted); see also Bd. of
Regents v. Roth , 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972) (“The requirem ents of
procedural due process apply only to the deprivation of interes ts encompassed by the
Fourteenth Amendment’s protection of liberty and property.”); State, Dep’t of Pub. Safety
v. Elk River Ready Mix Co. , 430 N.W.2d 261, 264 (Minn. App. 1988) (holding that due
process did not require the defendant to receive notice that ov erweight vehicle violations
could subject him to civil liability because there was no deprivation of property). Because
the board’s final interpretation did not, and could not, result in approval or disapproval of
ITW FEG’s CLeN design, ITW FEG did not have a property interest at risk of deprivation.
Even if the threshold protected-p roperty-interest requirement were met, we would
conclude that the board’s procedure did not violate ITW FEG’s d ue-process rights. The
board is not required to hold an evidentiary hearing when reviewing a party’s request for a

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final interpretation. See Minn. Stat. § 326B.127, subd. 5. Moreover, ITW FEG received
notice of the board’s special meeting to consider ITW FEG’s request for interpretation, and
the board further allowed ITW FEG to file written submissions t o the board, and
supplement those submissions, for consideration during the spec ial meeting. At the start
of the special meeting, the board allowed ITW FEG to give a bri ef presentation and also
permitted its representatives to interject throughout the board ’ s d i s c u s s i o n . T h e b o a r d
provided ITW FEG with the basic requisites of due process, “notice and the opportunity to
be heard,” even when its property interest was not at stake. See Sisson v. Triplett , 428
N.W.2d 565, 568 (Minn. 1988). T he board did not deprive ITW FE G of any protected
constitutional interest when it in terpreted the plumbing code i n response to ITW FEG’s
request for interpretation.
D E C I S I O N
A final interpretation of the p lumbing code issued by the plumbing board pursuant
to Minn. Stat. § 326B.127, subd. 5, is subject to certiorari review by this court in the manner
provided by Minn. Stat. § 14.69. Minn. R. 4714.0603.2 and Tabl e 603.2 unambiguously
prohibit any valve from being installed downstream of an AVB. Because the board’s final
interpretation of Minn. R. 4714.0603.2 was based upon the plain language of Table 603.2,
it was not legally erroneous, arbitrary and capricious, or unsu pported by substantial
evidence. The board did not deprive ITW FEG of any protected c onstitutional interest
when it issued a final interpretation of Minn. R. 4714.0603.2 i n response to ITW FEG’s
request.
Affirmed.