S. K., Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1260

S. K.,
Relator,

vs.

Minnesota Department of Health,
Respondent.

Filed June 14, 2021
Affirmed
Reyes, Judge

Minnesota Department of Health
Background Study No. 24245021

Eric H. Anderson, Anderson Defense, Minneapolis, Minnesota (for relator)

Keith Ellison, Attorney General, Kaitrin C. Vohs, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Relator challenges the commissioner’s denial of his request for reconsideration to
set aside his disqualification from working with patients of its licensed programs as
arbitrary and capricious. We affirm.

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FACTS
In April 2007, a district court convicted relator S.K. of felony first -degree driving
while intoxicated ( DWI). Based on that conviction, relator received a notice of
disqualification that he was statutorily disqualified from p erforming certain jobs in
facilities licensed by respondent Minnesota Department of Health (the commissioner). The
commissioner ultimately set aside that disqualification.
In May 2019, a police officer received several reports of an intoxicated person
leaving a Walmart. The officer followed the person, who was relator, in his vehicle and
stopped him when he failed to use a turn signal. Relator’s blood-alcohol content was over
three times the legal limit. In September 2019, relator pleaded guilty to felony first-degree
DWI. The district court sentenced relator to a 42-month stayed sentence and five years of
probation, and ordered him to complete a chemical -dependency evaluation, complete
random drug testing, no t use alcohol or drugs , complete an impact panel, use alco -sensor
monitoring, complete treatment, and attend sober-support meetings.
In June 2020, the Minnesota Department of Human services ( MDHS) notified
relator and his employer at the time, Highland Chateau, that he was di squalified from
working there after a background study revealed the 2007 and 20 19 felony first-degree
DWIs. At Highland Chateau, relator worked as a licensed practical nurse where he
administered medication, took doctor’s orders, and provided daily care t o the residents.
The residents are adults in long -term care who rely on doctors, nurses, and staff for their
daily needs.
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Relator requested the commissioner reconsider and set aside the disqualification ,
asserting that he does not pose a risk of harm to the residents he serves at Highland Chateau.
In addition to the standard form for requesting reconsideration, relator submitted a letter
from his coworker at Highland Chateau and a copy of the police report regarding the May
DWI. Relator’s probation officer also had sent the commissioner a letter stating that relator
had thus far complied with all probation conditions.
The commissioner denied relator’s request for reconsideration and included a risk -
of-harm assessment analyzing the statutory factors to set aside a disqualification. Relator
appeals by a writ of certiorari.
DECISION
Relator challenges the commissioner’s denial of his request fo r reconsideration to
set aside his disqualification , arguing that the decision was arbitrary and capricious ,
unreasonable, and not supported by substantial evidence. We are not persuaded.
The Department of Human Services Background Studies Act, Minn. Sta t.
§ 245C.01-.34 (2020), provides for disqualification of certain persons from working with
licensed programs. Under Minn. Stat. § 245C.15, subd. 2(a), a person is disqualified for
15 years if convicted of a felony crime involving alcohol. A disqualified person may
request reconsideration to set aside the disqualification. Minn. Stat. § 245C.21, .22. “The
commissioner may set aside the disqualification if the commissioner finds that the
individual has submitted sufficient information to demonstrate that the individual does not
pose a risk of harm to any person served by the applicant,” Minn. Stat. § 245C.22, subd.
4(a) (emphasis added), based on these factors:
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(1) the nature, severity, and consequences of the event or
events that led to the disqualification;
(2) whether there is more than one disqualifying event;
(3) the age and vulnerability of the victim at the time of the
event;
(4) the harm suffered by the victim;
(5) vulnerability of persons served by the program;
(6) the similarity between the victim and persons served by
the program;
(7) the time elapsed without a repeat of the same or similar
event;
(8) documentation of successful completion by the
individual studied of training or rehabilitation pertinent
to the event; and
(9) any other information relevant to reconsideration.
Id., subd. 4(b). The burden rests on the individual to show that he does not pose a risk of
harm. Id. In reviewing the request, the commissioner “shall give preeminent weight to the
safety of each person” served by the program. Id., subd. 3 (emphasis added). In addition,
“any single factor under subdivi sion 4, paragraph (b), may be determinative” of the
commissioner’s decision on a request to reconsider a set aside. Id. (emphasis added).
A decision on a request for reconsideration of a disqualification is a quasi -judicial
decision. Rodne v. Comm’r of H uman Servs., 547 N.W.2d 440, 444 (Minn. App. 1996).
An appellate court may reverse an administrative decision if it is not supported by
substantial evidence or if it is arbitrary and capricious. Sweet v. Comm’r of Human Servs.,
702 N.W.2d 314, 318 (Minn. App. 2005) (citation omitted), review denied (Minn. Nov. 15,
2005). A quasi -judicial decision is arbitrary and capricious if there is no rational
connection between the facts and the decision. Id.
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Although only one of the nine factors is necessary to sustain the commissioner ’s
denial of relator’s request, we nonetheless analyze each factor of the commissioner’s
analysis for the support and substantial evidence in turn.1
1. The nature, severity, and consequences of the event or events that led to the
disqualification

The commissioner noted that relator had been convicted of first-degree DWI in both
offenses. This is the most sever e DWI penalty. In addition, relator had a blood-alcohol
content over three times the legal limit in the second DWI. The commissioner reasonably
determined that this factor supported denying the set aside and that determination is
supported by substantial evidence in the record.
2. Whether there is more than one disqualifying event
The parties agree that there are two disqu alifying events of two disqualifying
convictions, which supports the commissioner’s decision on this factor.
3. The age and vulnerability of the victim at the time of the event
The commissioner described the victim of the disqualifying event as “the
community.” Although general, the commissioner ’s assessment recognizes the danger to
the public through relator’s actions. However, relator is correct that the commissioner did
not analyze the age and vulnerability of the victim. This factor is neutral.

1 Relator also appears to argue that the commissioner must explicitly state it only relied on
one factor, but he fails to cite any authority for that proposition. As such, he has forfeited
this argument. Scheffler v. City of Anoka, 890 N.W.2d 437, 451 (Minn. App. 2017), review
denied (Minn. Apr. 26, 2017).
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4. The harm suffered by the victim
The commissioner simply noted that “[t]here was no direct harm.” The parties agree
that this assessment is accurate. Additionally, DHS concedes this factor is neutral, and we
agree.
5. Vulnerability of persons served by the program
The commissioner noted that the residents relator serves are vulnerable and depend
on him for their daily needs. Relator argues that the commissioner did not explain how the
residents are vulnerable. But the commissioner did in fact d escribe the residents’
vulnerability: they “rely on caregivers to provide them assistance with their daily living
activities.” For the first time on appeal, relator argues that the residents are not dependent
on him for basic needs as they have “full cognitive functioning” and other nurses would be
able to assist. But relator also concedes in his brief and request for reconsideration that the
residents “rely on [him] to administer their medications and also help with their activities
of daily living to promote their wellbeing.” This fact is rationally connected to the denial
because the safety of the residents is compromised if their caretaker is under the influence
of alcohol or exercising poor judgment. This is the most compelling and relevant factor
for denying relator’s request because the commissioner “shall give preeminent weight to
the safety” of the people served. Minn. Stat. § 245C.22, subd. 3. The commissioner
reasonably determined that this factor strongly supported denying t he set aside, which is
supported by substantial evidence in the record.

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6. The similarity between the victim and persons served by the program
The commissioner reasoned that the community members put at risk while relator
was intoxicated and “[t]he people you would be caring for would be dependent on your
sound judgment. If you failed to act responsibly while caring for vulnerable persons,
serious harm could result.” In reaching this conclusion, the commissioner drew the
similarity that both the community at large and the persons served by the program would
be endangered by his poor judgment.
Relator counters that the performance reviews and l etter from his coworker at
Highland Chateau satisfy his burden on this factor that he has not exercised poor judgment
in the past. But this factor goes to the similarity of the people at risk , and the record
supports the commissioner’s rationale . This commissioner’s determination on this factor
is reasonable and supported by substantial evidence in the record.
7. The time elapsed without a repeat of the same or similar event
The commissioner noted that little time has elapsed from the most recent sim ilar
offense. Relator does not address this factor. The commissioner reasonably relied on this
substantial evidence in denying the set aside.
8. Documentation of successful completion by the individual studied of training or
rehabilitation pertinent to the event
The commissioner acknowledged that relator completed a treatment program in
January 2020, but incorrectly stated that relator did not submit a probation officer’s report
that he has complied with conditions or proof of co ntinued sobriety. R elator argues that
the evidence does not support the commissioner’s determination.
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As for the probation officer’s report, relator’s probation is ongoing for five years,
only six months of which were included in the report. Because relator has not completed
his probation, the commissioner did not need to accept the report as documentation of
“successful completion.” Even though relator submitted documents from the treatment
program in January 2020 (the month he was sentenced), he failed to provide documentation
of “continued sobriety.” Relator did not submit any documents showing sobriety for the
critical six-month period after his sentence. And the report from the treatment center states
that relator “has minimal recognition and understanding of relapse and recidivism issues
and displays moderate vulnerability for further substance use.” Substantial evidence
supports the commissioner’s overall assessment that relator did not meet his burden to
show successful completion of relevant programs.
9. Any other information relevant to reconsideration
The commissioner noted that the disqualifying events were rec ent in the context of
the 15-year disqualification period and that “it is too soon to know if [ relator has] made
long-term changes to [his] behavior to prevent this from occurring again.” Because the
commissioner denied relator’s request for reconsideration within nine months of relator’s
most recent disqualifying event, its consideration of the recency of the felony is rationally
connected to the risk of harm to the residents. Relator’s letter from the probation officer,
in the context of the five -year probationary sentence, provides limited assurances that he
has made those changes. These facts are rationally connected to the commissioner’s
decision to deny relator’s request for reconsideration to set aside the disqualification.
9
Relator relies on Johnson v. Commissioner of Health, 671 N.W.2d 921 (Minn. App.
2003), for the proposition that the commissioner may not rely on conclusory explanations
of the risk factors. Relator fails to recognize that Johnson applied a prior version of the
reconsideration statute. See id. (applying Minn. Stat. § 245A.04, subd. 3b(a) (2002), which
previously housed the reconsideration factors). After the commissioner’s decision at issue
in Johnson in January 2003 but before this court’s review in December 2003, the legislature
recodified the statute in chapter 245C. 2003 Minn. Laws ch. 15, art. 1, § 22, at 200
(codified at Minn. Stat. § 245C.22). It added language requiring the commissioner to grant
“preeminent weight” to the safety of residents, id., and l ater made explicit that the
commissioner may rely on a single factor as dispositive, 2004 Minn. Laws ch. 288, art. 1,
§ 61, at 1341. As such, Johnson is no longer applicable for that proposition to the extent
it implies th at conclusory language on nonrele vant factors renders the entire decision
arbitrary and capricious. Further, we have several relevant factors supported by substantive
analysis beyond conclusory language.
In sum, because the commissioner must give preeminent weight to the safety of the
residents, and because several relevant factors support the commissioner ’s finding, we
conclude that its denial of relator’s request to reconsider setting aside the disqualif ication
was neither arbitrary and capricious nor unreasonable and is supported by substantial
evidence.
Affirmed.