In the Matter of the Appeal by Kehinde Yusuf and Caring for Adults of the Order of License Revocation of the Adult ...

This opinion is nonprecedential except as provided by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
A24-0430

In the Matter of the Appeal by Kehinde Yusuf and
Caring for Adults of the Order of License Revocation of the
Adult Foster Care and Home and Community-Based Services Licenses.

Filed November 18, 2024
Affirmed
Larson, Judge

Minnesota Department of Human Services
File No. 23-1800-38774

Jason Steck, Law Office of Jason Steck, St. Paul, Minnesota (for relators Kehinde Yusuf
and Caring for Adults)

Keith Ellison, Attorney General, Drew Bredeson, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Human Services)

Brian J. Melton, Clay County Attorney, Kathleen M. Stock, Assistant County Attorney,
Moorhead, Minnesota (for respondent Clay County)

Considered and decided by Larson, Presiding Judge; Worke, Judge; and Bjorkman,

Judge.

NONPRECEDENTIAL OPINION

LARSON, Judge

In this certiorari appeal, relators Kehinde Yusuf and Caring for Adults challenge

respondent Minnesota Department of Human Services’ (DHS) order revoking their family-

adult-foster-care license. Relators argue DHS made legal errors when it determined the

family-adult-foster-care home was not Yusuf’s “primary residence” and issued an arbitrary
and capricious decision. Because the record does not show that DHS legally erred or acted

arbitrarily or capriciously when it revoked relators’ license, we affirm.

FACTS

In 2016, relators received licenses to operate a family-adult-foster-care home and

provide home and community-based services (HCBS) at a residence Yusuf rented in

Moorhead, Minnesota (the foster-care home). To qualify for a family-adult-foster-care

license, the foster-care home was required to be Yusuf’s “primary residence.” 1 See Minn.

Stat. § 245A.03, subd. 7(a) (Supp. 2023). 2 DHS issued a guidance document that lists

some of the factors DHS may consider when deciding whether a family-adult-foster-care

home is the licensee’s “primary residence” (the guidance document). The guidance

document provides:

The home in which the adult foster care services are
provided must be the primary residence of the applicant for a
family adult foster care license. Factors to consider in
determining primary residence of an applicant may include any
of the following:

• What is the address on their driver’s license/state ID?
• Where do they live and sleep the majority of the time?
• Where do they spend time with other immediate family
members?
• Where do they have their clothing and personal objects?
Having a bedroom, some clothing and some personal

1
The “primary residence” requirement only applies to “family” adult-foster-care licenses,
the type of license DHS issued to relators. See Minn. Stat. § 245A.03, subd. 7(a). The
statute does not have a similar requirement for “corporate” adult-foster-care licenses. See
id.
2
The 2024 amendments made to Minn. Stat. § 245A.03, subd. 7, do not impact the outcome
of this case. See 2024 Minn. Laws ch. 80, art. 2, § 37, at 193-95; 2024 Minn. Laws ch. 85,
§ 53, at 381-83; 2024 Minn. Laws ch. 115, art. 18, § 11, at 1382-84; 2024 Minn. Laws
ch. 125, art. 1, § 4, at 1957-59; 2024 Minn. Laws ch. 127, art. 46, § 4, at 2636-37.

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 effects in a home, does not necessarily indicate that it is
their primary residence.
• What is their primary residence as indicated on their tax
return?
• Where do they receive their mail?
• Where are they registered to vote?
• What is their homestead status with the county
assessor’s office?
• Who owns the home as indicated on property tax
records?
• If the applicant owns more than one home, where do
they spend more of their time? Ownership of a home in
and of itself, does not indicate primary residence.
• If the home is a duplex, where do they sleep and spend
more of their time?
• If the applicant is married, what is the status of the
current relationship? For example, is it reasonable that
a married couple would live in two separate dwellings?

In November 2021, an HCBS licensor conducted a license review and made

observations suggesting the foster-care home was not Yusuf’s primary residence,

including: (1) the foster-care home had a sterile environment with nothing on the walls

other than instructional and facility signs; (2) the bathroom had basic cleaning supplies and

no personal toiletries; (3) the closet in Yusuf’s bedroom had roughly five articles of

clothing and a small suitcase; and (4) Yusuf’s bed and desk were covered with boxes, office

items, and cleaning supplies that appeared to have been unmoved for a while. The HCBS

licensor relayed these concerns to Clay County (the county). The county subsequently sent

a letter to all family-adult-foster-care licensees in January 2022, which included a reminder

about the primary-residence requirement.

In March 2022, DHS requested that the county follow-up on relators’ license

review. Through its investigation, the county discovered Yusuf’s vehicle registration listed

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an apartment other than the foster-care home. When a county licensor visited the address

listed on Yusuf’s vehicle registration, she observed that Yusuf’s name appeared on the door

buzzer and in the apartment directory as a current resident.

The county licensor then made two unannounced visits to the foster-care home in

March 2022, the first at 7:45 a.m. one day and the second the following night at 10:16 p.m.

Yusuf was not present at either visit. The resident was present during the first visit and

allowed the county licensor into the foster-care home. The resident informed the county

licensor that Yusuf did not stay in the foster-care home most overnights. While inside, the

county licensor made similar observations to the HCBS licensor, including multiple

instructional signs on the walls, the absence of personalized decorations, a lack of personal

hygiene products in the bathroom, a few articles of clothing in Yusuf’s closet, and it did

not appear Yusuf had recently slept in his bed.

Following an announced third visit to the foster-care home the next morning, the

county licensor recommended DHS revoke relators’ family-adult-foster-care license on the

basis that the foster-care home was not Yusuf’s primary residence. In September 2022,

DHS issued an order revoking relators’ family-adult-foster-care license. 3 The revocation

order stated, in relevant part, that relators had failed to comply with the licensing

requirement that the foster-care home be Yusuf’s primary residence.

Relators appealed the revocation order, and an administrative-law judge (ALJ) held

a contested-case hearing in May 2023. At the contested-case hearing, DHS called multiple

3
DHS also revoked relators’ HCBS license for failure to comply with separate licensing
requirements. Relators do not challenge DHS’s decision to revoke their HCBS license.

4
witnesses who testified to the facts described above. DHS also elicited testimony

explaining why the primary-residence requirement is in the best interest of residents.

Specifically, a DHS employee testified that risks to physical health are presented when a

resident lives alone, and it can harm a resident’s physiological health when they are “not

receiving potential supervision or care that they need or the companionship that one would

expect in a family adult foster home.” Relators offered several documents into the record

to support their claim that the foster-care home was Yusuf’s primary residence, including

bills addressed to Yusuf at the foster-care home, Yusuf’s current driver’s license issued in

April 2022, photos of Yusuf’s closet at the foster-care home, and letters supporting Yusuf’s

position that the foster-care home was his primary residence. Relators also called multiple

witnesses, including a former case manager, a former county licensor, a neighbor/landlord,

and Yusuf.

Following the contested-case hearing, the ALJ issued a report and recommendation,

recommending that DHS find the foster-care home was not Yusuf’s primary residence and

that DHS revoke relators’ family-adult-foster-care license. In doing so, the ALJ

acknowledged the guidance document, but analyzed the specific facts and evidence

presented at the contested-case hearing. The parties submitted exceptions to the ALJ’s

report, and, in February 2024, DHS adopted the ALJ’s report and recommendation in its

entirety.

Relators appeal.

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 DECISION

Relators challenge DHS’s decision to revoke their family-adult-foster-care license

on two grounds: (1) DHS made legal errors when it issued its decision and (2) DHS issued

an arbitrary and capricious decision. We apply the Minnesota Administrative Procedure

Act, Minn. Stat. §§ 14.001-.69 (2022), to review an administrative decision after a

contested-case hearing. See Eneh v. Minn. Dep’t of Health, 906 N.W.2d 611, 613-14

(Minn. App. 2018). In a certiorari appeal, we may reverse or modify an agency’s decision:

if the substantial rights of the petitioners may have been
prejudiced because the administrative finding, inferences,
conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of
the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the
entire record as submitted; or
(f) arbitrary or capricious.

Minn. Stat. § 14.69. An agency’s decision enjoys “a presumption of correctness.” In re

Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance, 731 N.W.2d 502, 513

(Minn. 2007) (quotation omitted). “[T]he party challenging the [agency’s] decision” bears

the burden “to show that the decision should be reversed.” See Fish v. Comm’r of Minn.

Dep’t of Hum. Servs., 748 N.W.2d 360, 363 (Minn. App. 2008).

We review relators’ arguments in turn.

I.

We first address relators’ legal arguments. Relators assert that DHS made two legal

errors when it issued its decision. First, relators claim DHS did not have statutory authority

6
to decide whether the foster-care home was Yusuf’s “primary residence” because DHS has

never engaged in rulemaking to define the phrase. Second, relators argue that DHS legally

erred when it relied on the guidance document to evaluate whether the foster-care home

was Yusuf’s primary residence. We review legal questions de novo. Kind Heart Daycare,

Inc. v. Comm’r of Hum. Servs., 905 N.W.2d 1, 9 (Minn. 2017).

We observe that relators failed to raise these legal issues during the administrative

process and, therefore, the issues are forfeited. See Thiele v. Stich, 425 N.W.2d 580, 582

(Minn. 1988). But even if relators had properly raised these issues, their arguments would

fail for two reasons.

First, DHS has authority to—and in fact must—decide whether a family-adult-

foster-care home is the licensee’s primary residence. Under Minn. Stat. § 245A.03,

subd. 7(a):

The commissioner shall not issue an initial license for
. . . adult foster care . . . for a physical location that will not be
the primary residence of the license holder for the entire period
of licensure. If a . . . family adult foster care home license is
issued during this moratorium, and the license holder changes
the license holder’s primary residence away from the physical
location of the foster care license, the commissioner shall
revoke the license . . . . 4

(Emphasis added); see also Minn. Stat. § 645.44, subd. 16 (2022) (specifying “‘[s]hall’ is

mandatory”). When a controlling statute’s plain meaning expressly requires an action,

preventing an agency from carrying out that action “would amount to revision of the

4
Under section 245A.03, “[c]ommissioner means the commissioner of human services or
the commissioner’s designated representative including county agencies and private
agencies.” Minn. Stat. § 245A.02, subd. 5.

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statute.” Minn. Transitions Charter Sch. v. Comm’r of Minn. Dep’t of Educ., 844 N.W.2d

223, 235 (Minn. App. 2014), rev. denied (Minn. May 28, 2014). And in the absence of

rulemaking, an agency enforces a statute using case-by-case decisionmaking. See L & D

Trucking v. Minn. Dep’t of Transp., 600 N.W.2d 734, 737 (Minn. App. 1999) (noting that,

even in the absence of a valid rule, it would be an absurd result to preclude an agency from

enforcing a statute on a case-by-case basis), rev. denied (Minn. Dec. 21, 1999).

Here, even though DHS has not engaged in rulemaking to define the phrase

“primary residence,” it still has the duty to enforce a statute on a case-by-case basis. In re

Hibbing Taconite Co., 431 N.W.2d 885, 894 (Minn. App. 1988) (noting an “agency has

discretion to decide” whether to “formulate policy by promulgating rules or by case by

case determinations”). Therefore, because Minn. Stat. § 245A.03, subd. 7(a), mandates

that DHS revoke a license if the licensee fails to comply with the primary-residence

requirement, relators’ argument that DHS lacks the authority to enforce the statute in the

absence of rulemaking fails.

Second, the parties appear to agree that the phrase “primary residence” means a

licensee’s “principal dwelling” or the place the licensee “chiefly resides.” But relators

contend that DHS misapplied the plain language when it referenced the factors in the

guidance document. Upon reviewing the report and recommendation, which DHS adopted,

we conclude that DHS did not tie its analysis to the guidance document. Instead, DHS

undertook a case-by-case, fact-specific analysis to fulfill its statutory responsibility to

8
evaluate whether the foster-care home was Yusuf’s primary residence. 5 See Hibbing

Taconite Co., 431 N.W.2d at 894. Therefore, we are not persuaded by relators’ second

argument.

For these reasons, we conclude DHS did not legally err when it revoked relators’

license.

II.

Relators argue DHS issued an arbitrary and capricious decision when it revoked

relators’ license because DHS: (1) applied the guidance document inconsistently; (2) failed

to consider the well-being of the foster-care home’s resident; and (3) issued a biased

decision. “An agency decision is arbitrary and capricious if it is an exercise of the agency’s

will, rather than its judgment, or if the decision is based on whim or is devoid of articulated

reasons.” CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 565 (Minn. App.

2001), rev. denied (Minn. Nov. 13, 2001). An agency engages in arbitrary and capricious

decisionmaking if it (1) relies “on factors not intended by the legislature”; (2) entirely fails

“to consider an important aspect of the problem”; (3) offers “an explanation that runs

counter to the evidence”; or (4) “the decision is so implausible that it could not be explained

5
Because DHS undertook a case-by-case analysis here, we need not decide whether the
guidance document is an unpromulgated rule. See Minn. Stat. § 14.381, subd. 1; In re
Shakopee Mdewakanton Sioux Cmty., 988 N.W.2d 135, 144 (Minn. App. 2023). We
acknowledge that we currently have a matter pending before our court (A24-1562)
challenging an ALJ’s decision that DHS has not enforced an unpromulgated rule through
the guidance document. See In re Minn. Assoc. of Residential Servs., OAH 22-1800-39881,
2024 WL 3696565 (Minn. Off. Admin. Hrgs. Aug. 1, 2024). Nothing in this decision shall
be construed as expressing an opinion on the merits of the issues raised in that appeal.

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as a difference in view or the result of the agency’s expertise.” Citizens Advocating

Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006).

Beginning with relators’ argument that DHS has applied the guidance document

inconsistently, relators do not point to any evidence in the record to support their claim.

Instead, they rely on an ALJ decision in a different matter that found DHS was “not

consistent with how it has addressed licensees with similar violations.” See In re Abdulle,

OAH 82-1800-39249, 2024 WL 2837071, at *13 (Minn. Off. Admin. Hrgs. May 28, 2024)

(emphasis added). 6 But in Abdulle, the licensee argued that DHS was inconsistent because,

in cases cited to the ALJ, DHS had “applied progressive sanctions rather than immediately

moving to revocation.” Id. In contrast here, Yusuf does not point to any cases to support

his contention that DHS made a “sudden decision to develop and aggressively enforce its

own definition of ‘primary residence.’” See Schoepke v. Alexander Smith & Sons Carpet

Co., 187 N.W.2d 133, 135 (Minn. 1971) (“An assignment of error based on mere assertion

and not supported by any argument or authorit[y] is waived . . . unless prejudicial error is

obvious on mere inspection.”). Therefore, because Yusuf’s argument is supported by

neither evidence nor caselaw, relators failed to adequately support their claim. See Fish,

748 N.W.2d at 363 (explaining that party challenging decision has burden of proving it

was arbitrary and capricious).

Regarding relators’ contention that DHS engaged in arbitrary and capricious

decisionmaking because it failed to consider the wellbeing of the resident, the record belies

6
Abdulle is a nonprecedential, office-of-administrative-hearings decision and is not
binding authority on our court.

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relators’ argument. At the contested-case hearing, DHS elicited testimony about the

importance of the primary-residence requirement for the wellbeing of the resident. The

record shows that a licensee failing to live with a resident presents a risk to the resident’s

safety and potential harm to the resident’s physiological health when they are “not

receiving . . . care that they need or the companionship that one would expect in a family

adult foster home.” And even if DHS had failed to assess the resident’s wellbeing, we

previously concluded in a nonprecedential decision that evaluating a licensee’s primary

residence does not require DHS to consider the resident’s wellbeing. See In re Casterton,

No. A21-1393, 2022 WL 2912152, at *3 (Minn. App. July 25, 2022). 7

Finally, relators argue that DHS acted arbitrarily and capriciously because it was

biased against Yusuf. But there is no evidence in the record to support relators’ argument. 8

In the absence of such evidence, relators’ argument fails. See In re Dakota Cnty. Mixed

Mun. Solid Waste Incinerator, 483 N.W.2d 105, 106 (Minn. App. 1992).

Affirmed.

7
This opinion is nonprecedential and, therefore, not binding. We cite Casterton as
persuasive authority only. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
8
We acknowledge that relators’ counsel attempted to elicit testimony regarding bias at the
contested-case hearing and that the ALJ did not allow this testimony. But relators did not
challenge this evidentiary ruling before the ALJ in its exceptions to the ALJ report and
recommendation, or make a specific challenge to this evidentiary ruling on appeal.
Therefore, this issue is forfeited. See Rochester City Lines Co. v. City of Rochester, 913
N.W.2d 443, 448 (Minn. 2018) (“[T]he quasi-judicial decision-maker must be given an
opportunity to consider and address the issue, or it will be forfeited.” (quotation omitted)).

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