                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1755

                                  George Marita Obara,
                                        Relator,

                                           vs.

                           Commissioner of Human Services,
                                    Respondent.

                                   Filed July 27, 2015
                                        Affirmed
                                      Reyes, Judge

                       Minnesota Department of Human Services

Erik F. Hansen, Burns & Hansen, P.A., Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, Anne Fuchs, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

      Considered and decided by Larkin, Presiding Judge; Reilly, Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      On appeal, relator argues that his disqualification from working in facilities

licensed by the Minnesota Department of Human Services (DHS) was not supported by

substantial evidence in the record and violated his due-process rights. We affirm.
                                          FACTS

       In 2007, relator George Marita Obara was convicted of two felonies, third-degree

assault and terroristic threats. These convictions arose out of a domestic dispute that took

place in 2006, in which relator hit his wife several times and threatened her while they

were in a moving vehicle together. State v. Obara, No. A07-1689, 2008 WL 4777260, at

*1 (Minn. App. Nov. 4, 2008). Relator’s wife fell out of the passenger side of the vehicle

as it was traveling at a speed of 50 miles per hour. Id. She suffered several substantial

injuries as a result. Id.

       At the time of the incident, relator worked for a program licensed by the

Minnesota Department of Health (MDH), which required background studies conducted

by DHS. Obara v. Minn. Dep’t. of Health, 758 N.W.2d 873, 876 (Minn. App. 2008).

Based on his convictions, relator was disqualified from his employment as a registered

nurse. Id. at 877. Both of relator’s convictions are offenses which disqualify him from

working in MDH- or DHS-licensed programs for 15 years. See Minn. Stat. §§ 245C.14-

.15 (2014). Relator appealed, and we upheld his disqualification. Obara, 758 N.W.2d at

881.

       Despite this, relator successfully requested that his disqualification be set aside so

that he could work for two agencies licensed by MDH, Caring Nurses LLC in August

2010, and Compassionate Care Network LLC in November 2010. In December 2010,

relator was discharged from probation and his felony convictions were reduced to

misdemeanors, shortening the length of his disqualification period to seven years. See




                                              2
Minn. Stat. § 245C.15, subd. 4 (2014). Relator’s disqualification was subsequently set

aside for a position at Communities of Care, which is also a MDH-licensed agency.

       In May 2014, DHS notified relator that a new background study request was

submitted by four separate DHS-licensed agencies: Robland Home Care Corporation,

Family Quality Care, Inc., Vizion One, Inc., and Multicultural Adult Daycare Services,

LLC. Relator received a letter indicating that he was disqualified from positions with

these agencies based on his 2007 convictions. Relator requested reconsideration, arguing

that he did not pose a risk of harm. The Minnesota Commissioner of Human Services

(the commissioner) denied this request.

       In her analysis, the commissioner looked to the nine factors listed in Minn. Stat.

§ 245C.22, subd. 4(b) (2014), and concluded that relator posed a risk of harm. With

respect to the eighth factor entitled “documentation of successful completion by the

individual . . . of training or rehabilitation pertinent to the [disqualifying] event,” the

commissioner determined that relator’s subsequent conviction for careless driving

following his arrest for suspicion of driving while intoxicated “call[ed] into question the

efficacy of the chemical health education training” that relator completed pursuant to his

probation. The commissioner also considered relator’s conviction for disorderly conduct

in 2012, where it took the assistance of three security officers to escort relator out of a

location, to conclude that relator’s “combativeness demonstrates that [he] continue[s] to

have anger issues.”

       As to the ninth factor—“any other information relevant to reconsideration”—the

commissioner noted:


                                               3
                     Since your convictions [in 2007], you have had several
              driving offenses, in addition to the 2012 disorderly conduct
              offense. Moreover, on July 8, 2014, you were charged with
              hit and run to property . . . . Although these offenses are not
              disqualifications, they demonstrate your disregard of the law
              and are relevant to whether you pose a risk of harm.

Additionally, the commissioner stated that relator did not appear to take responsibility for

his actions that were the basis for the convictions in 2007, as evidenced by the

minimization of his wife’s injuries and his version of events that is inconsistent with his

conviction. The commissioner found eight of the nine risk factors determinative and

affirmed the disqualification. This certiorari appeal follows.

                                      DECISION

                                              I.

       The DHS is required to conduct a background study on anyone applying to work

in a facility licensed by the DHS or the MDH. Minn. Stat. § 144.057, subd. 1 (2014);

Minn. Stat. § 245C.03, subd. 1 (2014). If the DHS determines that an individual has been

convicted of or has admitted to a crime listed in Minn. Stat. § 245C.15 (2014), the

commissioner must disqualify that individual from providing direct services. Minn. Stat.

§ 245C.14, subd. 1(a)(1) (2014).

       “An individual who is the subject of a disqualification may request a

reconsideration of the disqualification” in writing within 30 days of receipt of the

disqualification notice. Minn. Stat. § 245C.21, subds. 1, 1a(c) (2014). “The disqualified

individual requesting reconsideration must submit information showing that . . . [he] does

not pose a risk of harm to any person served by the applicant . . . .” Id., subd. 3(a)(3)



                                              4
(2014). If the commissioner determines that “the individual has submitted sufficient

information to demonstrate that [he] does not pose a risk of harm to any person served,”

the commissioner may set aside the disqualification. Minn. Stat. § 245C.22, subd. 4(a)

(2014).

       When considering an individual’s request on reconsideration to set aside his

disqualification, the commissioner is statutorily required to weigh nine different factors

with regard to the particular position within which the individual seeks to work. Minn.

Stat. § 245C.22, subd. 4(b). These factors include

               (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.

       These factors are not intended to serve as a checklist, and the commissioner’s

decision on whether to set aside an individual’s disqualification may be based on “any

single factor.” Minn. Stat. § 245C.22, subd. 3 (2014). Moreover, the commissioner is

required to “give preeminent weight to the safety of each person served by

the . . . applicant . . . over the interests of the disqualified individual.” Id.




                                                 5
       The denial of relator’s set-aside request is a final administrative-agency action

subject to certiorari review. Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 444

(Minn. App. 1996). On appeal, this court examines the record to determine whether the

commissioner’s decision “was arbitrary, oppressive, unreasonable, fraudulent, under an

erroneous theory of law, or without any evidence to support it.” Anderson v. Comm’r of

Health, 811 N.W.2d 162, 165 (Minn. App. 2012) (quotation omitted), review denied

(Minn. Apr. 17, 2012). “Judicial review presumes the correctness of an agency

decision.” In re Claim for Benefits by Meuleners, 725 N.W.2d 121, 123 (Minn. App.

2006). The party challenging the agency’s decision bears the burden of proving that the

decision was improperly reached. City of Moorhead v. Minn. Pub. Utils. Comm’n, 343

N.W.2d 843, 849 (Minn. 1984).

       This court will sustain the agency’s decision if it is supported by substantial

evidence. Minn. Stat. § 14.69(e) (2014); Meuleners, 725 N.W.2d at 123. Substantial

evidence means: “1) such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than

‘some evidence’; 4) more than ‘any evidence’; and 5) evidence considered in its

entirety.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977).

       Relator argues that the commissioner’s decision is unsupported and arbitrary

because the commissioner used non-disqualifying offenses,1 such as his arrests and


1
  An individual is disqualified from providing direct services if he has been convicted of
a crime listed in Minn. Stat. § 245C.15. Minn. Stat. § 245C.14, subd. 1(a)(1). Careless
driving and disorderly conduct are characterized as “non-disqualifying” offenses as they
are not offenses specified in section 245C.15. See Minn. Stat. § 245C.15.

                                              6
convictions for careless driving and disorderly conduct that occurred after his 2007

conviction, as a basis for the determination without providing any rationale between the

non-disqualifying offenses and the risk of harm posed by relator.2 We disagree.

       With respect to whether relator successfully completed training or rehabilitation

pertinent to the disqualifying event, the commissioner noted that relator’s conviction of

careless driving subsequent to his arrest for DWI called into question the “efficacy of the

chemical health education training” that was required by probation. As to the conviction

for disorderly conduct, which required the assistance of three security officers to remove

him from a location, the commissioner found that it was demonstrative of relator’s

continued anger issues and combativeness. The commissioner went on to explain that

relator posed a risk of harm because the clients served by relator have a “wide range of

individual needs and may present extensive challenging behavior to their caregivers.”

Thus, contrary to relator’s assertion, the commissioner did give consideration to the

nature of the underlying new, non-disqualifying offenses and the risk of harm posed by

relator in making its decision. We conclude that the commissioner’s determination is not

arbitrary or capricious and is supported by substantial evidence.

       Relator also asserts that the commissioner inappropriately considered his non-

disqualifying offenses to conclude that his general “disregard of the law” was relevant to


2
  In his brief, relator argues that the commissioner abused its discretion by rescinding a
previously granted set-aside absent new evidence that relator posed a risk of harm.
However, during oral argument relator acknowledged that the commissioner’s decision
did not rescind any previously granted set-asides and rather it was a denial of a request to
set aside his disqualification. Thus, we need not address relator’s argument related to that
issue.

                                             7
whether he posed a risk of harm. However, as discussed above, the commissioner

properly considered the non-disqualifying offenses in connection to appellant’s

underlying conduct. Thus, this argument lacks merit.

       Finally, relator argues that the commissioner’s finding that relator’s wife was

vulnerable at the time of the assault is “patently false” because there is no evidence in the

record to support this. In its decision, the commissioner noted that although she was an

adult, relator’s wife was vulnerable at the time of the incident given the fact that she fell

out of a moving vehicle at 50 miles per hour while relator was threatening to kill her.

This finding is supported by the record and the commissioner’s conclusion based on this

finding is reasonable. Moreover, relator’s argument ignores the rule that any single

factor may be determinative in making the commissioner’s decision. See Minn. Stat.

§ 245C.22, subd. 3. Here, the commissioner found numerous risk factors to be

determinative. In sum, the commissioner’s decision is not arbitrary or capricious and is

adequately supported by substantial evidence.

                                              II.

       Relator contends that the commissioner was required to hold an evidentiary

hearing on his request for reconsideration and that the failure to do so violated relator’s

procedural due-process rights. “The due process protection provided under the

Minnesota Constitution is identical to the due process guaranteed under the Constitution

of the United States.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.

1988). To determine whether an individual’s right to procedural due process has been

violated, a reviewing court first determines whether a protected liberty or property


                                              8
interest is implicated and then determines what minimum procedures must be afforded by

applying a balancing test. Sweet v. Comm’r of Human Servs., 702 N.W.2d 314, 319

(Minn. App. 2005) (citing Mathews v. Eldridge, 424 U.S. 319, 332, 335, 96 S. Ct. 893,

901, 903 (1976)), review denied (Minn. Nov. 15, 2005).

       The Mathews balancing test requires us to consider: (1) the private interest that

will be affected by the governmental action; (2) the risk of erroneous deprivation of this

interest through the procedures used and the probable value of additional or substitute

procedural safeguards; and (3) the government’s interest, “including the function

involved and the fiscal and administrative burdens that the additional or substantive

procedural requirements would entail.” Obara, 758 N.W.2d at 878 (citing Mathews, 424

U.S. at 335, 96 S. Ct. at 903). Procedural-due-process claims are reviewed de novo.

Thompson v. Comm’r of Health, 778 N.W.2d 401, 403-04 (Minn. App. 2010).

       A.     Private interest

       In Sweet, we stated that “[e]mployment in an individual’s chosen field is

significant and weighs heavily in the individual’s favor.” 702 N.W.2d at 320. Relator

obtained a bachelor’s degree in nursing following the 2007 convictions and is currently

enrolled in a program to obtain a master’s degree in nursing. Admittedly, the

commissioner’s decision disqualified relator from working in the four facilities licensed

by the DHS. However, the commissioner’s decision did not affect any of relator’s

previous set-asides.3 And there is no indication from the record that relator would not be


3
 It should be noted that, although DHS performs background checks on both MDH- and
DHS-licensed facilities, the agencies make independent and separate eligibility

                                             9
able to continue working in facilities licensed by MDH, or that the commissioner’s

decision would affect positions with future employers licensed by MDH. Moreover,

there is no indication that this would prevent relator from seeking set-asides in the future.

This factor does not weigh in favor of relator.

       B.     Risk of erroneous deprivation and value of additional safeguards

       A person seeking reconsideration has the burden of proof to show that he does not

pose a risk of harm. Minn. Stat. § 245C.22, subd. 4. In Sweet, we determined that a

relator’s due-process rights were not prejudiced when he had the “unfettered right to

present all evidence, including letters of support, that he thought the commissioner should

consider in his written submission.” 702 N.W.2d at 321. We reach the same conclusion

here. Relator had the opportunity to submit written materials to the commissioner before

the decision was made, and indeed he did. In his request for reconsideration, relator

submitted a separate document that was almost identical to previous ones he submitted,

that provided extensive information relevant to the commissioner’s decision. Relator has

not demonstrated that he would have presented additional evidence if there was a hearing.

       Relator cites Thompson to argue that a contested hearing was required because the

ultimate issue involved a credibility determination. In Thompson, the relator had no

conviction and thus there was no prior adjudication which the commissioner could rely

upon to “lessen the risk of an erroneous determination.” 778 N.W.2d at 408. Because

credibility and veracity were at issue, this court determined that “[a]n evidentiary hearing

determinations. For facilities licensed by MDH, the commissioner of health reviews
requests for reconsideration, and the commissioner’s decision “is the final administrative
agency action.” Minn. Stat. § 144.057, subd. 3 (2014).

                                             10
would be highly valuable and written submissions were a ‘wholly unsatisfactory basis for

decision.’” Id. The evidence relied upon by the commissioner in relator’s case—the

2007 offenses and subsequent offenses—were all adjudicated and had credibility and

veracity determinations made, resulting in guilty convictions. There were police reports

in the record for the commissioner to review. Contrary to relator’s assertion, there were

no further credibility determinations to be made, and the commissioner’s decision did not

include one. The risk in Thompson of an erroneous deprivation requiring an evidentiary

hearing is not present in this case.

       Relator argues that the commissioner’s determination on whether relator posed a

risk of harm “is ultimately a credibility determination.” However, it is well-established

that a person’s request for reconsideration does not require an evidentiary hearing and

that a request for reconsideration always requires the commissioner to make a

determination on whether an applicant poses a risk of harm. Relator’s argument is

without merit and this factor does not weigh in his favor.

       C.     Government’s interest

       Relator does not address the third prong and concedes that it is not at issue. A

party that inadequately briefs an argument waives that argument. Brodsky v. Brodsky,

733 N.W.2d 471, 479 (Minn. App. 2007). This factor does not weigh in relator’s favor.

Based on the overall balance of the Mathews factors, we conclude that an evidentiary

hearing was not required and relator’s procedural due-process rights were not violated.

       Affirmed.




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