                          This opinion will be unpublished and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
                                      A14-1367

                              Janie “Jane” Astramecki, et al.,
                                        Appellants,

                                             vs.

                       Minnesota Department of Agriculture, et al.,
                                    Respondents.

                                   Filed May 18, 2015
                                 Reversed and remanded
                                       Kirk, Judge

                               Ramsey County District Court
                                 File No. 62-CV-13-8018


Lee U. McGrath, Anthony B. Sanders, Institute for Justice, Minneapolis, Minnesota; and

Erica Smith (pro hac vice), Institute for Justice, Arlington, Virginia (for appellants)

Lori Swanson, Attorney General, Kimberly Middendorf, Jonathan Moler, Assistant
Attorneys General, St. Paul, Minnesota (for respondents)

Nathan M. Hansen, North St. Paul, Minnesota; and

Judith I. McGeary (pro hac vice), Cameron, Texas (for amicus curiae Farm-to-Consumer
Legal Defense Fund)


         Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Kirk,

Judge.
                        UNPUBLISHED OPINION

KIRK, Judge

      Appellants challenge the dismissal of their claims challenging the constitutionality

of a requirement in the Minnesota Consolidated Food Licensing Law, Minn. Stat.

§§ 28A.01-.16 (2014), that food handlers be licensed if they sell outside of community

events or farmers’ markets or if they have more than $5,000 in gross receipts annually.

Because we conclude that the district court dismissed the complaint before the record was

adequately developed, we reverse and remand.

                                        FACTS

      Minnesota regulates the production and sale of food under the Minnesota

Consolidated Food Licensing Law, which provides that “[n]o person shall engage in the

business of manufacturing, processing, selling, handling, or storing food without having

first obtained from the commissioner a license for doing such business.” Minn. Stat.

§ 28A.04, subd. 1(a). The statute classifies food handlers as (1) retail food handlers,

“who sell or process and sell food directly to the ultimate consumer”; (2) wholesale food

handlers, who sell food to others for resale; (3) wholesale food processors or

manufacturers, “who process or manufacture raw materials and other food ingredients

into food items, or who reprocess food items, or who package food for sale to others for

resale”; and (4) food brokers, who buy and sell food and negotiate between buyers and

sellers of food. Minn. Stat. § 28A.05. The statute sets forth the licensing fees that are

required for each type of food handler depending on the amount of their gross sales.

Minn. Stat. § 28A.08, subd. 3.


                                           2
      The statute provides several exceptions from the general requirement that all food

handlers be licensed.   Minn. Stat. § 28A.15.     One such exception applies to “[a]n

individual who prepares and sells food that is not potentially hazardous food . . . at a

community event or farmers’ market with gross receipts of $5,000 or less in a calendar

year from the prepared food items.” Id., subd. 9. “Potentially hazardous food” is “food

that is natural or synthetic and is in a form capable of supporting . . . the rapid and

progressive growth of infectious or toxigenic microorganisms.” Minn. R. 4626.0020,

subp. 62 (2013). Another exception applies to “[a] person who receives less than $5,000

in gross receipts in a calendar year from the sale of home-processed and home-canned

food products,” if certain requirements are met. Minn. Stat. § 28A.15, subd. 10.

      Appellant Janie “Jane” Astramecki is a homebaker and homecanner and the owner

of appellant A Walk in the Clouds, Inc., which does business as Jane Dough Bakery.

Astramecki sells her homemade baked goods, jams, and jellies at two farmers’ markets.

She operates her bakery from a custom-built kitchen in the basement of her home, which

is separate from her family’s kitchen. Appellant Mara Heck has a full-time job, but

enjoys baking in her free time. Both Astramecki and Heck would like to expand their

production of home-baked or home-canned goods and sell their products directly to

customers outside of farmers’ markets or community events. Neither Astramecki nor

Heck have sought licensing under chapter 28A.

      In November 2013, appellants filed a complaint against respondents Minnesota

Department of Agriculture and Dave Frederickson, in his official capacity as the

commissioner of the Minnesota Department of Agriculture (collectively, the state),


                                            3
alleging that the sales-cap and venue restrictions that the state imposes on the sale of

home-baked and home-canned goods violate the equal protection and due process clauses

of the Minnesota Constitution.1       Appellants requested a declaratory judgment, a

preliminary and permanent injunction, and $1 in nominal damages.

       The state moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e), arguing

that appellants failed to state a claim for which relief may be granted. The district court

granted the state’s motion and dismissed the complaint. This appeal follows.

                                     DECISION

       A pleading “shall contain a short and plain statement of the claim showing that the

pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R.

Civ. P. 8.01. A party may move the district court for dismissal of the complaint if the

pleader fails to state a claim upon which relief can be granted. Minn. R. Civ. P. 12.02(e).

On appeal from the district court’s decision to grant a party’s motion to dismiss a

complaint, appellate courts review the legal sufficiency of the claim de novo. Bahr v.

Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010). On review, this “court must consider

only the facts alleged in the complaint, accepting those facts as true and must construe all

reasonable inferences in favor of the nonmoving party.”         Bodah v. Lakeville Motor

Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). We will dismiss a pleading “only if it

appears to a certainty that no facts, which could be introduced consistent with the


1
  Appellants also named the Minnesota Department of Health and that department’s
commissioner in their complaint, but the parties later agreed to dismiss the claims against
them with prejudice because the health department and its commissioner have no
authority over the challenged law.

                                             4
pleading, exist which would support granting the relief demanded.” Bahr, 788 N.W.2d at

80 (quotation omitted); see Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014)

(“A claim is sufficient against a motion to dismiss for failure to state a claim if it is

possible on any evidence which might be produced, consistent with the pleader’s theory,

to grant the relief demanded.”).

       Appellants argue that the district court erred by concluding that their equal-

protection claim failed. “The equal protection clauses of both the United States and

Minnesota [C]onstitutions mandate that all similarly situated individuals shall be treated

alike.” State v. Richmond, 730 N.W.2d 62, 71 (Minn. App. 2007) (quotation omitted),

review denied (Minn. June 19, 2007).             Under both clauses, “only ‘invidious

discrimination’ is deemed constitutionally offensive.” Scott v. Minneapolis Police Relief

Ass’n, 615 N.W.2d 66, 74 (Minn. 2000) (quotation omitted).             An individual who

challenges a statute based on a violation of equal protection must show that the statute

classifies individuals based on a suspect trait, either in practice or on its face. State v.

Frazier, 649 N.W.2d 828, 833-34 (Minn. 2002).            The statute is presumed to be

constitutional unless there is a fundamental right or suspect class at issue. Richmond, 730

N.W.2d at 71. Minnesota appellate courts apply rational-basis review if a fundamental

right or suspect class is not involved. Scott, 615 N.W.2d at 74. Neither of the parties

argues that a fundamental right or a suspect class is involved in this case. Thus, we apply

rational-basis review.




                                             5
       As a threshold matter, we must determine whether the plaintiff is similarly situated

to an individual who is treated differently under the challenged statute. 2        Schatz v.

Interfaith Care Ctr., 811 N.W.2d 643, 656 (Minn. 2012). “The focus . . . in determining

whether two groups are similarly situated is whether they are alike in all relevant

respects.”    State v. Cox, 798 N.W.2d 517, 522 (Minn. 2011).           Because the equal

protection clause does not require the state to treat individuals who are differently

situated the same, appellate courts routinely reject equal-protection claims when the

individual cannot establish that he or she is similarly situated to individuals who he or she

alleges are treated differently. Odunlade v. City of Minneapolis, 823 N.W.2d 638, 647

(Minn. 2012).

       Appellants argue that the district court erred by concluding that the exceptions do

not treat similarly situated individuals differently. They contend that the district court

incorrectly     compared     “regulated/licensed    commercial      food     handlers”     to

“unregulated/unlicensed home bakers and canners.” Appellants argue that the correct

comparison is instead between homebakers and homecanners who sell the same goods.

Specifically, they argue that the two classes created by the venue exception consist of the

following: (1) homebakers and homecanners who sell foods that are not potentially

hazardous prepared in unlicensed home kitchens at a farmers’ market or community


2
  We note that the supreme court recently determined that it was not necessary to decide
whether or how to apply the similarly situated test in a case where it could decide the
case by applying the rational-basis test. In re Durand, 859 N.W.2d 780, 784, 786 (Minn.
2015). But we do not apply that rationale here because of our ultimate conclusion that
there are insufficient facts in the record to determine whether the challenged statutory
exceptions satisfy the rational-basis test.

                                             6
event; and (2) homebakers and homecanners who sell the same foods prepared in the

same kitchens at any other venue. They further contend that there are two classes created

by the sales-cap exception: (1) individuals who sell less than $5,000 of not potentially

hazardous foods prepared in unlicensed home kitchens; and (2) individuals who sell more

than $5,000 of the same foods prepared in the same kitchens.

       We agree with appellants that the district court erred by comparing licensed food

handlers with unlicensed food handlers. Instead, the correct comparison is between two

groups of unlicensed food handlers: those who meet the sales-cap and venue restrictions

and those who do not. Cf. State v. Garcia, 683 N.W.2d 294, 299 (Minn. 2004) (rejecting

a comparison between juveniles and adults for equal-protection purposes because “[t]he

relevant comparison is between juveniles designated as EJJs who violate probation and

have an adult sentence executed, and juveniles certified as adults who are initially placed

on probation and then violate that probation and have their sentence executed”). These

two groups are similarly situated in all relevant respects. Because the statute treats

similarly situated individuals differently, the threshold similarly situated test is met.

Therefore, we next apply the rational-basis test.

       The federal rational-basis test requires a reviewing court to determine “whether

the challenged classification has a legitimate purpose and whether it was reasonable for

the lawmakers to believe that use of the challenged classification would promote that

purpose.” Studor, Inc. v. State, 781 N.W.2d 403, 408 (Minn. App. 2010) (quotations

omitted), review denied (Minn. July 20, 2010). But Minnesota applies a stricter rational-




                                             7
basis test. Id. (citing State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991)). The three-

part Minnesota test provides:

              (1) The distinctions which separate those included within the
              classification from those excluded must not be manifestly
              arbitrary or fanciful but must be genuine and substantial,
              thereby providing a natural and reasonable basis to justify
              legislation adapted to peculiar conditions and needs; (2) the
              classification must be genuine or relevant to the purpose of
              the law; that is there must be an evident connection between
              the distinctive needs peculiar to the class and the prescribed
              remedy; and (3) the purpose of the statute must be one that
              the state can legitimately attempt to achieve.

Id. (quotation omitted).

       Appellants argue that the district court erred by dismissing their equal-protection

claim at the rule-12 stage of the proceedings because they did not have the opportunity to

develop the record. We agree. Minnesota appellate courts have consistently recognized

that, unlike the more deferential federal rational-basis test, the Minnesota test does not

allow courts to “hypothesize a rational basis to justify a classification.” Russell, 477

N.W.2d at 889; see Greene v. Comm’r of Minn. Dep’t of Human Servs., 755 N.W.2d 713,

729 (Minn. 2008). Instead, the Minnesota test requires “a reasonable connection between

the actual, and not just the theoretical, effect of the challenged classification and the

statutory goals.” Russell, 477 N.W.2d at 889 (emphasis added). Because the Minnesota

test requires a factual assessment of the connection between a statute’s effect and its

purpose, there must be a sufficient record before the court to allow it to make that

assessment.




                                            8
      Here, the factual record is insufficient for us to determine whether the challenged

statutory exceptions satisfy the Minnesota rational-basis test.     We are particularly

concerned with the lack of evidence in the record at this stage of the proceedings that

shows how the venue and sales-cap restrictions are genuine or relevant to the purpose of

the law. And we note that we have been unable to find any cases applying the Minnesota

test at the rule-12 stage. Cf. Scott, 615 N.W.2d at 69, 74-76 (applying Minnesota test on

appeal from district court’s grant of summary judgment); Healthstar Home Health, Inc. v.

Jesson, 827 N.W.2d 444, 448-53 (Minn. App. 2012) (same). Therefore, we conclude that

the district court erred by dismissing the complaint before the record was adequately

developed and remand to the district court for further proceedings consistent with this

opinion.

      Reversed and remanded.




                                           9
