author: HANSON, Judge

text:
    SUNRISE LAKE ASSOCIATION, INC., Relator, v. CHISAGO COUNTY BOARD OF COMMISSIONERS, Respondent.
    No. C8-01-35.
    Court of Appeals of Minnesota.
    Sept. 4, 2001.

      Brian B. O’Neill, Elizabeth H. Schmies-ing, Jonathan T. Haines, Faegre & Benson, LLP, Minneapolis (for relator).
    David Wendorf, Wendland Timmerman, P.A., Blue Earth (for respondent Chisago County Board of Commissioners); and Barry L. Blomquist, Barry L. Blomquist Law Office, North Branch (for respondent Richard Gurtek).
    Considered and decided by RANDALL, Presiding Judge, HALB ROOKS, and HANSON, Judges.
   OPINION

HANSON, Judge

By writ of certiorari, relator appeals respondent-county’s decision to grant a conditional-use permit for a seasonal recreation park, asserting that respondent property owner’s proposed development constitutes a “manufactured home park,” which is prohibited by the county’s zoning ordinance. Because the county failed to state adequate reasons for issuing the conditional-use permit, and the units proposed to be installed in the park constitute manufactured homes, we reverse.

FACTS

In October 2000, respondent Richard Gurtek applied to respondent Chisago County (“the county”) for a conditional-use permit (“CUP”) to develop a seasonal recreation park for senior citizens on his property bordering Sunrise Lake. Gurtek proposed to install 99 “park-model cottages” that he would sell to the residents, but he would retain ownership of the land and collect lot rentals. The development, which includes a park pavilion, activity area, storm shelter and boat ramp, would remain open only from May through September, and residents would not have access to the property during the closed season.

During a meeting of the Chisago County Planning Commission, one of the commissioners expressed her belief that the proposed cottages were manufactured homes. Gurtek’s property is zoned agricultural, and the county’s zoning ordinance prohibits manufactured-home parks in agricultural districts. The commissioner asked for clarification on the difference between “a manufactured home,” as defined in the zoning ordinance, and the “park-model cottages” Gurtek intended to install.

In response, Gurtek submitted a letter from his consultant, Barr Engineering, which described the units by reference to an industry standard for a “recreational park trailer”:

[A] trailer type unit that is primarily designed to provide temporary living quarters for recreational, camping, travel, or seasonal use that * * * [is] built on a single chassis mounted on wheels * * *.

The Planning Commission reconvened to consider Gurtek’s CUP application. The commissioner who had voiced her concern at the earlier meeting continued to maintain that Gurtek’s proposed development was a manufactured home park, in violation of the zoning ordinance. The County Zoning Administrator responded that, according to Minnesota statutes, facilities that are open only seasonally are exempt from the definition of “manufactured home park.” The commissioners voted four to three to recommend Gurtek’s CUP to the Chisago County Board of Commissioners.

The Board of Commissioners ultimately voted to “accept the report and recommendation of the Planning Commission” and approved Gurtek’s CUP. By writ of certio-rari, relator Sunrise Lake Association, Inc. (“Sunrise”) appeals the county’s decision. See Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992) (noting judicial review of quasi-judicial administrative decisions must be invoked by writ of certiora-ri).

ISSUES

1. Is the county’s explanation of its reasons for granting the CUP sufficient to allow judicial review?

2. Does the proposed development meet the definition of a “manufactured home park,” which is prohibited by the zoning ordinance?

ANALYSIS

A county’s decision to grant or deny a CUP is a quasi-judicial decision. Neitzel v. County of Redwood, 521 N.W.2d 73, 75 (Minn.App.1994), revieiu denied (Minn. Oct. 27, 1994). The decision will be upheld unless it was unreasonable, arbitrary, or capricious. Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App.1997) (citation omitted), revieiu denied (Minn. Sept. 25, 1997). A challenge to the approval of a CUP must meet a higher burden of proof than a landowner’s challenge to a denial of a CUP. Board of Supervisors v. Carver County Bd. of Comm’rs, 302 Minn. 493, 499, 225 N.W.2d 815, 819 (1975).

I. Adequate Findings/Reasons to Support the Decision

We first review the grant of a conditional-use permit to determine whether the county’s explanation of its reasons for granting the CUP are sufficient to allow judicial review. See Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981) (stating decision-maker must give reasonable basis for zoning decisions); see also White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn.1986) (remanding for findings where city Council’s denial of special-use permit amendment lacked findings of fact or other explanation of its decision adequate for judicial review). In White Bear Rod & Gun Club, the supreme court stated:

While the city council was not required to prepare formal findings of fact, it was, “at a minimum,” required to “have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.”

388 N.W.2d at 742 (quoting Honn, 313 N.W.2d at 416).

Measured by these standards, the county’s actions are deficient. The minutes of its Board of Commissioners’ meeting merely describe the county’s action as to

accept the report and recommendation of the Planning Commission from its December 14, 2000, meeting and to authorize the issuance of a conditional use permit to Richard Gurtek for a seasonal leisure park for seniors at his property on Sunrise Lake.

That description does not contain a sufficient statement of the reasons to grant the CUP, unless those reasons are contained in the referenced December 14 report or are implicit in the use of the words “seasonal leisure park for seniors.”

The December 14 report does not provide appropriate findings or reasons to grant the CUP. The report indicates that the Planning Commission resolved the question whether the proposed use was for a prohibited manufactured home park by relying on a supposed statutory exemption for “facilities which are open only during three or fewer seasons of the year.” But this statutory definition of a manufactured-home park is not referenced or incorporated in the county’s zoning ordinance, and, accordingly, has no legal relevance to this zoning decision. Instead, this statutory definition is applicable only to the regulation of lot rentals for manufactured home parks. Thus, the reference in the minutes of the Board of Commissioners’ meeting to the Planning Commission’s report and recommendation does not provide adequate findings or a valid reason for the county’s decision.

Likewise, the reference in the minutes to a “seasonal leisure park for seniors” does not provide an explanation of, or a lawful basis for, granting the CUP. Those words are not used in the zoning ordinance. They appear to be an attempt to paraphrase the seasonal exemption contained in Minn.Stat. § 327C.01, subd. 5, which does not apply to the zoning ordinance. As a result, the county’s decision does not contain an adequate explanation of its reasons to allow judicial review and must be reversed.

II. Lawful Basis for Granting a CUP

Ordinarily, we would remand to the county for appropriate findings. But the record before the Board of Commissioners does not provide a lawful basis for granting a CUP on Gurtek’s present application because the application describes a development that is prohibited under the zoning ordinance.

Interpretation of a zoning ordinance presents a question of law, which we review de novo. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). The county’s zoning ordinance defines a “manufactured home” as:

A structure, transportable in one or more sections, which in the traveling mode, is eight body feet or more in width, or 40 body feet or more in length, or, when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes plumbing, heating, air conditioning, and electrical systems contained in it.

(Emphasis added.)

As noted above, the county cannot rely upon Minn.Stat. § 327C.01, subd. 5, to create a seasonal exemption to its definition of a manufactured home, since no such exemption appears in the zoning ordinance. The county’s alternative arguments on appeal focus on whether the park units proposed by Gurtek are “designed to be used as a dwelling,” a necessary element of the ordinance’s definition of a manufactured home.

The ordinance defines “dwelling” as

a building or portion thereof, designated exclusively for residential occupancy, including one-family, two-family, and multiple family dwellings, but not including hotels, motels, boarding houses, mobile homes or trailers.

(Emphasis added). The zoning ordinance fails to define either “mobile homes” or “trailers,” and in reaching its decision to grant Gurtek’s CUP, the county did not mention either of these exceptions. Because the terms “mobile homes” and “trailers” are not defined, the county perhaps enjoys some flexibility in giving meaning to those words. But reference to external sources, such as the Minnesota statutes, suggests to us that, at a minimum, “mobile homes” and “trailers” must have wheels and be capable of either being driven as or drawn by a motor vehicle. Cf. Minn.Stat. §§ 168.011, subd. 13 (2000) (defining “trailer” as “any vehicle designed for carrying property or passenger on its own structure and for being drawn by a motor vehicle”); 168.011, subd. 8(c) (2000) (defining “travel trailer” as “a trailer, mounted on wheels”).

The record before the Board of Commissioners does not contain a clear description of the proposed park units. Gurtek’s consultant, Barr Engineering, referred to Standard A119.5 of the American National Standard Institute, which defines a “Recreational Park Trailer” as:

[A] trailer type unit that is primarily designed to provide temporary living quarters for recreational camping, travel or seasonal use that * * * [is] built on a single chassis mounted on wheels * * *.

But an industry news release attached to Barr Engineering’s report describes several types of recreational park trailers, some of which are mounted on wheels and others of which are not. According to the literature, units that are 8'6" or less in width are mounted on wheels and are “like a traditional but slightly longer RV Travel Trailer,” whereas “units that are wider than 8'6" * * * must be transported by professionals with specialized equipment and state-issued highway permits.”

The county could lawfully determine that units that are 8'6" wide or less and mounted on wheels meet the “mobile homes” or “trailers” exception to the definition of a “dwelling” and, thus, are not a “manufactured home.” But the wider units, which are not mounted on wheels, do not fit within the exception for “mobile homes” or “trailers.” At oral argument before this court, counsel for Gurtek suggested that the proposed park units will be a mix of both types of park trailers. The floor plans for the proposed units submitted by Gurtek with his application for the CUP only illustrate units that are 11'10" wide. There is no indication these units are mounted on wheels, and it appears they could only be moved by professionals and with state-issued highway permits. The inclusion of these units in the development, in whole or in part, makes it a prohibited mobile-home park. Accordingly, we reverse the grant of a CUP based on Gurtek’s present application.

III. Sunrise’s Other Challenges

Sunrise raises other challenges to the CUP. Because these challenges may be relevant to any further application by Gur-tek, we will address them briefly.

Sunrise argues that the zoning ordinance prohibits Gurtek’s development, even if it were not a prohibited manufactured-home park, because it does not qualify as a permitted conditional use in an agricultural district. According to the zoning ordinance, where “a use is neither specifically permitted nor denied, the use shall be considered prohibited.” The zoning ordinance sets out conditional uses for agricultural land, including: “Commercial outdoor recreation areas that are similar to public recreation areas including private campgrounds, golf course, swimming pools, and resorts.” While Sunrise takes issue with whether Gurtek’s development meets the specific definitions for “campground” or “resort,” the terms “similar” and “including” indicate that the ordinance contains a non-exclusive list of examples of outdoor recreation areas. Given these broad terms, Gurtek’s seasonal leisure-park development plausibly fits into the permitted conditional-use category of a commercial outdoor recreation area.

Sunrise contends that the county’s Shoreland Management Ordinance prohibits the Gurtek development. Sunrise premises its argument on a statement made in the minutes to the November 21, 2000, public meeting: “The [Gurtek] proposal is also classified as a Planned Unit Development as permitted under Section 8.0 of Chisago County’s Shoreland Management Ordinance.” Sunrise correctly points out that planned unit developments (PUDs) are not listed among the permitted conditional uses in the agricultural zones. But Sunrise concedes that in granting Gur-tek’s application, the Board made no reference to the Shoreland Management Ordinance. Consequently, any argument that the Board erroneously approved Gurtek’s development as a PUD is purely speculative.

Sunrise argues that a combined reading of the zoning ordinance and the county’s comprehensive plan prevents approval of Gurtek’s CUP application. Section 8.05 of the zoning ordinance outlines additional possible effects of the proposed CUP for the Planning Commission to consider. Without specifying which effects, Sunrise argues that many of these factors call for the rejection of Gurtek’s application, including the Environmental Analysis Worksheet (EAW). But the Planning Commission did consider the EAW and determined that any concerns were sufficiently resolved. It properly concluded that an environmental-impact statement was not needed.

Sunrise argues that the county interferes with the comprehensive plan’s goal to “[p]revent the unnecessary conversion of prime farmland to non-farm uses” and to “[pjrevent incompatible land uses in the agricultural areas.” Nothing in the record indicates that Gurtek’s land is prime farmland. Moreover, the plan “is intended to be general in nature,” and “[ijmplementation of the Plan will be accomplished through other official controls, particularly the County’s zoning * * * ordinances.” There is no evidence that Gurtek’s development is incompatible with the comprehensive plan.

Finally, Sunrise argues that the Board of Commissioners acted arbitrarily and capriciously by “ignoring” its prior findings from 1987, when it denied Gurtek’s first application for a special-use permit. See Gurtek v. Chisago County, No. CO-88-520, 1988 WL 81554, at *2 (Minn. App. Aug.9, 1988) (upholding the county’s denial of Gurtek’s special-use permit because legally sufficient reasons existed to support the denial, and these reasons had a factual basis in the record). Sunrise offers no authority to support its claim that the county must consider or adhere to findings made 14 years ago on a different application. To the contrary, the zoning ordinance provides for reapplication for an identical CUP six months after a denial. We conclude that the county was not bound by its earlier findings.

DECISION

Because the county did not provide adequate reasons for granting the CUP, and the development described in the petition for a CUP meets the definition in the zoning ordinance of a prohibited manufactured home park, we hold that the county’s grant of the CUP was unreasonable and arbitrary.

Reversed.

      . The Planning Commission mistakenly cited to Minn.Stat. § 327.14, subd. 3, which had been replaced by Minn.Stat. § 327C.01, subd. 5 (2000).

      . In its brief, the county also argues that Gurtek's park units qualify as "seasonal cabins,” which are exempted from the zoning ordinance's definition of the term "dwelling unit.” Although the seasonal-cabin exception would likely include the proposed park units, the "dwelling unit” definition is not applicable because the words "dwelling unit” are not used in the definition of manufactured home. Counsel for the county conceded this at oral argument, when he acknowledged that "dwelling unit” did not apply because it was not referenced in the zoning ordinance's definition of a manufactured home.

      . Similarly, the county's attempt to define "mobile home” or "trailer” by analogy to the zoning ordinance’s definition of a "recreational vehicle” presupposes a unit on wheels, capable of being driven as or drawn by a motor vehicle.


source: Caselaw Access Project

author: R.A. RANDALL, Judge.

license: Public Domain

text:
    In the Matter of A.K.
    No. C5-00-2217.
    Court of Appeals of Minnesota.
    Sept. 11, 2001.
    Amy Klobuchar, Hennepin County Attorney, Nancy K. Jones, Assistant Henne-pin County Attorney, Minneapolis, MN, (for appellant Hennepin County Children, Family and Adult Services Department).

      Charles T. Parks, C. David Flower, Faegre & Benson LLP, Minneapolis, MN, (for respondent guardian ad litem).
    Considered and decided by RANDALL, Presiding Judge, WILLIS, and HANSON, Judges.
   OPINION

R.A. RANDALL, Judge.

On appeal from the district court’s order placing a child into foster care on a long-term basis after parental rights were terminated, the social-services agency argues that the district court lacked statutory authority to order long-term placement because, under Minn.Stat. § 260C.201, subd. 11(e) (2000), the court is not allowed to place a child under 12 years old into long-term care unless he or she is being placed with an older sibling. Because we conclude that the district court’s decision was governed by Minn.Stat. § 260C.325, subd. 4(d) (2000), rather than Minn.Stat. § 260C.201, subd. 11(e), we affirm.

FACTS

A.K. was born prematurely in 1991, and, as a result of complications from a breech birth, A.K. has severe developmental difficulties. A.K.’s father is unknown, and A.K. has never been in his mother’s care. His mother voluntarily placed him in foster care, and in 1997 he was placed in Deborah Harwood’s home, where he currently resides. In September 1997, A.K.’s mother entered into an adoption agreement with Children’s Home Society, and she specifically requested that Harwood adopt A.K. Harwood intended to adopt A.K. but was unable to do so for financial reasons. From all accounts, and the record is clear, Harwood has continued to provide A.K. with a loving, nurturing, and stable home and has diligently taken care of his extensive medical needs.

In September 1999, appellant Hennepin County Children, Family and Adult Services Department (CFASD) petitioned the district court for a statutorily mandated placement-review hearing. , After Children’s Home Society moved the court to rescind the adoption agreement between itself and A.K.’s mother because Harwood could not afford to adopt A.K., CFASD moved to amend its petition to allege that A.K. was a child in need of protection or services. The district court agreed and transferred legal custody to CFASD. Later CFASD petitioned to terminate A.K.’s mother’s parental rights. The district court granted CFASD’s petition, transferred legal custody to the Commissioner of Human Services, and scheduled a hearing to review CFASD’s progress toward adoptive placement for A.K. At that time, the court indicated that it was prepared to place A.K. in foster care with Harwood on a long-term basis. CFASD objected to the suggested placement so the court requested that the parties submit written arguments on the issue. Following another hearing on the matter, the court ordered A.K. to be placed in foster care on a long-term basis with Harwood, ordered CFASD to cease looking for adoptive placements for A.K., and ordered CFASD to take his name off of the state adoption register. CFASD appeals from this order.

ISSUE

Does Minn.Stat. § 260C.201, subd. 11(e) (2000), prevent the district court from placing a child under 12 years old into foster care on a long-term basis when parental rights have been terminated under Minn.Stat. § 260C.301 (2000)?

ANALYSIS

Statutory interpretation is a question of law subject to de novo review. In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn.1998). The purpose of statutory interpretation is to ascertain and effectuate the legislature’s intent. Minn.Stat. § 645.16 (2000). A reviewing court presumes “that plain and unambiguous statutory language manifests legislative intent.” J.M., 574 N.W.2d at 721 (citation omitted). If the language is plain and unambiguous, the reviewing court must give it its plain meaning. Id. “A statute is ambiguous when it can be given more than one reasonable interpretation.” Turna v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986) (citation omitted).

CFASD argues that the district court lacked statutory authority to order A.K.’s placement into long-term foster care because the permanency statute, Minn.Stat. § 260C.201 (2000), prohibits such a placement unless the child is at least 12 years old. By making this argument, CFASD assumes that the district court was acting under the permanency statute rather than another section of the Juvenile Court Act (chapter 260C). A.K.’s guardian ad litem argues that the court was acting under the act’s termination-of-parental-rights provisions, which gave the court authority to order A.K. to be placed in Harwood’s foster care on a long-term basis. A.K.’s guardian ad litem completely approved of Harwood as a long-term foster care provider noting the loving care Harwood gave A.K.

September 1999 was the first time CFASD alleged that A.K. was a child in need of protection or services, thus, the proper starting place for the district court was MinmStat. § 260C.201, subd. 1 (2000). Subdivision 1 provides the district court with an exclusive list of possible dispositions that the court must order if it finds that a child is in need of protection or services. MinmStat. § 260C.201, subd. 1(a). Included in the list is the disposition of transferring legal custody to the local social-services agency. Minn.Stat. § 260C.201, subd. 1(a)(2). In this case, this is the specific disposition that CFASD requested and the district court ordered.

After the district court orders its initial disposition, the statute requires the court to conduct a hearing to determine the permanent status of a child who has been placed out of his parent’s home. Minn. Stat. § 260C.201, subd. 11 (2000). When the court conducts a hearing to determine the child’s permanency status, this portion of the statute provides another list of exclusive dispositions that the court must order if the child is not returned home. MinmStat. § 260C.201, subd. 11(e). CFASD argues that this is the portion of the act under which the district court had to decide A.K.’s status. But the statute also provides:

If a termination of parental rights petition is filed before the date required for the permanency planning determination and there is a trial under section 260C.163 scheduled on that petition within 90 days of the filing of the petition, no hearing need be conducted under this subdivision.

MinmStat. § 260C.201, subd. 11(b) (2000) (emphasis added).

In this case, the permanency hearing was scheduled for April 10, 2000, but CFASD’s petition to terminate A.K.’s mother’s rights was filed on April 7, 2000, and was heard on May 9, 2000. Because CFASD petitioned the court to terminate A.K’s mother’s rights before the permanency hearing and trial was set within 90 days of the filing of the petition, the district court no longer had to proceed under Minn.Stat. § 260C.201. Contrary to CFASD’s argument, the court was not bound by the exclusive list of dispositions provided by Minn.Stat. § 260C.201, subd. 11(e) and could proceed, as it did, under the termination provisions of the Juvenile Court Act.

If the district court terminates all parental rights, the court must transfer legal custody to the Commissioner of Human Services, a licensed child-placing agency, or “an individual who is willing and capable of assuming the appropriate duties and responsibilities to the child.” Minn.Stat. § 260C.325 (2000). Here, when CFASD petitioned to terminate A.K.’s mother’s rights, it also requested that the court transfer legal custody to the commissioner. This is exactly what the court did. In addition, after termination, the court scheduled a hearing to review CFASD’s progress toward an adoptive placement of A.K. In the meantime, A.K. became a state ward in foster care, so the court was statutorily required to

conduct a dispositional hearing within 18 months of the child’s initial foster care placement and once every 12 months thereafter to determine the future status of the ward including, but not limited to, whether the child should be continued in foster care for a specified period, should be placed for adoption, or should, because of the child’s special needs or circumstances, be continued in foster care on a long-term basis.

Minn.Stat. § 260C.325, subd. 4(d) (2000) (emphasis added).

Based on Minn.Stat. § 260C.325, subd. 4(d), the court had authority to order continued foster care for A.K. on a long-term basis. Given the unambiguous statutory provisions, we conclude that Minn.Stat. § 260C.201, subd. 11(e), only applies to pretermination-of-parental-rights cases. Here, A.K.’s mother’s rights were already terminated, thus CFASD’s argument that the district court was required to order a disposition under Minn.Stat. § 260C.201, subd. 11(e), lacks merit.

CFASD also argues that Minn.Stat. § 260C.201 is a specific provision that limits the applipation of Minn.Stat. § 260C.325. CFASD asserts that reading the act in any other manner would lead to an absurd result, citing legislative testimony to support its assertion that long-term foster care can never be ordered under any of the act’s provisions unless the child is at least 12 years old or has a sibling who is at least 12 years old in foster care. Appellate courts may refer to a statute’s legislative history to determine how the language should be read if the language is ambiguous. Minn.Stat. § 645.16 (2000) (emphasis added). Here, the relevant portions of the Juvenile Court Act are not ambiguous. Thus, we need not refer to legislative history to decide the issue. When a statute’s words

in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.

Minn.Stat. § 645.16; see Borich v. Borich, 450 N.W.2d 645, 647 (Minn.App.1990) (stating if statutory language is unambiguous, reviewing court cannot supply that which legislature has declined to provide). Nowhere in the act does the legislature indicate that the limitation found in Minn. Stat. § 260C.201, subd. 11(e), which deals with petitions to determine if a child is in need of protection or services, applies to petitions to terminate parental rights. Additionally, the provision dealing with termination does not state that the court can only order long-term care subject to the limitations of 260C.201, subd. 11(e). Based on the statutory provisions’ unambiguous language, we conclude that Minn.Stat. § 260C.201 is not a specific provision that limits the application of Minn.Stat. § 260C.325.

CFASD contends that it did not have enough time to research suitable adoptive placements for A.K. because the court’s order that placed A.K. in long-term care was issued only five months after the court terminated parental rights. CFASD, both in its brief and at oral argument, spent a considerable amount of time speculating about what would happen to A.K. if Harwood changed her mind about caring for A.K. or lost her foster-care license. CFASD attempted to argue that adoption was in A.K.’s best interests because of the assumption that adoption would provide A.K. with a more nurturing and stable environment with a greater chance of long-term bonding with adoptive parents.

CFASD has not demonstrated any facts to support its assertion. The act’s termination provisions state that the child’s best interests are paramount. Minn.Stat. § 260C.301, subd. 7 (2000). Here, the record indicates that Harwood has provided a safe and nurturing home for A.K. since she began caring for him in 1997 and that the two have formed an extremely strong bond. Harwood has been diligent in attending to A.K.’s extensive medical needs. All parties agree that Harwood has provided A.K. with a life that he had never experienced before: a safe and stable home with a loving parent. Public policy and A.K.’s best interests are served by the district court’s decision to place A.K. into foster care on a long-term basis with Har-wood. Should it happen in the future that Harwood wishes to discontinue being a foster parent, the court can deal with that issue at that time. There is no need to speculate about that now. Also, the district court retains jurisdiction in this matter if Harwood is unable to continue to care for A.K. The court can make new arrangements at that time, if needed.

DECISION

Because parental rights were previously terminated, the district court had statutory authority to place A.K. into foster care on a long-term basis under Minn.Stat. § 260C.325. The district court acted properly in making its decision. The record convincingly demonstrates that A.K.’s best interests were met by placing him in Har-wood’s care on a long-term basis. The statute allows the court to order that placement.

Affirmed.

      . Hennepin County concedes that there is an imbalance between the authorized amount of money that counties can give to adoptive parents as opposed to foster parents. The present legislation favors the foster parents. When asked at oral argument if Hennepin County had thought of making a special arrangement with Harwood so it would be financially feasible for Harwood to adopt A.K., the county responded that this change would have to come from the legislature.

      . The legislature recently amended this provision, deleting the cited language and reinserting it, with minor changes, into Minn.Stat. § 260C.317, subd. 3(c) (2000). 2001 Minn. Laws ch. 178, art. 1, § 38. Although subdivision 3(c) deals with the court's retention of jurisdiction after parental rights are terminated when adoption is not the intended disposition, the language still indicates that the court can order long-term, out-of-home placement under the act’s permanency provisions or the termination provisions. This seems especially true since the subdivision now reads:
      The court shall retain jurisdiction in a case where long-term foster care is the permanent disposition whether under paragraph (c) or section 260C.201, subdivision 11.

        Id. (emphasis added). If the same facts of this case were to be presented in district court after the statutory amendments take effect, the court would still retain jurisdiction and be required to hold a hearing every 90 days following termination because, at the time of termination, adoption was the intended permanent-placement disposition. Minn.Stat. § 260C.317, subd. 3(b) (2000). The purpose of such a hearing is to
      review progress toward an adoptive placement and the specific recruitment efforts the agency has taken to find an adoptive family or other placement living arrangement for the child and to finalize the adoption or other permanency plan.

        Id. (emphasis added). Thus, the district court would still be allowed to order foster care on a long-term basis as part of a "placement living arrangement” or "permanency plan.”

      . CFASD also relies on In re the Welfare of J.M., 574 N.W.2d 717 (Minn.1998), to argue that Minn.Stat. § 260C.201 is a specific provision that limits the application of Minn.Stat. § 260C.325. But J.M. is distinguishable from the instant case. Unlike this case, the mother in J.M. was appealing from the district court’s order that terminated her parental rights so the case was still under the purview of Minn. Stat. § 260C.201. Here, because CFASD is not appealing from the court’s termination order, the supreme court’s rationale in J.M. is not applicable.


author: G. BARRY ANDERSON, Judge

text:
    Broderick ROETTGER, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C1-01-328.
    Court of Appeals of Minnesota.
    Sept. 11, 2001.

      Steven J. Meshbesher, Rory Patrick Durkin, Meshbesher <& Associates, P.A., Minneapolis, MN, (for appellant).
    Mike Hatch, Minnesota Attorney General, Sheila M. Fitzgerald, Assistant Minnesota Attorney General, St. Paul, MN, (for respondent).
    Considered and decided by PETERSON, Presiding Judge, AMUNDSON, Judge and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellant challenges the revocation of his driver’s license, arguing that the district court (1) clearly erred by finding that the Intoxilyzer machine was in proper working order at. the time of appellant’s re-test; and (2) erred by concluding that the state met its prima facie burden of establishing that the Intoxilyzer machine was in proper working order and that appellant failed to meet his burden of establishing that the test results were inaccurate or unreliable. We affirm.

FACTS

At approximately 1:00 a.m. on July 15, 2000, Stillwater Police Officer Bradley Allen arrested appellant Broderick Mark Ro-ettger for driving under the influence of alcohol. Allen read appellant the Minnesota Implied Consent Advisory, and appellant agreed to submit to an Intoxilyzer breath test. Allen is a Certified Intoxilyzer Operator with five years’ experience.

Allen transported appellant to the Washington County Police Department and parked his squad car in the “sally port,” an enclosed area similar to a garage. The sally port is adjacent to the detainee intake room where the Intoxilyzer machine is located. After bringing appellant to the intake room, Allen administered two Intox-ilyzer tests. The first test was successful. Appellant' gave an initial adequate sample, which registered a reported value of .116. During the second test, but before appellant provided a breath sample, the Intoxi-lyzer machine terminated the test due to “radio frequency interference” (RFI). Allen testified that a state patrol squad car entered the sally port prior to the second test, and that he suspected that squad ear radio transmission may have caused the RFI. Allen testified that while operating an Intoxilyzer machine two years earlier, a state patrol squad car, upon entering the sally port, emitted RFI that caused the machine to shut down. Allen, believing that the state patrol squad car caused the RFI, waited for the officer to exit his vehicle before beginning the re-test. After the re-test was completed, Allen asked the state patrol officer if he was transmitting when entering the sally port; the officer confirmed that he had been transmitting as he entered the garage.

During the re-test, the Intoxilyzer machine performed successful internal-diagnostic, air-blank, and calibration-standard tests. According to Allen, however, appellant refused to exhale steadily during the test, which resulted in 34 false attempts to provide a minimum adequate breath sample. Allen’s notes, completed during the re-test, corroborate his testimony. Eventually, the Intoxilyzer machine analyzed two acceptable breath samples for a final reported value of .10. The Intoxilyzer machine did not detect RFI during the retest.

At the implied-consent hearing held pursuant to MinmStat. § 169 .123 (1998), both appellant and the state presented expert testimony as to the reliability of the Intoxi-lyzer test results. Appellant’s expert, Thomas Burr, a forensic scientist, attacked the validity of the test results on two grounds. First, Burr stated that Allen did not follow the procedures set forth by the Bureau of Criminal Apprehension (BCA) for eliminating RFI, which recommend that an officer “remove the source of the radio transmissions or move [the] Intoxi-lyzer to a different location” after detecting RFI during the administration of an Intoxilyzer test. Burr suggested that Allen’s failure to follow proper procedures rendered the test results unreliable.

Second, Burr testified that RFI can cause inaccurate test results because it affects the scientific components of the machine. Burr stated that he has been able to operate an Intoxilyzer machine in the presence of RFI and record a false reading. As a result, Burr testified that the test results were unreliable. Burr, however, conceded that the machine he used to conduct his tests was an older series 66 model, not the series 68 model used to test appellant. But Burr contended that the scientific components are the same on both machines. Burr also stated that he did not have any supporting scientific study or research to support his conclusions.

The state introduced testimony from Sara Leach, a forensic scientist at the BCA. Leach testified that she had been trained on the Intoxilyzer machine used in this case, and concluded that the machine’s RFI detection feature “makes it impossible for the test to be completed once [RFI has] been detected; therefore you know that the results are actually accurate.” Leach stated that, in her opinion, appellant’s test results were valid and accurate. She noted that the diagnostic, calibration-standard, and air-blank tests were within the acceptable ranges and that the specific machine in question had no problems with RFI one month prior to appellant’s test and one month after appellant’s test. Leach also stated that Allen complied with BCA procedures when he completed the re-test. Leach noted that the Intoxilyzer machine did not detect RFI during the retest.

The district court sustained the revocation of appellant’s driving privileges, finding that the state met its prima facie burden of establishing that the Intoxilyzer machine was in proper working order and that appellant failed to meet his burden of establishing that the re-test administered by Allen was inaccurate or unreliable. This appeal follows.

ISSUES

I. Did the district court clearly err by finding that the Intoxilyzer machine was working properly at the time of appellant’s re-test?

II. Did the district court err by concluding that appellant failed to meet his burden of showing that the Intoxilyzer test results were inaccurate and unreliable?

ANALYSIS

I.

Appellant first argues that the district court clearly erred by finding that the Intoxilyzer machine was in proper working order at the time of appellant’s re-test. District court findings will be sustained unless they are clearly erroneous. Minn. R. Civ. P. 52.01. “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (quotation omitted). The appellate court views the evidence in the light most favorable to the factual findings and assumes the factfinder believed the state’s witnesses and disbelieved contrary evidence. State v. Atkins, 543 N.W.2d 642, 646 (Minn.1996). The district court’s conclusions of law will not be reversed absent an erroneous view of the law. Fritzke v. Comm’r of Pub. Safety, 373 N.W.2d 649, 650 (Minn.App.1985).

Appellant argues that the record shows that (1) RFI was present in the test environment; (2) RFI voided the second test; (3) RFI can interfere with an Intoxilyzer machine’s operation causing a higher or lower reading; and (4) Allen did not, during the re-test, follow the procedural safeguards that ensure the absence of RFI.

But there is ample evidence in the record to support the district court’s finding. The state introduced testimony from Leach, a forensic scientist, who stated that if there were RFI present during the administration of an Intoxilyzer test, the machine will automatically shut down. Leach further testified that Allen complied with the BCA recommendations regarding the detection of RFI; the evidence showed that Allen (1) located and removed the source of RFI, the state patrol squad car; (2) waited until the officer exited his vehicle before beginning the re-test; and by (3) confirmed that the state patrol officer had been transmitting when he entered the sally port.

Although appellant’s expert introduced conflicting evidence suggesting that the In-toxilyzer machine was not in proper working order during the re-test, he conceded that he did not conduct his tests on the same machine appellant used and did not have other scientific studies or research to support his conclusions. The district court, faced with conflicting testimony and in the best position to assess the weight and credibility of the witnesses’ testimony, resolved the conflict in the state’s favor. We generally defer to such determinations. Minn. R. Civ. P. 52.01; Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App.1984). Because we view the evidence in the light most favorable to the findings, and because we are satisfied that no mistake has been made, we conclude that the district court did not clearly err by finding that the Intoxilyzer machine was in proper working order at the time of appellant’s re-test.

II.

Appellant next challenges the reliability of the Intoxilyzer test results. A chemical test’s proponent must demonstrate that the test is reliable and administered in conformance with the procedures necessary to ensure its reliability. State v. Dille, 258 N.W.2d 565, 567 (Minn.1977). The results of an Intoxilyzer machine are admissible as a trustworthy and reliable measure of breath alcohol if the test is performed by a properly certified operator. Minn.Stat. § 634.16 (2000); Bond v. Comm’r of Pub. Safety, 570 N.W.2d 804, 806 (Minn.App.1997). When the prima facie requirements are met, it is incumbent on the opponent of the test to demonstrate why it is untrustworthy. Bond, 570 N.W.2d at 806. Although the ultimate burden of proof remains with the proponent, the test’s opponent must provide more than speculation to demonstrate invalidity. Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907, 909 (Minn.App.1986).

A. Prima Facie Evidence of Trustworthiness

Appellant argues that because the district court relied on an erroneous finding that the Intoxilyzer machine was in proper working order at the time of appellant’s re-test, the state did not establish a prima facie case that the Intoxilyzer test was trustworthy, accurate, and reliable. We have concluded, however, that the district court’s finding was not clearly erroneous. Moreover, the state established that a Certified Intoxilyzer Operator administered the test, the air-blank and calibration-standard test results were within acceptable ranges, and that Allen had no reason to believe that the test results were invalid. Importantly, the Intoxilyzer did not shut down or indicate RFI as it did during the first test. We conclude that the district court did not err by determining that the state made a prima facie showing of reliability.

B. BCA Recommendations

Appellant next argues that the In-toxilyzer test results were not reliable because Allen failed to follow BCA recommendations. As support, appellant points to Allen’s testimony that he was instructed to begin another test after detecting RFI, which conflicts with BCA recommendations that when an operator detects RFI, the operator should remove the source of the radio transmission or move the Intoxilyzer to a different location. Although Allen may have been given different instructions as to the operation of the Intoxilyzer machine after detecting RFI, a review of the record shows that Allen essentially followed the BCA recommendations. Allen testified that, based on his past experience, he determined a radio to be the source of the RFI and waited until the radio was turned off before beginning the re-test. The state’s expert concluded that this was sufficient compliance with the BCA recommendations. The better practice would have been to confirm that the state patrol officer had been transmitting when entering the sally port before beginning the re-test, but the failure to do so hardly makes the subsequent re-test unreliable. We conclude that the district court did not err by refusing to find the re-test unreliable based on appellant’s contention that Allen failed to follow BCA recommendations.

Appellant next argues that the facts of this case support test invalidation under McGregor v. Comm’r of Pub. Safety, 386 N.W.2d 339 (Minn.App.1986). In McGregor, the arresting officer testified that she observed the driver for 15 minutes prior to the Intoxilyzer test, but did not know the purpose of observation or what she should have been observing. Id. at 340. This court stated that “[u]nder the extreme facts” of that case, the commissioner did not meet his burden of establishing a prima facie showing of reliability. Id. at 341. Appellant argues that because Allen testified that he was instructed to begin another test when RFI was detected, which conflicts with the BCA recommendations, extreme facts exist in this case that should invalidate the test results.

But McGregor is distinguishable. Unlike the arresting officer in McGregor, Allen is a Certified Intoxilyzer Operator with five years of experience. Although Allen testified that he was instructed to begin a second test after detecting RFI, he also stated that he complied with the BCA recommendations. His testimony is supported by testimony from the state’s expert. We are not faced with “extreme facts” similar to McGregor and therefore reject appellant’s contention.

C. Burden to Rebut Prima Facie Evidence of Trustworthiness

Finally, appellant argues the testimony given by his expert witness, a distinguished forensic scientist, proved the unreliability of the Intoxilyzer test results. Appellant points to testimony from Mr. Burr, who stated: (1) RFI can interfere with the Intoxilyzer’s scientific components causing the machine to give a higher or lower alcohol reading; (2) he was able to operate an Intoxilyzer machine in the presence of RFI and get a false reading; and (3) the number 34, referenced on line five of appellant’s Intoxilyzer test record, evidences the presence of RFI. But appellant’s expert conceded that his own experiments were conducted with an older series 66 model, not the series 68 model used to test appellant, and he admitted that he had no other scientific evidence to support his assertion that RFI can interfere with the Intoxilyzer’s components causing the machine to give a higher alcohol reading. To the contrary, the state’s expert testified that the Intoxilyzer machine will automatically shut down if RFI is detected. Moreover, Allen explained that the number 34 on line five of the Intoxilyzer test records indicated the number of breaths appellant took when blowing into the machine. Allen testified that appellant would not breathe steadily into the machine, which resulted in 34 unsuccessful breath samples. Allen made a written note on the test result form that appellant refused to exhale steadily. Significantly, the Intoxilyzer machine did not detect RFI during the re-test. Because appellant brought forth only speculative evidence suggesting that RFI interfered with appellant’s re-test, we conclude that the district court did not err by concluding that appellant did not meet his burden of demonstrating that the In-toxilyzer test results were unreliable or untrustworthy. See Bond, 570 N.W.2d at 807 (stating prima facie evidence of reliability not rebutted where opponent of test result merely speculates as to possible problem with test).

DECISION

The district court did not clearly err by finding that the Intoxilyzer machine was in proper working order at the time of appellant’s re-test. The district court did not err as a matter of law by concluding that appellant did not meet his burden of demonstrating that the Intoxilyzer test results were unreliable or untrustworthy.

Affirmed.


author: PETERSON, Judge.

text:
    In the Matter of the ENLARGEMENT AND INCREASING the NUMBER OF MANAGERS OF the BROWN’S CREEK WATERSHED DISTRICT IN WASHINGTON COUNTY Pursuant to Minnesota Statutes 103D.261 and .305.
    No. C0-01-322.
    Court of Appeals of Minnesota.
    Sept. 11, 2001.

      Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., Stillwa-ter, for relator Middle St. Croix River Water Management Organization.
    Mike Hatch, Attorney General, Matthew B. Seltzer, Assistant Attorney General, St. Paul, for Minnesota Board of Water and Soil Resources.
    Doug Johnson, Washington County Attorney, Richard D. Hodsdon, Assistant County Attorney, Washington County Government Center, Stillwater, for County of Washington.
    Considered and decided by HARTEN, Presiding Judge, SCHUMACHER, Judge, and PETERSON, Judge.
   OPINION

PETERSON, Judge.

Respondent Minnesota Board of Water and Soil Resources (BWSR) granted respondent County of Washington’s petitions to enlarge two watershed districts, Brown’s Creek Watershed District and Valley Branch Watershed District. The enlarged watershed districts include property within the territories of two joint powers water management organizations (JP-WMOs), relator Middle St. Croix Valley Water Management Organization and Lower St. Croix Valley Water Management Organization. In this certiorari appeal, Middle St. Croix argues that BWSR lacks the authority to assign to a watershed district territory within a JP-WMO. We reverse.

FACTS

There are currently 11 water management organizations in Washington County, including Brown’s Creek, Valley Branch, Middle St. Croix, and Lower St. Croix. Brown’s Creek and Valley Branch are watershed districts. Middle St. Croix and Lower St. Croix are JP-WMOs. Under the joint-powers agreement that created Middle St. Croix in 1984, eleven communities authorized Middle St. Croix to manage their storm-water drainage and storm-water-regulatory-control systems pursuant to the Metropolitan Surface Water Management Act. Minn.Stat. §§ 473.875-.883 (1982); see also Minn.Stat. § 471.59 (1982) (joint-powers agreements).

In 1998, Washington County initiated a study of water governance in the county. The study identified several problems with JP-WMOs and both problems with and advantages of watershed districts. The study recommended that the number of water management units in the county should be reduced from 11 to six -and that local water management units should be watershed districts, not JP-WMOs.

As part of implementing the study’s recommendations, Washington County brought the petitions to enlarge Brown’s Creek Watershed District and Valley Branch Watershed District. The county alleged that watershed districts would be more effective and efficient in managing water resources than were JP-WMOs. At the hearings on the petitions, Washington County Administrator James Schug and Washington County Planner Jane Harper testified about the reasons why Washington County sought to enlarge the watershed districts. They both testified that growth pressures require a comprehensive solution to water and natural resources management in the county. They explained that watershed districts will be large enough to be professionally staffed and to provide a full range of programs and that a professional staff will facilitate communication with citizens and communities and promote accountability. Schug also addressed how watershed districts can be structured to promote tax equity and uniform costs for watershed districts throughout the county.

Based on its conclusions that enlarging Brown’s Creek and Valley Branch would further the public welfare, the public interest, and the purposes of MinmStat. chs. 103B and 103D, BWSR granted the county’s petitions. The area added to Brown’s Creek includes the northern part of Middle St. Croix’s territory. The area added to Valley Branch includes the southern part of Middle St. Croix’s territory and all of Lower St. Croix’s territory.

ISSUE

Did BWSR exceed its authority by enlarging the Brown’s Creek and Valley Branch watershed districts to include territory already within the Middle St. Croix and Lower St. Croix water management organizations?

ANALYSIS

Judicial review of a BWSR decision enlarging a watershed district is governed by Minn.Stat. § 14.69 (2000), which governs judicial review of agency decisions. See In re Sauk River Watershed Dist., 400 N.W.2d 416, 418-19 (Minn.App. 1987) (establishment of watershed district). Under Minn.Stat. § 14.69, BWSR’s decision will be reversed if it exceeds BWSR’s statutory authority.

Statutory construction is a question of law subject to de novo review. Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn.1996).

When a statute is unambiguous, the court must give effect to the statute’s plain meaning. But, when a statute is ambiguous, that is, when it is reasonably susceptible to more than one interpretation, the court must determine the probable legislative intent and construe the statute in a manner consistent with that intent.

Astleford Equipment Co., Inc. v. Navistar Int’l Transp. Corp., 611 N.W.2d 33, 37 (Minn.App.2000), aff'd in part, rev’d in part, 632 N.W.2d 182 (Minn.2001) (citations omitted). “While statutory construction focuses on the language of the provision at issue, it is sometimes necessary to analyze that provision in the context of surrounding sections.” American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 278 (Minn.2000).

We are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations. Finally, courts should construe a statute to avoid absurd results and unjust consequences.

Id. at 277-78 (citations omitted).

The boundaries of a watershed district located wholly within the metropolitan area can be changed pursuant to chapter 103D. Minn.Stat. § 103B.215, subd. 1 (2000). Minn.Stat. § 103D.261, subd. 2(a) (2000), grants BWSR the following authority to enlarge a watershed district:

After [a public] hearing, if the board determines that the enlargement of the watershed district as asked for in the petition would be for the public welfare and public interest and the purpose of this chapter would be served, the board shall, by making findings and an order, enlarge the watershed district.

The parties dispute whether Minn.Stat. § 103D.261, subd. 2, permits enlargement of a watershed district by adding territory already within a JP-WMO. There is no claim that a JP-WMO ceases to exist if the territory within it is added to a watershed district.

BWSR argues that Minn.Stat. § 103D.261 expressly contains only four requirements for enlargement of a watershed district: a petition by the county or other authorized party; service of the petition on specified parties; notice and a public hearing; and the requisite findings and order by BWSR. BWSR argues that the construction urged by Middle St. Croix would require this court to add language creating a fifth requirement for enlarging a watershed district, that the territory to be added not be within a JP-WMO. This argument has merit if we consider only section 103D.261. But we must consider this section in light of surrounding sections. To address BWSR’s argument, we must analyze Minn.Stat. §§ 103B.215, subd. 1, and 103D.261, subd. 2, in light of other provisions in chapters 103B and 103D. And our analysis must:

be guided by the “fundamental principle” that in interpreting a statute, form should not be exalted over substance and literal constructions should not override the general policy and objectives of the law.

Krumm v. R.A. Nadeau Co., 276 N.W.2d 641, 643 (Minn.1979).

The powers that JP-WMOs and watershed districts may exercise overlap. Minn. Stat. § 103B.211, subd. 1(a) (2000), which applies to JP-WMOs, states:

Any agreement under section 471.59 to jointly or cooperatively manage or plan for the management of surface water in a watershed delineated pursuant to subdivision 2, as required by sections 103B.205 to 103B.255, may provide, in addition to other provisions authorized by section 471.59, for a joint board having:
(1) the authority to prepare, adopt, and implement a plan for the watershed meeting the requirements of section 103B.231[.]

In describing the powers that a JP-WMO can exercise to regulate land use and development in a watershed, to maintain and construct new drainage systems, and to conduct financial activities, Minn.Stat. § 103B.211, subd. l(a)(3)-(7), specifically grants JP-WMOs the same powers granted to watershed districts under Minn.Stat. ch. 103D. Furthermore, Minn.Stat. § 103B.231, subd. 3(a) (2000), provides that, “Where a watershed management organization exists, the plan for the watershed must be prepared and adopted by the organization.” The plan is subject to review by BWSR “for conformance with the requirements of sections 103B.205 to 103B.255, and chapter 103D.” Minn.Stat. § 103B.231, subd. 9 (2000). After BWSR determines conformance with those requirements, the watershed management organization shall adopt and implement the plan. Id., subd. 10.

A watershed district can also be authorized to prepare, adopt, and implement surface water management plans in a watershed. See Minn.Stat. § 103D.201, subds. 1-2 (2000) (general and specific purposes of watershed districts). When a watershed district is established for that purpose, its managers must adopt a watershed management plan. Minn.Stat. § 103D.401, subd. 1 (2000). The plan is subject to approval by BWSR. Id., subd. 5. Upon approval, the plan becomes the watershed management plan for the watershed district. Id.

Because both JP-WMOs and watershed districts have authority to adopt and implement water management plans, enlarging a watershed district to include territory within a JP-WMO would create a situation where two entities have authority to perform the same water management tasks for the same territory. In light of the general policy and objective of chapters 103B and 103D to provide water management, we conclude that the legislature did not intend to allow two water management organizations to have concurrent authority to perform water management tasks for the same territory. At a minimum, doing so would be inefficient and, at the extreme, it could result in conflicting water management plans that call for different things to be done at a single location. In that situation, it could be impossible to implement the conflicting plans. We, therefore, construe Minn.Stat. § 103D.261, subd. 2(a), as not authorizing BWSR to enlarge a watershed district to include territory already within a JP-WMO when both the watershed district and the JP-WMO would be performing the same water management functions. See Minn.Stat. § 645.17(1) (2000) (“legislature does not intend a result that is absurd, impossible of execution, or unreasonable”).

Although BWSR did not make any findings on the functions to be performed by Brown’s Creek and Valley Branch, the record shows that Brown’s Creek, Valley Branch, Middle St. Croix, and Lower St. Croix are all authorized to manage surface water. We recognize that the county presented evidence that watershed districts would be more effective and efficient than JP-WMOs in managing water resources, but we, nevertheless, conclude that BWSR erred in granting the petitions to enlarge Brown’s Creek and Valley Branch because expanding the watershed districts into territory already within JP-WMOs creates conflicting surface-water-management authorities.

DECISION

BWSR exceeded its statutory authority in granting Washington County’s petitions to enlarge Brown’s Creek and Valley Branch to include territory already within JP-WMOs.

Reversed.

      . The order enlarging Valley Branch also changed its name to Lower St. Croix Valley Watershed District. To avoid confusion between Lower St. Croix Valley Watershed District and Lower St. Croix Valley Water Management Organization, we will refer to Lower St. Croix Valley Watershed District as Valley Branch and Lower St. Croix Valley Water Management Organization as Lower St. Croix.

      . Middle St. Croix was created under Minn. Stat. §§ 473.875-.883 (1988). In 1990, the legislature repealed Minn.Stat. §§ 473.875-.883 and recodified water laws in chapter 103B.1990 Minn. Laws ch. 391, arts. 1-10. The legislature intended the recodification "to be a clarification and reorganization of provisions of laws affecting water” and did not intend the changes that were made "to alter the laws affecting water.” 1990 Minn. Laws ch. 391, art. 10, § 1.


author: SCHUMACHER, Judge

text:
    STATE of Minnesota, Respondent, v. Steven James PEARSON, Petitioner, Appellant, and Steven James Pearson, Petitioner, Appellant, v. Commissioner of Public Safety, Respondent.
    Nos. CX-01-361, C3-01-363.
    Court of Appeals of Minnesota.
    Sept. 11, 2001.

      Mike Hatch, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, St. Paul, MN; and Roger L. Swenson, Bellingham City Attorney, Sarah E. Winge, Assistant City Attorney, Montevideo, MN, (for respondent State of Minnesota).
    Samuel A. McCloud, Kelly Vince Grif-fitts, Shakopee, MN, (for appellant).
    Mike Hatch, Attorney General, Matthew G. Frank, Assistant Attorney General, St. Paul, MN, (for respondent Commissioner of Public Safety).
    Considered and decided by TOUSSAINT, Chief Judge, SCHUMACHER, Judge, and PARKER, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SCHUMACHER, Judge

The trial court sustained the revocation of appellant Steven James Pearson’s driver’s license in an implied consent hearing, and Pearson was convicted and sentenced for driving with an alcohol concentration over .10 in a criminal trial based on stipulated facts. Pearson appealed both the implied consent and criminal cases and the appeals were consolidated. We affirm.

FACTS

On August 20, 2000, a Lac Qui Parle County sheriffs deputy stopped and arrested Pearson for driving under the influence. The deputy read Pearson the implied consent advisory, and Pearson agreed to a blood test. The deputy escorted Pearson to Madison Hospital for the blood test and provided a Bureau of Criminal Apprehension (BCA) blood kit to the medical laboratory assistant on duty, who administered the blood test.

The medical laboratory assistant had more than 19 years of experience and was certified by the Minnesota Society of Clinical Pathology in 1973. She testified at the implied consent hearing that a laboratory assistant and a medical laboratory assistant are the same. She knew of no separate degree or certification required for a laboratory assistant as compared to a medical laboratory assistant and did not know any laboratory assistants who were not medical laboratory assistants.

The blood sample was sent to the BCA, where a lab analyst determined that Pearson’s blood-alcohol concentration was .16.

ISSUES

1. Is a medical laboratory assistant a person qualified to draw blood under the implied consent law?

2. Does Minn.Stat. § 634.15 (1998), governing the admission of blood samples into evidence, violate the separation of powers doctrine of the Minnesota Constitution?

ANALYSIS

1. Pearson contends that the trial court erred as a matter of law by finding that a medical laboratory assistant was qualified to draw blood under Minn.Stat. § 169.123, subd. 3 (1998). The statutes provides that:

Only a physician, medical technician, physician’s trained mobile intensive care paramedic, registered nurse, medical technologist or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances.

Minn.Stat. § 169.123, subd. 3(a) (emphasis added). Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

Pearson argues that the list of persons considered competent to withdraw blood samples is exclusive, and because “medical laboratory assistant” is not on the list, the blood test should not be admissible. The district court disagreed, finding that the duties of a medical laboratory assistant and laboratory assistant were the same:

[The medical laboratory assistant] testified that there are no differences between her duties as a medical laboratory assistant and the duties of a laboratory assistant. Adding the word “medical” in front of [her] laboratory assistant title merely clarifies that her laboratory specialty is in the medical field, rather than another field such as soil science, water science, etc.

When interpreting statutes, the appellate court’s role is to give effect to the intent of the legislature. Correll v. Distinctive Dental Servs., 607 N.W.2d 440, 445 (Minn.2000). If the statutory language is clear, we rely on its plain meaning, but if the statute is ambiguous, we rely on the rules of statutory construction. Id.

We interpreted this provision of the implied consent statute in Olson v. Comm’r of Pub. Safety, 513 N.W.2d 491 1(Minn.App. 1994), and Bortnem v. Comm’r of Pub. Safety, 610 N.W.2d 703 (Minn.App.2000), review denied (Minn. July 25, 2000). In Olson, the driver’s blood was drawn by a phlebotomist. See The American Heritage Dictionary of the English Language 1361 (3d ed.1992) (defining phlebotomist as “one who draws blood for analysis or transfusion”). The phlebotomist testified that she was a “lab assistant with phlebotomy being [her] duty.” Olson, 513 N.W.2d at 493. The court concluded that a liberal construction of the statute does not exclude a phlebotomist whose only duty was to draw blood, noting that the DWI laws are to be interpreted liberally in favor of the public interest and against the private interests of the drivers involved. Id.

In Bortnem, this court found that a paramedic was not within the categories listed in the statute. 610 N.W.2d at 704. There, the blood was drawn by an emergency medical technician paramedic and not a “physician’s trained mobile intensive care paramedic” as required by the statute. Id. at 704-05. The court distinguished Olson because Olson did not add “phlebotomist” to the statutory list, but rather found that a phlebotomist fit within the category of “laboratory assistant.” Id. at 705.

The facts here are more closely analogous to Olson. While the term “medical laboratory assistant” is not included in the statute, a medical laboratory assistant can be considered a specialized type of laboratory assistant. The medical laboratory assistant here testified that there is no difference in the training required for a laboratory assistant and a medical laboratory assistant. The national certification for a laboratory assistant requires the same training as the Minnesota certification for a medical laboratory assistant and only requires the payment of an additional fee. Interpretation of the statute readily allows inclusion of a “medical laboratory assistant” within the category of “laboratory assistant.” The district court did not err in finding that a medical laboratory assistant was a person qualified to draw blood under Minn.Stat. § 169.123, subd. 3.

2. Pearson also contends that Minn. Stat. § 634.15 (1998), violates the separation of powers doctrine of the Minnesota Constitution by limiting existing court-promulgated procedures. Pearson argues that the legislature had no authority to enact a law limiting an individual’s ability to attack the admissibility of a blood test under the Rules of Evidence.

“In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law.” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citation omitted). The party challenging the constitutionality of a statute must show beyond a reasonable doubt that the Minnesota Constitution has been violated. Id.

The statute at issue allows a report of the blood analysis results to be admitted in evidence in an implied consent hearing if certain conditions are met. Minn.Stat. § 634.15. The report must be prepared by the person who administered the test; the person who drew the blood sample must be competent to administer the test under Minn.Stat. § 169.123, subd. 3; and the report must be prepared consistent with the rules promulgated by the commissioner of public safety. Minn.Stat. § 634.15, subd. l(b)(i)-(iii). If the report is signed by the person who drew the blood sample, it is admissible as evidence without proof of the seal, signature, or official character of the person who signed it. Minn.Stat. § 634.15, subd. 1(b). The defendant may subpoena the person who administered the blood test to testify, but the testimony is not necessary for the admissibility of the report. Minn.Stat. § 634.15, subds. 1-2.

The supreme court has inherent authority to create rules of procedure. See State v. Willis, 332 N.W.2d 180, 184 (Minn.1983). Pearson contends that Minn. Stat. § 634.15 purports to limit the admissibility of evidence, and that the rules of evidence prevail in a conflict between a procedural rule and a statute. See State v. Johnson, 514 N.W.2d 551, 558-54 (Minn. 1994) (stating that legislature has no constitutional authority to reserve a right to modify or enact statutes that will govern over court rules of procedure already in place) (citing Maynard E. Pirsig & Randall M. Tietjen, Court Procedure and the Separation of Powers in Minnesota, 15 Wm. Mitchell L.Rev. 141, 182 (1989)).

The legislature may enact laws that shift the burden of proof by allowing certain things to constitute prima facie evidence or create a rebuttable presumption. Juster Bros. v. Christgau, 214 Minn. 108, 118, 7 N.W.2d 501, 507 (1943); Willis, 382 N.W.2d at 184. Evidentiary presumptions created by the legislature have been held to be constitutional. Lott v. Davidson, 261 Minn. 130, 141-42, 109 N.W.2d 336, 344 (1961). The statute requires the use of a BCA blood-testing kit, which establishes a prima facie case for admissibility of the blood test result. State v. Dille, 258 N.W.2d 565, 568 (Minn.1977). Minn. Stat. § 634.15 is consistent with the rules of evidence. The use of a BCA kit and BCA analysis methods is sufficient to establish the test’s reliability. Genung v. Comm’r of Pub. Safety, 589 N.W.2d 311, 312-13 (Minn.App.1999), review denied (Minn. May 18, 1999).

A defendant in a criminal case may challenge the accuracy or reliability of the test by subpoenaing the laboratory assistant or BCA analyst to testify under Minn.Stat. § 634.15, subd. 2, allowing the court the opportunity to determine if the admission of the evidence was unfairly prejudicial. A blood sample report has been held to be admissible without establishing the foundation that the blood test administrator was qualified. Glick v. Comm’r of Pub. Safety, 362 N.W.2d 15, 16 (Minn.App.1985) (reasoning that intent of Minn.Stat. § 634.15 is to allow report into evidence routinely, “preventing unnecessary and costly court appearances or document production.”). The authenticity of the report need not be verified because it is “inferred from the place and nature of taking the sample.” Id.

In facts analogous to this case, the defendant in Willis claimed that Minn.Stat. § 169.121, subd. 2(b) (1982), violated the separation of powers clause by restricting the power of the courts to determine the relevancy and admissibility of evidence of the absence of blood, breath and alcohol tests in DWI prosecutions. 332 N.W.2d at 184. The court noted that the judiciary has the inherent power to establish rules of evidence, but cautioned:

Due respect for the coequal branches of government requires the court to exercise great restraint before striking down a statute as unconstitutional, particularly when it involves a determination of what is a legislative and what is a judicial function.

Id. The court found no separation of powers violation and enforced the statute at issue because it did not interfere with or impair the “judiciary’s function of ascertaining facts and applying the law to the facts established.” Id.

Similarly, Minn.Stat. § 634.15 does not interfere with or impair the judicial functions of ascertaining the facts and applying the law. The defendant in a criminal case who questions the validity of a test may subpoena the laboratory analyst or the person who prepared the blood sample report to testify. Minn.Stat. § 634.15, subd. 2(a)-(b). The court would be permitted to hear the testimony of such witnesses and ascertain the facts if the validity of the report or analysis was questioned. If the defendant requests the presence of the witness and the state fails to produce the witness, the test result is inadmissible. Weise v. Comm’r of Pub. Safety, 370 N.W.2d 676, 678 (MinmApp. 1985) (decided under 1984 version of statute which also applied to implied consent cases). The statute does not significantly impair the judicial function, but merely establishes a presumption of reliability that the driver may choose to rebut with live testimony.

DECISION

A medical laboratory assistant is a person qualified to draw blood under the implied consent law. Pearson has not proved beyond a reasonable doubt that Minn.Stat. § 634.15 (1998), governing the admission of blood samples into evidence, violates the separation of powers doctrine. The legislature may enact laws that shift the burden of proof by creating evidentia-ry presumptions and the statute does not interfere with the judicial functions of ascertaining facts and applying the law.

Affirmed.

      . Minn. Stat § 169.123 was repealed in 2000, effective January 1, 2001. The new statute is found at Minn. Stat § 169A.51, subd. 7. Because Pearson's arrest occurred on August 20, 2000, the 1998 statute applies.


author: PETERSON, Judge

text:
    Clay MONTELLA, et al., Relators, v. CITY OF OTTERTAIL, Respondent.
    No. C9-01-593.
    Court of Appeals of Minnesota.
    Sept. 18, 2001.

      Jason M. Hastings, Krekelberg & Skon-seng, P.L.L.P., Fergus Falls, MN, (for re-lators).
    Terry A. Karkela, Svingen, Athens, Russell, Hagstrom, Haugrud & Karkela, P.L.L.P., Perham, MN, (for respondent).
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and HARTEN, Judge.
   OPINION

PETERSON, Judge

In this appeal from a city council’s decision to deny relators’ request for a liquor-license application, relators contend that the city’s decision was arbitrary and capricious and not supported by evidence. We affirm.

FACTS

In 1998, relators Clay and Stacy Montel-la submitted an application to respondent City of Ottertail for a conditional-use permit to operate a business within the city. The application described the business as Brewster’s coffeehouse and ice cream parlor and indicated that the business would serve espresso, cappuccino, cheesecakes, desserts, and hard ice cream. The application also requested permission to display lawn ornaments and indoor and outdoor pools and to operate a showroom and offices. At a meeting on June 18, 1998, the city council orally granted the application. The parties agree that the city cannot locate the document that states the terms of the conditional-use permit.

Early in 2001, relators contacted the city and orally requested an application for a liquor license for Brewster’s. Relators later orally requested a hearing before the city council, seeking to modify their conditional-use permit to operate Brewster’s as a restaurant. Before a hearing was held, relators withdrew their later request and proceeded with their original request to obtain a liquor license application for Brewster’s under the existing conditional-use permit.

At a meeting on March 15, 2001, the city council addressed relators’ request for a liquor-license application. The meeting minutes state:

[Relators’] liquor license request was again brought-up. Councilman Don Patrick expressed his concern that Brew-sters, as it is now, does not fit the guidelines of a restaurant, as the original Conditional Use Permit was granted for an ice cream parlor and coffee house. Comments were made by Atty. Kent Madsen as to the state of Minnesota’s definition of a restaurant and had copies of certain statutes pertaining to liquor licenses.
Atty. Krekelberg said his clients, [re-lators], wanted to apply for a liquor license under their old Conditional Use Permit, and that the City of Ottertail should recognize this request.

The city council determined that Brewster’s was not a restaurant and, therefore, could not be issued a liquor license and orally denied relators’ request for a liquor-license application.

ISSUES

1. Was the city council decision to deny relator’s request for a liquor-license application unreasonable, arbitrary, capricious, or without evidence to support it?

2. Did the city council make an error of law when it determined that Brewster’s is not a restaurant?

ANALYSIS

I.

A city' council’s decision may be modified or reversed if the city violated constitutional provisions, exceeded its statutory authority, made its decision based on unlawful procedure, acted arbitrarily or capriciously, made an error of law, or lacked substantial evidence in view of the entire record submitted. Our review is confined to the record before the city council at the time it made its decision.

In re License of West Side Pawn, 587 N.W.2d 521, 523 (Minn.App.1998) (citing Minn.Stat. § 14.68-.69 (1996)). The party seeking reversal has the burden of demonstrating error. See Nevels v. State, Dep’t of Human Servs., 590 N.W.2d 798, 800 (Minn. App.1999) (citing Minn.Stat. § 14.69(d), (e) (1998)).

Relators argue that the city council’s decision to deny them a liquor-license application was unreasonable, arbitrary, and capricious because the council (1) acted on their oral application without providing a written application form ; (2) proceeded with the hearing without locating their original conditional-use permit, which they contend shows that they were operating a restaurant; and (3) concluded that the business was not a restaurant without proper investigation.

Before requiring relators to complete a written application, the city council followed an informal procedure under which it determined whether Brewster’s met the requirements for receiving a liquor license. Because Brewster’s did not meet the licen-sure requirements, no written application was completed. Although the record does not indicate that relators objected to the informal procedure the city council used, relators argue that the city council should not have acted without first permitting them to complete a written application. But relators have not identified any information that would have been provided to the council in a written application that was not available to the council when it made its decision. Therefore, relators have not met their burden of demonstrating that acting on their oral application without providing a written application form was unreasonable, arbitrary, or capricious.

Similarly, relators have failed to demonstrate that proceeding with the hearing without locating the original conditional-use permit or determining that Brewster’s was not a restaurant without conducting an investigation was unreasonable, arbitrary, or capricious. Relators’ conditional-use-permit application sought permission to operate a coffee house and ice cream parlor where espresso, cappuccino, cheesecakes, desserts, and hard ice cream would be served. The record contains no evidence, and relators make no claim, either that the conditional-use permit issued for Brewster’s differed in any respect from the application or that the operation of Brewster’s differed in any way from the authority requested in the permit application. And relators have not cited any evidence that would have been discovered if the council had conducted an investigation.

Relators have not satisfied their burden of showing that the city council erred when it denied their request for a liquor-license application without locating their conditional-use permit or conducting an investigation.

II.

Statutory construction is a question of law subject to de novo review. Ribbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). This court’s objective when construing a statute is to ascertain and effectuate the legislature’s intent. Minn.Stat. § 645.16 (2000).

When a statute is unambiguous, the court must give effect to the statute’s plain meaning. But, when a statute is ambiguous, that is, when it is reasonably susceptible to more than one interpretation, the court must determine the probable legislative intent and construe the statute in a manner consistent with that intent. In determining legislative intent, the court may consider the need for the law, the circumstances of its enactment, the purpose of the statute, the prior law, if any, the consequences of an interpretation, the legislative history, and administrative interpretations of the law.

Astleford Equip. Co., Inc. v. Navistar Intn’l Transp. Corp., 611 N.W.2d 33, 37-38 (Minn.App.2000) (citations omitted), rev’d in part on other grounds, 632 N.W.2d 182 (Minn. 2001). Words in a statute are construed according to their common and approved usage. Minn.Stat. § 645.08(1) (2000).

Minn.Stat. § 340A.404, subd. 1 (2000), states:

A city may issue an on-sale intoxicating liquor license to the following establishments located within its jurisdiction: (1) hotels; (2) restaurants; (3) bowling centers; (4) clubs or congressionally chartered veterans organizations with the approval of the commissioner, provided that the organization has been in existence for at least three years and liquor sales will only be to members and bona fide guests; (5) sports facilities located on land owned by the metropolitan sports commission; and (6) exclusive liquor stores.

Relators cite a dictionary that defines “restaurant” as, “A business establishment where meals or refreshments may be purchased,” and that defines “refreshment” as, “Something (as food or drink) that refreshes; or plural (1): a light meal (2): assorted light foods,” and argue that Brewster’s is a restaurant because refreshments are served there.

But Minn.Stat. § 340A.101, subd. 25 (2000), defines restaurant as

an establishment, other than a hotel, under the control of a single proprietor or manager, where meals are regularly prepared on the premises and served at tables to the general public, and having a minimum seating capacity for guests as prescribed by the appropriate license issuing authority.

This definition is narrower than the definition relators cite and limits a restaurant to an establishment where meals are regularly prepared and served. The statutory definition does not include a place where only refreshments that are not meals may be purchased.

Relators have cited no evidence of legislative intent that indicates that when the legislature used the word “meals” in the definition of “restaurant,” it was referring to the coffee and dessert items that are sold at Brewster’s. Absent any evidence that the legislature intended “meals” to be interpreted broadly enough to apply to these items served without any other food, we conclude that preparing and serving coffee and dessert does not constitute preparing and serving a meal. We reach this conclusion because in common usage, the word meal refers to a group of food items that includes a main course, and frequently includes a beverage, dessert, and other food items. Coffee and dessert are commonly parts of a meal, but they are not commonly considered to be a meal by themselves.

Also, if we interpret “meals” to include coffee and dessert served without any other food, we see no basis for concluding that any other food item served by itself would not be a meal. The consequence of such a decision would be to change the statutory definition of restaurant from an establishment that prepares and serves meals to an establishment that prepares and serves food. Had the legislature intended to define restaurant to include an establishment that prepares and serves food of any kind, it could have done so by simply using the word food, instead of meals.

DECISION

The Ottertail City Council did not err when it determined that because Brewster’s serves only espresso, cappuccino, cheesecakes, desserts, and hard ice cream, it is not a restaurant and cannot be issued a liquor license.

Affirmed.

      . Relators do not precisely describe the action of the city council that they are challenging. There is no dispute that relators orally requested an application for a liquor license, and they did not receive one because the city • council determined that Brewster’s is not a restaurant. Relators sometimes describe the council’s action as denying them a liquor license application and at other times as denying them a liquor license. Because it is apparent that the city council ultimately decided that Brewster’s does not meet the requirements for obtaining a liquor license, whether the council denied relators an application or a license does not affect our analysis.

      . We have not been able to obtain a copy of the dictionary relators cited in their brief, and we assume that the definitions they cite are accurately cited.


author: WILLIS, Judge

text:
    Donna M. MUELLER, Relator, v. COMMISSIONER OF ECONOMIC SECURITY, Respondent.
    No. C7-01-186.
    Court of Appeals of Minnesota.
    Sept. 18, 2001.
    Allen R. Webb, Burnsville, MN, for relator.
    Kent E. Todd, Minnesota Department of Economic Security, St. Paul, MN, for Commissioner.
    Considered and decided by LANSING, Presiding Judge, HARTEN, judge, and WILLIS, Judge.
   OPINION

WILLIS, Judge

Relator was denied unemployment-compensation benefits based on the determination of the commissioner’s representative that, because of a limitation on the hours she could work, she was not “available for employment” as required by Minn.Stat. § 268.085 (2000). Because the evidence reasonably supports the commissioner’s representative’s determination that relator was not eligible for benefits, we affirm.

FACTS

In 1990, relator Donna M. Mueller began working as a receptionist with Group Health, Inc. Apparently in late 1997 or early 1998, Mueller underwent surgery for neck and back injuries. Her physician recommended that she work no more than five hours per day, five days per week, and in March 1998, she began to work that schedule. Following another surgery, Mueller’s physician recommended that she work no more than three hours per day, five days per week. Group Health allowed Mueller to work that schedule from March 2000 until August 2000, when it terminated her employment. Mueller established a benefit account with the Department of Economic Security.

In September 2000, the department determined that Mueller was ineligible for benefits because she was “not fully able to work.” An unemployment-law judge affirmed the department’s decision, concluding that Mueller was not “available for employment” as required by Minn.Stat. § 268.085, subds. 1, 15 (2000). The commissioner’s representative reached the same conclusion. Mueller appeals by writ of certiorari.

ISSUE

Because of a medical restriction, relator is unable to work more than three hours per day. Did the commissioner’s representative err in determining that she was not eligible for benefits because she was not “available for employment” as required by Minn.Stat. § 268.085, subds. 1, 15 (2000)?

ANALYSIS

This court reviews the decision of the commissioner’s representative rather than that of the unemployment-law judge. See Weaver v. Minnesota Valley Labs., 470 N.W.2d 131, 133 (Minn.App.1991). A decision by the commissioner’s representative concerning an applicant’s eligibility for benefits will be upheld if it is reasonably supported by the evidence. Decker v. City Pages, Inc., 540 N.W.2d 544, 548 (Minn. App.1995).

To be eligible for unemployment-compensation benefits, an applicant must be able to work, available for employment, and actively seeking employment. Minn. Stat. § 268.085, subd. 1(2) (2000). An employee carries the burden of proving that she is eligible to receive benefits. Decker, 540 N.W.2d at 547. In order to be considered available for employment, an applicant must be “ready and willing to accept employment in the labor market area,” and there “must be no restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent accepting employment.” Minn.Stat. § 268.085, subd. 15(a) (2000). Further, an applicant

who has restrictions on the hours of the day or days of the week that the applicant can or will work, that are not normal for the applicant’s usual occupation or other employment, is not “available for employment.”

Id., subd. 15(d) (2000).

Mueller contends that Minnesota caselaw creates an exception to the availability requirement for applicants who have a limiting physical or mental condition, citing the following passage in Decker:

Except where a claimant’s physical or mental condition restricts his or her availability,
a claimant is considered available for work only if ready and willing to accept full-time suitable work. There must be no restrictions, either self-imposed or created by circumstances, which prevent accepting full-time work.
Minn. R. 3305.0500, subpt. 1 (1993) (referring to Minn. R. 3305.0400, subpt. 2 B. (1993)).

540 N.W.2d at 548. As the internal citation indicates, this exception was found in Minn. R. 3305.0400, subpt. 2(B), which provided:

Normally a claimant is required to be able to work and available for full-time work for all shifts which are customary for the occupation. However, a claimant whose physical or mental condition restricts availability to part-time work or to a particular shift shall be deemed able to work if there are jobs in the labor market area consistent with the limitations or such jobs can be expected to arise within a reasonable period of time.

Chapter 3305 of the Minnesota Rules was repealed in 1999. See 1999 Minn. Laws ch. 107, § 67. Section 268.085, which was rewritten in 1999 and addresses many of the subjects formerly addressed by chapter 3305, does not include an exception for an applicant whose physical or mental condition restricts her availability to do full-time work. But neither does section 268.085 impose a full-time work requirement from which such an exception need be hewed out. See, e.g., Minn.Stat. § 268.035, subd. 23a(e) (2000) (providing that if majority of applicant’s wage credits were earned from part-time employment, part-time employment will be considered “suitable employment” for purposes of determining eligibility). And section 268.085 acknowledges that there are applicants who have “restrictions on the hours of the day or days of the week” that they can or will work and asks whether, with those restrictions, an applicant can or will work the hours of the day or days of the week that are “normal for the applicant’s usual occupation or other employment * * Minn. Stat. § 268.065, subd. 15(d).

Here, the commissioner’s representative found that, because of Mueller’s medical restriction, she could not work the hours that are normal for her usual occupation or other employment. Mueller was found by the department in September 2000 to be ineligible for benefits. At the time of her hearing before an unemployment-law judge in October 2000, she had found no employment that would allow her to work only three hours per day. When she appealed to the commissioner’s representative in December 2000, she still had no such employment. The evidence, viewed in the light most favorable to the decision of the commissioner’s representative, reasonably supports the determination that Mueller was not available for employment.

DECISION

Relator, who was denied unemployment-compensation benefits, argues that because her medical condition limits the hours she can work, she is entitled to benefits under an exception to the requirement of Minn.Stat. § 268.085 (2000) that she be available for employment. The rule that formerly created an exception to a requirement that applicants be available for full-time work has been repealed, as has the rule imposing the full-time work requirement. An applicant who has restrictions on the hours of the day she can or will work is not “available for employment,” and thus not eligible for benefits, if those hours are not normal for the applicant’s usual occupation or other employment.

Affirmed.

      . Mueller urges us to look to the legislative history of section 268.085 to determine whether the legislature meant to do away with the exception for physical and mental conditions. Courts should turn to a statute's legislative history to determine how it should be construed only when the language of the statute is ambiguous. Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn.2000). Here, there is nothing ambiguous about the language of section 268.085; it simply does not contain the exception.