author: HANSON, Justice. GILDEA, Justice

text:
    HANS HAGEN HOMES, INC., Respondent, v. CITY OF MINNETRISTA, Appellant.
    No. A05-1686.
    Supreme Court of Minnesota.
    March 15, 2007.

      Gary A. Van Cleve, Larkin, Hoffman, Daly & Lindgren, Bloomington, for respondent.
    Justin Lee Templin, George C. Hoff, Hoff, Barry & Kuderer, P.A., Eden Prairie, for appellant.
    Miriam Elizabeth Stone, Builder Assn, of Twin Cities, Roseville, Thomas H. Boyd, Lloyd W. Grooms, Winthrop & Weinstine, P.A., Minneapolis, for amicus curiae Builders Assn, of Twin Cities.
    Scott A. Smith, Courtney Ward-Reich-ard, Dana M. Lenahan, Halleland Lewis Nilan & Johnson, Minneapolis, for amicus curiae for Minnesota Center for Environmental Advocacy.
    Susan Naughton, League of Minnesota Cities, St. Paul, for amicus curiae League of Minnesota Cities.
   OPINION

HANSON, Justice.

This appeal presents the question of whether a city’s failure to timely provide to an applicant a written statement of the reasons for the denial of a request regarding zoning, as required by subdivision 2(c) of Minn.Stat. § 15.99 (2004), triggers the automatic approval penalty for the failure of a city to timely “deny a request,” as provided in subdivision 2(a) of that section. Respondent Hans Hagen Homes, Inc. submitted a written application to appellant City of Minnetrista, requesting (1) rezoning of 220 acres of land and (2) an amendment to the City’s Comprehensive Plan. Hagen commenced a mandamus action against the City, claiming that although the City denied the request before the response deadline, it failed to provide to Hagen a written statement of the reasons for denial before the response deadline. Both parties moved for summary judgment. The district court granted Hagen’s motion and the court of appeals affirmed. Hans Hagen Homes, Inc. v. City of Minnetrista, 713 N.W.2d 916, 923 (Minn.App. 2006), rev. granted (Minn. July 19, 2006). We reverse.

Hagen controls property consisting of six parcels of land in Minnetrista, containing approximately 220 acres. On May 18, 2004, Hagen submitted to the City an application for rezoning and for an amendment to the City’s Comprehensive Plan. Specifically, Hagen asked the City to rezone the property from Rural Agriculture to Medium Density Multi-Family Residential Planned Unit Development (R-4PUD), and to adjust the Municipal Urban Services Area (MUSA) line to provide public services to the property. Under section 15.99, subdivision 2(a), the City was required to approve or deny the request within 60 days. On June 30, 2004, the City sent a letter to Hagen stating that it would need an extension on its response deadline. Hagen agreed to the extension, creating a response deadline of November 30, 2004.

On October 4, 2004, the city council held a public hearing to discuss Hagen’s application. A representative from Hagen was present. After listening to public comments and presentations, the city council voted to deny the application, with one member stating that Hagen’s requests are “not within the Comp[rehensive] Plan, and we need to have more studies based on traffic and other issues.” On October 18, 2004, the city council approved the minutes of the October 4 meeting and adopted Resolution 89-04, which contained written reasons for denying Hagen’s application. No representative of Hagen was present at the October 18 meeting.

The minutes of the October 18 meeting were approved on November 3, 2004, and the minutes from both the October 4 and October 18 meetings were posted on the City’s website before the November 30 response deadline. But the City did not directly deliver a written statement of the reasons for denial to Hagen until Hagen requested a copy of the resolution on December 9, 2004.

Hagen commenced this action against the City requesting a writ of mandamus directing the City to grant Hagen’s application on the grounds that: (1) the City failed to “provide” Hagen with a written statement denying the application before the response deadline; and (2) the City’s written statement was not consistent with the reasons stated on the record. The district court granted Hagen’s motion for summary judgment, stating that although the City’s written statement was consistent with the oral reasons stated on the record, “[ujnder the plain language of Minn.Stat. § 15.99 and clear precedent, the City violated Minn.Stat. § 15.99 by failing to provide a written statement to Hans Hagen by the November 30, 2004 deadline.” The court concluded that such a failure “mandates automatic approval of Hans Hagen’s application for rezoning and extension of the MUSA line.”

The court of appeals affirmed. Hans Hagen Homes, 713 N.W.2d at 923. The court of appeals reasoned that, although section 15.99, subdivision 2(c), did not specifically include a penalty clause, clauses (a) and (c) should be read together:

In a subdivided section that focuses successively on various aspects of the response deadline, a presumption that the contents of each subdivision must be restated in the parallel subdivisions would defeat the obvious purpose of the serial division. The context and the coordinated effect establish that the penalty in subdivision 2(a) is interrelated with, and applies to, the requirements in subdivision 2(c). Importantly, if subdivision 2(a)’s penalty did not apply to subdivision 2(c), the statute would provide no penalty for violating the mandatory requirements in subdivision 2(c).

713 N.W.2d at 921.

We granted the City’s petition for further review to consider whether the City’s failure to provide the written statement within the response period triggered the automatic approval penalty. This court reviews the issuance of a writ of mandamus de novo. McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989). Where statutory construction is necessary to reach a determination on whether the district court erred by issuing the writ of mandamus, that statutory interpretation is a question of law that this court also reviews de novo. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). When asked to construe a statute, we must first “determine whether the statute’s language, on its face, is ambiguous.” Id. A statute is ambiguous when the language is subject to more than one reasonable interpretation. Id. Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and we apply the statute’s plain meaning. Id.

The statutory language at issue here is found in subdivisions 2(a) and (c) of section 15.99, which provide:

(a) Except as otherwise provided in this section, * * * and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.
(c) * * * If a multimember governing body denies a request, it must state the reasons for denial on the record and provide the applicant in writing a statement of the reasons for the denial. If the written statement is not adopted at the same time as the denial, it must be adopted at the next meeting following the denial of the request but before the expiration of the time allowed for making a decision under this section. The written statement must be consistent with the reasons stated in the record at the time of the denial. The written statement must be provided to the applicant upon adoption.

(Emphasis added.) It is undisputed that the City denied Hagen’s application and stated in writing the reasons for its denial before the response deadline. Likewise, it is undisputed that the City did not directly deliver a written statement of the reasons for denial to Hagen before the response deadline.

The City argues that the automatic approval penalty only applies to noncompliance with the requirement of subdivision 2(a) — that the City make the decision before the response deadline — and does not apply to the requirement added by subdivision 2(c) — that the City provide the written statement of the reasons for the denial to the applicant. The City acknowledges that the requirement of subdivision 2(a) is mandatory, but argues that those of subdivision 2(c) are merely directory. In the alternative, the City argues that we should imply a prejudice standard to prevent automatic approval where the applicant has not been prejudiced by the City’s failure to comply with subdivision 2(c).

The legislature enacted section 15.99 in 1995 to establish deadlines for local governments to take action on zoning applications. Act of June 1,1995, ch. 248, art. 18, § 1, 1995 Minn. Laws 2415, 2477-78; see also Am. Tower, L.P., 686 N.W.2d at 312. As originally enacted, section 15.99, subdivision 2, required cities to do two things before the response deadline: (1) approve or deny the application; and (2) if denied, state in writing the reasons for the denial. Minn.Stat. § 15.99 (1996). And subdivision 2 provided that the failure to “deny a request” before the response deadline “is approval of the request.” Id.

Section 15.99 was amended in 2003 to, among other changes, renumber prior subdivision 2 as subdivision 2(a) and to add new subdivisions 2(b) and 2(c). Act of May 13, 2003, ch. 41, § 1, 2003 Minn. Laws 321, 321-22. Although subdivision 2(b) is not relevant here, subdivision 2(c) adds a requirement that the written statement of the reasons for denial “must be provided to the applicant upon adoption.” But, unlike subdivision 2(a), subdivision 2(c) does not express any consequence for the failure to comply. We conclude that the City’s failure to timely provide a written statement of the reasons for its denial to Hagen, as required by subdivision 2(c), does not result in the automatic approval penalty that is provided in subdivision 2(a), for several reasons.

First, we conclude that the statute is not ambiguous. The automatic approval penalty applies only to the “[fjailure of an agency to deny a request within 60 days” and denial is complete when a city votes to deny the application and adopts a written statement of its reasons for denial, whether or not the city provides notice to the applicant. This reading of the automatic approval penalty language in subdivision 2(a) is required because, when that penalty was originally enacted in 1995, the only requirements imposed on a city were those formerly contained in subdivision 2 and now contained in subdivision 2(a) — to approve or deny the request and to state the reason(s) for a denial in writing. Because there was no requirement in the original statute that a city provide a written statement of the reasons for denial to the applicant, the words “deny a request” could at most refer to the requirements of then subdivision 2 that a city vote to deny the application and reduce its reasons for denial to writing.

Second, when the legislature amended section 15.99 in 2003, by renumbering subdivision 2 to subdivision 2(a) and adding subdivision 2(c), the legislature did not change any of the words of the automatic approval penalty, which remained tied to the failure of a city “to deny a request.” Further, the legislature did not provide a penalty in subdivision 2(c) or reference the penalty from subdivision 2(a) in subdivision 2(c).

Third, we disagree with the conclusion of the court of appeals that, without a penalty for noncompliance, subdivision 2(c) would be “superfluous” and would “have no effect.” Hans Hagen Homes, 713 N.W.2d at 921. We know of no reason why the legislature must provide a consequence for noncompliance for every requirement of a statute. To the contrary, om' case law recognizes that a statute may contain a requirement but provide no consequence for noncompliance, in which case we regard the statute as directory, not mandatory. In State by Lord v. Frisby, we said:

It is generally said that, where the provisions of the statute do not relate to the essence of the thing to be done, are merely incidental or subsidiary to the chief purpose of the law, are not designed for the protection of third persons, and do not declare the consequences of a failure of compliance, the statute will ordinarily be construed as directory and not as mandatory.

260 Minn. 70, 76, 108 N.W.2d 769, 773 (1961); see also Sullivan v. Credit River Twp., 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974) (stating that when a statute fails to provide consequences for failure to comply it is directory rather than mandatory).

We recognize that we have sometimes called a statute “mandatory” simply because it uses the words “shall” or “must.” For example, in State by Beaulieu v. RSJ, Inc., we held that a statute that included the word “shall” was “mandatory” even though it did not provide consequences for failing to comply with its requirements. 552 N.W.2d 695, 701-02 (Minn.1996). But we have used the word “mandatory” in two different contexts, each suggesting a slightly different meaning. In Beaulieu, our use of the word “mandatory” was only meant to confirm that the statutory word “shall” is mandatory, not permissive. See id.; Minn.Stat. § 645.44, subds. 15, 16 (2006) (defining “may” and “shall”). We did not intend to suggest that we could imply from the word “shall” that there would be specific but unexpressed consequences for noncompliance with a statute. In Sullivan and Frisby, we used the word “mandatory” in a different context, to distinguish mandatory from directory, based on whether the statute expressed specific consequences for noncompliance. Sullivan, 299 Minn. at 176-77, 217 N.W.2d at 507; Frisby, 260 Minn. at 76, 108 N.W.2d at 773.

The failure of a statute to provide consequences for noncompliance with its requirements does not make the statute ineffective. When a statute requires a governmental body to perform some act, it is reasonable to assume the governmental body will do so or it could be compelled to do so by mandamus. See, e.g., Latourell v. Dempsey, 518 N.W.2d 564, 566 (Minn.1994) (mandamus granted to compel trial court to appoint counsel); County of Ramsey v. Stevens, 283 N.W.2d 918, 922 (Minn.1979) (mandamus granted when city had a legal duty to enact ordinance).

Our view is consistent with the decisions of the court of appeals under section 15.99, subdivision 2, prior to the 2003 amendments. The court of appeals interpreted the automatic approval penalty to be triggered by a city’s failure to do two things within the response deadline: (1) to make a decision; and (2) to reduce the reasons for any denial to writing. See Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278 (Minn.App.2000), rev. denied (Minn. July 25, 2000); Manco of Fair- mont, Inc. v. Town Bd. of Rock Dell Twp., 588 N.W.2d 298 (Minn.App.1998), rev. denied (Minn. Oct. 20,1998). In Demolition Landfill Services, the court of appeals said:

We conclude therefore, that simultaneous, written reasons for a denial are mandatory and not directory. Because we hold that the provisions of subdivision 2 are mandatory, including the requirement that written reasons be given simultaneously with the decision, the substantial performance doctrine is not applicable to this case.

609 N.W.2d at 282 (footnote omitted).

The court of appeals decision in Manco is also instructive because it made a distinction between the mandatory and directory parts of section 15.99. 583 N.W.2d at 295-96, It held that the provision of the former subdivision 2 and current subdivision 2(a), requiring that a decision be made within the response deadline, was mandatory because the automatic approval penalty provides the consequence for failing to comply. 583 N.W.2d at 295. But it held that the provision of subdivision 3(f), that a notice to extend the 60-day deadline “must state the reasons for the extension,” is only directory because subdivision 3(f) did not express any consequences for failure to comply. 583 N.W.2d at 296. Likewise, we conclude that the requirement of subdivision 2(a), that a city deny a request within the response period, is mandatory because the automatic approval penalty applies to noncompliance with that subdivision, but that the requirement of subdivision 2(c), that a city provide the written statement of the reasons for denial to the applicant, is only directory because subdivision 2(c) does not contain an automatic approval penalty or express any other consequence of noncompliance.

Our decision is consistent with subdivision 3(c) of section 15.99, which states that an “agency response meets the 60-day time limit if the agency can document that the response was sent within 60 days of receipt of the written request.” Because subdivision 3(c) was part of the original enactment of section 15.99, when that section did not contain any requirement that a city provide a written statement of reasons for denial to the applicant, we necessarily read subdivision 3(c) to mean simply that this is one way that a city can prove that it has met the 60-day deadline, but it is not the only way that a city may do so.

Although the interpretations given by other courts to automatic approval penalty statutes are not precedential, we note that our reading of section 15.99 is consistent with the courts of those states that have similar statutes. See, e.g., Hinsdale v. Vill. of Essex Junction, 153 Vt. 618, 572 A.2d 925, 928 (1990) (holding that the notice requirement was directory and did not trigger automatic approval even though that requirement and the requirement to render a timely decision were in the same statute); Limekiln Golf Course, Inc. v. Zoning Bd. of Adjustment of Horsham Twp., 1 Pa.Cmwlth. 499, 275 A.2d 896, 904 (1971) (holding that automatic approval was not appropriate even though the board failed to timely mail the decision to deny, because the notice requirement was directory not mandatory).

Our discussion thus far has been based on our conclusion that the statute is not ambiguous. But even if we were to conclude that the juxtaposition of subdivision 2(a), with an automatic approval penalty, and subdivision 2(c), with no explicit penalty, created some ambiguity, we would reach the same result.

We have said that the purpose of subdivision 2 was to establish “deadlines for local governments to take action on zoning applications.” Am. Tower, L.P., 636 N.W.2d at 312. That purpose is fully accomplished by construing the requirement of subdivision 2(a) that the agency take action on the application to be mandatory and subject to the penalty, but the requirement of subdivision 2(c) that the agency give written notice to the applicant to be directory and not subject to the penalty. See Minn.Stat. § 645.16 (2006) (“The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.”).

Several rules of statutory construction also favor the City’s argument because they suggest that subdivision 2(a) should be construed narrowly against the application of the automatic approval penalty. One such rule of construction is the general notion that statutes that are penal in nature are construed narrowly against the penalty. See Brekke v. THM Biomedical, Inc., 683 N.W.2d 771, 774 (Minn.2004) (citing Chatfield v. Henderson, 252 Minn. 404, 410, 90 N.W.2d 227, 232 (1958)). Another rule of construction is the presumption that “the legislature intends to favor the public interest as against any private interest.” Minn.Stat. § 645.17(5) (2006). Here, the public interest is reflected in the City’s present zoning and Comprehensive Plan and they outweigh the private interests of Hagen to have its application automatically approved without any consideration of the public interest.

This presumption favoring the public interest, when joined with the further presumption that the legislature does not intend a result that is unreasonable, Minn. Stat. 645.17(1) (2006), supports a narrow construction of the automatic approval penalty because that penalty conflicts with the affirmative responsibilities that are placed on the City when dealing with a request to change zoning. Under Minn. Stat. § 462.357, subds. 2, 3, and 5 (2006), a city is only to amend a zoning ordinance after notice has been given, a public hearing held, and either consents have been obtained by a requisite number of affected residents or the approval is supported by the planning board and adopted by a majority of the city council.

For the above reasons, we hold that a city’s failure to timely provide an applicant with a written statement of the reasons for denying an application regarding zoning, as required by section 15.99, subdivision 2(c), does not trigger the automatic approval penalty of subdivision 2(a), which only applies to the failure to timely deny the application. Reversed.

Concurring, GILDEA, J.

GILDEA, Justice

(concurring).

I concur with the majority’s conclusion to reverse the court of appeals. I write separately to express my view that we should not invoke principles of statutory construction to resolve this case.

The majority holds that the provisions of Minn.Stat. § 15.99 that are at issue — subdivisions 2(a) and 2(c) — are not ambiguous. I agree. When we conclude that a statute is not ambiguous, as we have done here, “statutory construction is neither necessary nor permitted.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001) (emphasis added). Our only task is to apply the clear language of these provisions to the facts of this case. This application, as the majority demonstrates, requires reversal. Nothing more need be said.

      . The automatic approval penalty language of subdivision 2(a) could be read even more narrowly. Because the triggering event of the penalty is the failure “to deny a request," the penalty could be read to apply only where the City has not acted on the request (i.e., has not held a public hearing and taken a vote) before the expiration of the response deadline. But, because the City does not argue for that narrower construction, and the facts before us show that the City did both — acted to deny and stated its reasons for denial in writing— before the expiration of the response deadline, we will not decide that precise issue and instead leave it for another day.

      . We recently reviewed a third decision of the court of appeals under the pre-2003 amendments to section 15.99, subdivision 2. See Breza v. City of Minnetrista, 725 N.W.2d 106 (Minn.2006). There we narrowly construed subdivision 2 in favor of the City of Minnetris-ta, holding that where the scope of a city's authority to grant an exemption is limited by state law, the automatic approval penalty of subdivision 2 cannot operate effectively to grant a broader exemption. 725 N.W.2d at 114. Before Breza, we had only addressed section 15.99 in American Tower, where we were asked to construe subdivisions 2, 3(a), and 3(1), to determine whether a city could extend the initial response deadline before the 60-day period began to run. 636 N.W.2d at 312-13. We held that a city could not prospectively extend the response deadline and thus was required to issue a requested conditional use permit. Id. at 313.

      . In this regard, Hagen's reliance on Concept Properties, LLP v. City of Minnetrista, is misplaced. 694 N.W.2d 804 (Minn.App.2005), rev. denied (Minn. July 19, 2005). There, the court of appeals said only that “it is clear that the agency complies with [former subdivision 2, now subdivision 2(a)] so long as the agency can document that it made a decision to deny the application and sent a decision by the deadline,'' but did not say this was the exclusive way to comply. 694 N.W.2d at 826. Further, Hagen's reliance on Minnesota Towers, Inc. v. City of Duluth, No. Civ. 04—5068, 2005 WL 1593044, at *5 (D.Minn. July 1, 2005), is misplaced, both because that case involved a situation where the city did not reduce the reasons for denial to writing until after the response deadline, and because the district court’s decision has been reversed by the Eighth Circuit Court of Appeals. See Minnesota Towers, Inc. v. City of Duluth, 474 F.3d 1052, 1055-56 (8th Cir.2007) (discussing the relationship between subdivisions 2(b) and (c) of Minn.Stat. § 15.99 and holding that subdivision 2(c) does not require that a written statement be adopted within the 60-day period where the situation is one that is specifically addressed in subdivision 2(b) — the denial results from the failure of a vote on a motion to approve the zoning request).

      . We have also said that a city's zoning decisions cannot be arbitrary, capricious, or unreasonable. Honn v. City of Coon Rapids, 313 N.W.2d 409, 414-15 (Minn.1981) (" 'As a legislative act, a zoning or rezoning classification must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare.’ ” (quoting State by Rochester Ass’n of Neighborhoods v. City of Rochester, 268 N.W.2d 885, 888 (Minn.1978))); Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 75 (Minn.1984) (stating that the failure of a city to advance any rationale for not following its comprehensive plan is strong evidence of arbitrary action). The automatic approval penalty would result in an approval without any reasons and without the support of the planning board or a majority of the council.

      . Because we reverse, we need not reach the City's second argument that a prejudice standard should be incorporated into the automatic approval penalty of subdivision 2(a).


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Kevin Donald TURCK, Respondent.
    No. A06-846.
    Court of Appeals of Minnesota.
    March 20, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Vance. B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, Hastings, MN, for appellant.
    John M. Stuart, State Public Defender, Philip Marrón, Assistant Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; HALBROOKS, Judge; and ROSS, Judge.
   OPINION

HALBROOKS, Judge.

On appeal from the district court’s decision to stay execution of respondent’s sentence and place him on probation, appellant State of Minnesota argues that the district court erred by failing to impose the mandatory-minimum sentence required under Minn.Stat. § 152.023, subd. 3(b) (2004). Because we conclude that the district court erred, we reverse and remand for resentencing.

FACTS

Respondent Kevin Donald Turck pleaded guilty to one count of third-degree eon-trolled-substance crime in violation of Minn.Stat. § 152.023, subds. 2(1), 3(b) (2004), for possession of 4.58 grams of methamphetamine. The offense is a severity-level six offense, and respondent has seven criminal-history points. Appellant asked for the presumptive sentence. The district court sentenced respondent to the 71-month presumptive sentence but stayed execution for 30 years and placed respondent on probation with the conditions that respondent successfully complete the Teen Challenge 13-month chemical-dependency-treatment program, abstain from all illegal drugs, obtain a psychological evaluation, and submit a DNA sample. The district court based its downward departure on the interests of justice and respondent’s amenability to treatment. This appeal follows.

ISSUE

Must a person convicted under Minn. Stat. §§ 152.023, subd. 3(b) (2004), and .026 (Supp.2005), who has a previous qualifying controlled-substance conviction, serve a mandatory-minimum sentence?

ANALYSIS

Whether Minn.Stat. §§ 152.023, subd. 3(b) (2004), .026 (Supp.2005), require a mandatory-minimum term of incarceration is a question of statutory construction, which we review de novo. State v. Bluhm, 676 N.W.2d 649, 651 (Minn.2004). The objective in interpreting and construing statutes “is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2004). The first step in this process is to determine whether the statutory language is clear. Id.; Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). “[W]hen the legislature’s intent is clear from plain and unambiguous statutory language, this court does not engage in any further construction and instead looks to the plain meaning of the statutory language.” Bluhm, 676 N.W.2d at 651 (quotation omitted). Ambiguity exists “when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group, 616 N.W.2d at 277 (quotation omitted).

We presume that crimes do not have minimum sentences absent certainty that the legislature intended to authorize a minimum sentence. State v. Ronquist, 600 N.W.2d 444, 446 (Minn.1999). This presumption is based on the belief “that probation is an authorized dispositional alternative.” State v. Childers, 309 N.W.2d 37, 38 (Minn.1981). Likewise, the legislature has limited the use of minimum sentences. Minn.Stat. § 609.11, subd. 1 (2004) (“All commitments to the commissioner of corrections for imprisonment of the defendant are without minimum terms except when the sentence is to life imprisonment as required by law and except as otherwise provided in this chapter.”). The legislature also prefers “intermediate sanctions,” which district courts should order “where practicable.” Minn.Stat. § 609.135, subd. 6 (2004). Intermediate sanctions include “chemical dependency or mental health treatment or counseling.” Minn.Stat. § 609.135, subd. 1(b) (2004).

Drug offenses are one exception to the legislature’s avoidance of mandatory-minimum sentences. Minn.Stat. § 609.11, subd. 5a (2004) (stating that, “whenever a defendant is subject to a mandatory minimum sentence for a felony violation of chapter 152 and is also subject to this section, the minimum sentence imposed under this section shall be consecutive to that imposed under chapter 152”). In addition, “the legislature does not need to 'append language prohibiting waiver to every mandatory statute to ensure that the statute is given effect.’ ” See Bluhm, 676 N.W.2d at 652 (quoting State v. Humes, 581 N.W.2d 317, 319 (Minn.1998) (basing its holding on the canon of statutory construction that “shall” is mandatory)); see also State v. Sheppard, 587 N.W.2d 53, 56 (Minn.App.1998) (concluding that the legislature clearly intended mandatory-minimum sentences), review denied (Minn. Jan. 27,1999).

A conviction of a third-degree controlled-substance crime has a maximum sentence of 20 years. Minn.Stat. § 152.023, subd. 3(a) (2004) (stating that, “[a] person convicted under subdivision 1 or 2 may be sentenced to imprisonment of not more than 20 years” (emphasis added)). But “[i]f the conviction is a subsequent controlled-substance conviction, a person convicted under subdivision 1 or 2 shall be committed to the commissioner of corrections for not less than two years nor more than 30 years.” Id., subd. 3(b) (emphasis added). Another statutory provision states that “[a] defendant convicted and sentenced to a mandatory sentence under sections 152.021 to 152.025 and 152.0262 is not eligible for probation, parole, discharge, or supervised release until that person has served the full term of imprisonment as provided by law.” Minn. Stat. § 152.026 (emphasis added). “Term of imprisonment” means two-thirds of the executed sentence. Minn.Stat. § 244.01, subd. 8 (2004). In considering Minn.Stat. § 152.025, subd. 3(b) (2002), which is similar to section 152.023, subdivision 3(b), the supreme court held that “section 152.025 clearly mandates the minimum sentence to be served and section 152.026 specifically excludes the consideration of probation until the minimum term has actually been served.” Bluhm, 676 N.W.2d at 653.

Minnesota law encourages rehabilitative sentences for first-, second-, and third-degree controlled-substance crimes:

If a person is convicted under section 152.021, 152.022, 152.023, or 152.0262, and the Sentencing Guidelines grid calls for a presumptive prison sentence for the offense, the court may stay imposition or execution of the sentence only as provided in this section. The sentence may be stayed based on amenability to probation only if the offender presents adequate evidence to the court that the offender has been accepted by, and can respond to, a treatment program that has been approved by the commissioner of human services. The court may impose a sentence that is a mitigated dis-positional departure on any other ground only if the court includes as a condition of probation incarceration in a local jail or workhouse.

Minn.Stat. § 152.152 (Supp.2005). Here, the three significant statutory sections— 152.023, 152.026, and 152.152 — were enacted together. 1989 Minn. Laws ch. 290, art. 3, §§ 10, 13, 20, at 1598-99, 1601, 1603-04.

In considering these statutes, we give effect to the legislature’s intent. Minn. Stat. § 645.16. In order to carry out the legislature’s intent, we are required to give effect to all three statutory sections. Id. It is already established that section 152.026 and a statute similar to section 152.023 are unambiguous. Bluhm, 676 N.W.2d at 653. Similarly, section 152.152 is written clearly to apply to drug offenses that carry a presumptive sentence under the guidelines. It does not purport to apply to mandatory-minimum sentences.

The legislature enacted section 152.152 to be the sole method of staying execution for controlled-substance crimes. But section 152.026 makes an exception for mandatory sentences that may not be reduced by probation. Similarly, conviction of a controlled-substance crime carries a permissive statutory penalty for first-time offenders but a mandatory-minimum sentence for repeat offenders. Minn.Stat. § 152.023, subds. 3(a), (b). In giving effect to conflicting statutes, “the special provision shall prevail and shall be construed as an exception to the general provision.” Minn.Stat. § 645.26, subd. 1 (2004). Therefore, the mandatory sentences for repeat controlled-substance offenders in sections 152.026 and 152.023, subdivision 3(b), must prevail over the provision for departures generally in section 152.152.

To ensure the effectiveness of all three statutory sections, we conclude that section 152.152 applies in two situations: first-time controlled-substance offenders and repeat offenders who have served their term of imprisonment. Sections 152.023 and 152.026 require repeat offenders to serve a minimum prison sentence. Because respondent’s sentence is for a subsequent controlled-substance offense, he must serve a term of imprisonment of not less than two years. We therefore remand for resentencing pursuant to these mandatory-minimum statutory provisions.

DECISION

Although Minn.Stat. § 152.152 (Supp. 2005) allows a district court to stay execution of a sentence for a controlled-substance crime when the defendant is amenable to probation, respondent’s sentence cannot be stayed because he is a repeat offender convicted of a third-degree controlled-substance crime. Under the terms of Minn.Stat. §§ 152.023, subd. 3(b) (2004), and .026 (Supp.2005), the district court must sentence respondent to an executed prison term of not less than two years.

Reversed and remanded.

      . Minn.Stat. § 152.025, subd. 3(b) (2002), states that "[i]f the conviction is a subsequent controlled substance conviction, a person convicted under subdivision 1 or 2 shall be committed to the commissioner of corrections or to a local correctional authority for not less than six months nor more than ten years.” (Emphasis added.)


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2007 SD 16
    Anna FAIR, Claimant and Appellee, v. NASH FINCH COMPANY, Employer and Appellant, and Royal and Sun Alliance, Insurer and Appellant.
    Nos. 24073, 24076.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2006.
    Decided Feb. 14, 2007.

      James D. Leach, Rapid City, South Dakota, Attorney for appellee.
    Richard L. Travis, Jason W. Shanks of May & Johnson, P.C., Sioux Falls, South Dakota, Attorneys for appellants.
   MEIERHENRY, Justice.

[¶ 1.] Anna Fair (Fair) claimed workers’ compensation benefits due to an injury she received when she fell leaving the premises of her employer, Family Thrift Center (Family Thrift). The South Dakota Department of Labor (Department) determined that Fair’s injury did not arise out of or in the course of her employment because she had shopped for a short time after completing her shift. The Department denied benefits. Fair appealed to circuit court. The circuit court reversed and remanded to the Department to determine whether Fair was permanently and totally disabled under the odd-lot doctrine. The Department found she was permanently and totally disabled. The circuit court affirmed. Employer appeals. We affirm.

FACTS

[¶ 2.] Seventy-year old Fair had worked at several entry-level positions since graduating from high school in 1950. Her employment with Family Thrift, a convenience store, was as a cashier. Her injury occurred on July 8, 2003. Fair completed her shift at 7:00 p.m. and clocked out at 7:04 p.m. Before leaving the store, Fair purchased the following items: a gallon of milk, 12-pack of pop, meat, Kleenex, bread, and a carton of cigarettes for her daughter. Fair’s machine-stamped check shows that she paid for the groceries at 7:07 p.m. As Fair carried her groceries out of the store, she tripped over a rug near the store’s exit and fell forward, hitting her head and leg on the floor. She described the fall as “the hardest fall I’ve ever fell in all my life.” The night supervisor heard Fair fall and came to her assistance. Fair refused her fellow employee’s offer to summon an ambulance or contact her daughter. Fair subsequently drove herself home although someone followed her to make sure she got home safely. The supervisor completed an accident report and later completed a first report of injury indicating he had been informed of Fair’s injury on July 8, 2003. Fair had injured her ankle in 1993, 1996, 1999, 2001, and 2002, resulting in a recurrent ulcer forming on her ankle. The hard fall aggravated the ulcer, which began to seep yet that evening. Despite her injury, Fair returned to work the next day. After Fair’s ankle injury worsened, she sought medical attention from Dr. Robert Preston in October of 2003. Dr. Preston eventually informed Fair that she would have to find work that allowed her to elevate her leg since her ankle was not healing properly because she stood on her feet all day. Because Family Thrift had no positions that she could perform within Dr. Preston’s restrictions, Fair reluctantly left her job and has since been unemployed.

[¶ 3.] On November 21, 2003, Fair served a petition for hearing on Nash Finch Company and its insurer, Royal Sun Alliance, Inc. (collectively referred to as Employer), pursuant to South Dakota’s Workers’ Compensation Laws. The parties agreed to bifurcate the following issues: 1) whether Fair’s injury arose out of and in the course of her employment; and 2) whether Fair was permanently and totally disabled under the odd-lot doctrine, and if so, the date of onset and medical expenses. As to the first issue, the Department entered an order dismissing Fair’s petition for a hearing on the merits with prejudice because she had failed to establish by a preponderance of the evidence that her injuries arose out of and in the course of her employment. Fair appealed the Department’s decision to the circuit court. The circuit court reversed the Department’s order, entered a judgment in favor of Fair and remanded to the Department for a determination of whether Fair was permanently and totally disabled under the odd-lot doctrine. On remand, the administrative law judge concluded that Fair met her burden of persuasion in establishing that she was permanently and totally disabled under the odd-lot doctrine. Employer filed a notice of appeal to the circuit court. Fair filed a motion to dismiss the appeal because Employer failed to file a statement of issues as required by SDCL 1-26-31.4. The circuit court denied the motion to dismiss and affirmed the Department’s findings. Both sides appeal. Fair appeals raising the following issue:

1. Whether the circuit court erred by not dismissing Employer’s appeal based on the failure to file a statement of issues required by SDCL 1-26-31.4.

[¶ 4.] Employer appeals and raises the following issues:

1. Whether the circuit court erred in determining that Fair’s injuries arose out of and in the course of her employment.
2. Whether the department and circuit court erred in finding that Fair is entitled to permanent-total-disability benefits.

STANDARD OF REVIEW

[¶ 5.] This Court reviews a workers’ compensation case in the same manner as the circuit court. Norton v. Deuel School Dist. # 19-4, 2004 SD 6, ¶ 5, 674 N.W.2d 518, 520. The circuit court’s determination is not presumed correct. Id. “We give great weight to the findings and inferences made by the agency on factual questions.” Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262. We use the clearly erroneous standard when reviewing factual issues, meaning we will reverse only if we are “definitely and firmly convinced a mistake has been committed _” Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228). We review questions of law under the de novo standard of review. Id.

ANALYSIS

1) Fair’s Motion to Dismiss

[¶ 6.] Fair argues that the circuit court erred when it refused to dismiss Employer’s appeal because Employer had not filed a statement of the issues with the notice of appeal as required by SDCL 1-26-31.4. The circuit court determined that SDCL 1-26-31.4 only requires a statement of the issues to be filed, with the notice of appeal, if there are multiple parties involved. SDCL 1-26-31.4 provides as follows:

Within ten days after the filing of the notice of appeal as required by § 1-26-31, the appellant, if there are multiple parties to the appeal, shall file with the clerk of the circuit court a statement of the issues he intends to present on the appeal and shall serve on the other parties a copy of such statement. If any other party wishes to raise additional issues on appeal, he shall file an additional statement of issues on appeal within ten days after service of the appellant’s statement.

The circuit court concluded that the insurer’s and the employer’s interests were identical; therefore, they were not considered “multiple parties” under SDCL 1-26-31.4.

[¶ 7.] We review statutory interpretation de novo as a matter of law. Loesch v. City of Huron, 2006 SD 93, ¶ 3, 723 N.W.2d 694, 695. Our first inquiry is to look at the plain meaning of the language of the rule or statute. We have said:

Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Courts only function is to declare the meaning of the statute as clearly expressed.

In re Yanni, 2005 SD 59, ¶ 8, 697 N.W.2d 394, 397. The determination here centers on what is meant by the statutory term “multiple parties.”

[¶ 8.] The plain meaning of the statutory term “multiple parties” means more than one party. In this case, there was clearly more than one party. The parties included the claimant, the employer and the employer’s insurance company. Even if the employer and insurance company are considered one party because of their identical interests, there are still two parties. Consequently under the plain meaning of the rule, Employer should have filed a statement of issues with the clerk of the circuit court. Nevertheless, this error did not affect the circuit court’s jurisdiction because jurisdiction had been established by Employer’s notice of appeal. See Oberle v. City of Aberdeen, 470 N.W.2d 238, 242 (S.D.1991). We have stated that “[bjecause jurisdiction is conferred by the filing of the notice of appeal, it would be inconsistent to require that, even if the notice of appeal is filed, the statement of the issues must also be filed to properly invoke jurisdiction.” Id. (noting that the circuit court may suspend the requirement that a statement of issues be filed or extend the time period for such filing). Accordingly, although the circuit court may have used the wrong rationale, failing to dismiss the Employer’s appeal was not error. As a result, we will address the issues raised by Employer.

2) Whether Fair’s injuries arose out of and in the course of her employment

[¶ 9.] Employer argues that the circuit court erred in concluding that Fair’s injuries arose out of and in the course of her employment. Because the facts are not in dispute, the resolution of this issue is a question of law which we review de novo. Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 20, 607 N.W.2d 596, 603. A claimant who wishes to recover under South Dakota’s Workers’ Compensation Laws “must prove by a preponderance of the evidence that [s]he sustained an injury ‘arising out of and in the course of the employment.’ ” Bender v. Dakota Resorts Management Group, Inc., 2005 SD 81, ¶ 7, 700 N.W.2d 739, 742 (quoting SDCL 62-1-1 — (7)) (additional citations omitted). “Both factors of the analysis, ‘arising out of employment’ and ‘in the course of employment,’ must be present in all claims for workers’ compensation.” Id. ¶ 9. The interplay of these factors may allow the strength of one factor to make up for the deficiencies in strength of the other. Id. (quoting Mudlin v. Hills Materials Co., 2005 SD 64, ¶ 9, 698 N.W.2d 67, 71) (quoting 2 Arthur Larson, Larson’s Workers’ Compensation Law, § 29, 29-1 (1999)). These factors are construed liberally so that the application of the workers’ corn-pensation statutes is “not limited solely to the times when the employee is engaged in the work that he was hired to perform.” Id. ¶8. Each of the factors is analyzed independently although “they are part of the general inquiry of whether the injury or condition complained of is connected to the employment.” Id. ¶ 9.

[¶ 10.] “In order for the injury to ‘arise out of the employment, the employee must show that there is a ‘causal connection between the injury and the employment.’ ” Id. ¶ 10 (quoting Mudlin, 2005 SD 64, ¶ 11, 698 N.W.2d at 71).) Although the employment need not be the direct or proximate cause of the injury, the accident must have its “origin in the hazard to which the employment exposed the employee while doing [her] work.” Id. (alteration in original). “The injury ‘arose out of the’ employment if: 1) the employment contributes to causing the injury; 2) the activity is one in which the employee might reasonably engage; or 3) the activity brings about the disability upon which compensation is based.” Id. (quoting Mudlin, 2005 SD 64, ¶ 11, 698 N.W.2d at 71-72).

[¶ 11.] The term “in the course of employment” refers to the time, place, and circumstances of the injury. Id. ¶ 11 (quoting Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D.1979)). An employee is acting “in the course of employment” when an employee is “doing something that is either naturally or incidentally related to his employment or which he is either expressly or impliedly authorized to do by the contract or nature of the employment.” Id. (internal quotations and citations omitted).

[¶ 12.] The Department determined that Fair’s injury did not arise out of or in the course of her employment. The Department reasoned that at the time of her fall, Fair was on a personal errand and was a customer of Family Thrift. Therefore, the Department concluded that her injury did not arise out of her employment because her fall did not result from a hazard to which her employment exposed her. However in reversing the Department, the circuit court, concluded that Fair’s injuries arose out of and in the course of her employment.

[¶ 13.] We have recognized that “ ‘accidental injuries suffered by an employee while leaving the building wherein his actual work is being done [are] generally deemed to have arisen out of and in the course of the employment within the meaning of the workmen’s compensation acts.’ ” Steinberg, 2000 SD 36, ¶ 22, 607 N.W.2d at 603 (quoting Donovan v. Powers, 86 S.D. 245, 193 N.W.2d 796, 799 (S.D.1972)). For example, in Steinberg, we held that an employee’s injuries, sustained when she fell while crossing an icy street on her lunch break, arose out of and in the course of her employment. Id. ¶ 20; see also Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 15, 556 N.W.2d 68, 72 (holding that an employee who fell on the ice while leaving work for a lunch break was injured while in the course of her employment); Howell v. Cardinal Industries, Inc., 497 N.W.2d 709, 712 (S.D.1993) (holding that employee who fell in her employer’s parking lot after completing her shift suffered a compensable injury because crossing the parking lot after work was “naturally and incidentally related to her employment.”). The rationale in Steinberg was based on the fact that the injuries occurred “in an area where [the employee] might reasonably be and at the time when her presence there would normally be expected.” Steinberg, 2000 SD 36, ¶ 22, 607 N.W.2d at 603 (quoting 1 Larson’s Workers’ Compensation Law § 13.01[2][b], at 13-8). We also rejected an analysis which focused on whether the risk was common to the public and concluded that “the better rule is that ‘an employee’s injuries are compensable as long as his employment duties put him in a position that he might not otherwise be in which exposes him to a risk, even though the risk is not greater than that of the general public.’ ” Id. ¶ 25. Similarly, in Howell v. Cardinal Industries, Inc., we held that an employee who fell in her employer’s parking lot after completing her shift was entitled to workers’ compensation benefits. 497 N.W.2d at 712. We noted that crossing her employer’s parking lot after work was “naturally and incidentally related to her employment.” Id. (quoting Bearshield, 278 N.W.2d at 168).

[¶ 14.] Under the rationale of Steinberg and Howell, if Fair had fallen while exiting Family Thrift immediately after completing her shift, her injury clearly would have arisen out of and in the course of her employment. Fair’s injuries occurred at the store’s exit, a place where she might reasonably be, and at a time when her presence would normally be expected, within ten minutes after her shift had ended. However, Employer argues that she lost her status as an employee when she completed her shift and shopped for a few groceries before leaving. Employer argues that Fair was a customer rather than an employee when she fell making her injuries uncompensable. Employer contends that the Department correctly decided this issue and in support cites Zahner v. Pathmark Stores, Inc., a case with similar facts. 321 N.J.Super. 471, 729 A.2d 478 (N.J.Super.Ct.App.Div.1999). In Zahner, the claimant worked as a cashier at a local grocery store. After her four-hour shift ended, she punched out and remained on the premises for approximately fifteen minutes to do some personal shopping for her mother. Id. at 480. While shopping, she fell on a thin layer of water on the tile floor near the fish department. Id. After filing for workers’ compensation for the injuries she had suffered from the fall, she was denied benefits because the incident did not arise out of or in the course of her employment. Id. Claimant appealed and the New Jersey Appellate Court affirmed. Id. The court determined that although claimant’s accident occurred in the course of her employment, the accident did not arise from her employment. Id. at 484. The court held that the claimant’s “personal proclivities” gave rise to the harm she incurred and she therefore did not establish that her injuries arose out of her employment. Id.

[¶ 15.] The facts in Zahner are distinguishable from the facts surrounding Fair’s fall. Unlike the claimant in Zahner, Fair fell after she had completed shopping and while she was leaving the store. See id. at 480. Therefore, Fair’s “personal proclivity” had come to an end. Accordingly, this case is more like Briley v. Farm Fresh, Inc., where after the employee’s shift had ended, she shopped for fifteen minutes and was subsequently injured while leaving the building. 240 Va. 194, 396 S.E.2d 835 (1990). The Virginia Supreme Court concluded that the employee’s injury had arisen in and out of the course of employment. Id. at 837. The court noted that to hold otherwise would mean that the employee would be covered if she had fallen while en route to her car to drive home, but would not be covered when she falls at the same location after making a relatively brief deviation from a direct route to her car. Id. Because the court was required to liberally construe the workers’ compensation statutes, it declined to “permit such a hairsplitting analysis where ... the injury occurs on the employer’s premises after a brief deviation and before the employee departs following completion of work.” Id.

[¶ 16.] Like the employee in Briley, Fair engaged in a brief deviation from the direct route to her car. See id. This Court previously considered whether an employee’s deviation from his work duties resulted in noncompensable injuries in Phillips v. John Morrell & Co., where we noted that when an employee engages in minor acts of horseplay it does not “automatically constitute departures from employment, but may here, as in other fields, be found insubstantial.” 484 N.W.2d 527, 530 (S.D.1992) (quoting 1A Larson’s Workers’ Compensation Laws § 23.00 (1990)); see also Rohlck v. J & L Rainbow, Inc., 1996 SD 115, ¶ 19, 553 N.W.2d 521, 526 (stating that “[w]orkers’ compensation statutes ‘do not limit [their] application to the periods during which an employee is actually engaged in the work that he is hired to perform.’ ”). Thus, the mere fact that an employee deviates from her work does not preclude a finding that her injuries are compensable. Employer argues that compensating Fair for her injuries would make employers liable for all incidents related to personal shopping. On the other hand, it is equally problematic to make all post-shift accidents non-compensable. Accordingly, we adopt Professor Larson’s approach which strikes a balance between these two opposing positions. Under Larson’s approach, to determine whether an employee has suffered a compensable injury, the inquiry is two-part: 1) whether the employee was injured during a “reasonable period” after or before working hours; and 2) whether the employee was engaged in activities necessary or reasonably incidental to her work. 2 Larson’s Workers’ Compensation Laws § 21.06[l][a], 21-26 (2006). Larson defines “incidental” as “usual and reasonable both as to the needs to be satisfied and as to the means used to satisfy them.” 2 Larson’s Workers’ Compensation Laws § 21.08[2], 21-46 (2006). Under Larson’s approach when an employee spends a “substantial amount of time” before leaving work engaged in unmistakably personal pursuits, the interlude is not within the scope of employment. 2 Larson’s Workers’ Compensation Laws § 21.06[l][a], 21-26 (2006).

[¶ 17.] The Department concluded that approximately ten minutes had elapsed between the time Fair completed her shift and the time she fell. This can fairly be characterized as “a reasonable period after working hours.” Cf. Haagensen v. Wyoming Workers’ Compensation Division, 949 P.2d 865 (Wyo.1997) (denying workers’ compensation to claimant who spent two and one half hours after work talking to coworkers and was subsequently injured while leaving the store). Therefore, we next consider whether her activities were necessarily or reasonably incidental to her work. Fair was injured while she was exiting Family Thrift after a brief deviation from her usual direct route to her vehicle. While it was reasonable to expect employees to exit the premises after work, it was also reasonable in this case to expect Fair to engage in personal shopping after her shift had ended. Family Thrift had a policy that allowed employees to shop during breaks, but if employees purchased items during their break time, they were required to take the items to their car. Consequently, it was reasonable and more practical for Fair to wait until the end of her shift to purchase groceries in order to avoid the groceries sitting in the car over an extended period of time. See Briley, 396 S.E.2d at 837 (noting that it is reasonable to expect employees of a grocery store to purchase merchandise after work). Thus, under the facts of this case, Fair’s exit after personal shopping can fairly be characterized as necessarily or reasonably incidental to her work.

[¶ 18.] Also of note is the minimal amount of time of the deviation. Fair was not engaged in a personal pursuit for a “substantial amount of time” before leaving Family Thrift. See 2 Larson’s Workers’ Compensation Laws § 21.06[l][a], 21-26 (2006). Instead, Fair made a brief deviation from her usual route before exiting the store and was injured while exiting the premises within ten minutes after her shift ended. Under the store’s policy, it was reasonable to expect employees to complete their personal shopping after their shift had ended. Furthermore, if Fair had followed her usual route to her car after work and had fallen while leaving the store, her injuries would have been com-pensable. See Steinberg, 2000 SD 36, ¶ 22, 607 N.W.2d at 603; Howell, 497 N.W.2d at 712. Based on our liberal construction of workers’ compensation statutes, the brief amount of time Fair spent shopping and the fact that she was injured while exiting the premises, the trial court did not err when it concluded that Fair’s injuries arose out of and in the course of her employment.

3) Whether Fair is Entitled to Permanent Total Disability Benefits

[¶ 19.] Employer also challenges the Department’s findings that Fair was obviously unemployable and that Fair established that she was permanently and totally disabled under the odd-lot doctrine. “Whether a claimant is entitled to odd-lot disability benefits is a question of fact subject to review under the clearly erroneous standard.” Kassube v. Dakota Logging, 2005 SD 102, ¶ 34, 705 N.W.2d 461, 467. The criterion for permanent disability is described in SDCL 62-4-53:

An employee is permanently totally disabled if the employee’s physical condition, in combination with the employee’s age, training, and experience and the type of work available in the employee’s community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.

The claimant has two avenues to make the required prima facie showing for inclusion in the odd-lot category as recognized by this Court:

First, if the claimant is obviously unemployable, then the burden of production shifts to the employer to show that some suitable employment is actually available in claimant’s community for persons with claimant’s limitations. Obvious un-employability may be shown by: (1) showing that his physical condition, coupled with his education, training, and age make it obvious that he is in the odd-lot total disability category, or (2) persuading the trier of fact that he is in fact in the kind of continuous, severe and debilitating pain which he claims. Second, if the claimant’s medical impairment is so limited or specialized in nature that he is not obviously unemployable or relegated to the odd-lot category then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has unsuccessfully made reasonable efforts to find work. Under this test, if the claimant is obviously unemployable, he will not bear the burden of proving that he made reasonable efforts to find employment in the competitive market. Likewise, it is only when the claimant produces substantial evidence that he is not employable in the competitive market that the burden shifts to the employer.

Kassube, 2005 SD 102, ¶ 34, 705 N.W.2d at 468 (internal citations and quotations omitted).

[¶ 20.] The facts of each case determine whether there is sufficient evidence to support the Department’s findings that the claimant was permanently and totally disabled under the odd-lot doctrine. See id. ¶ 35. Fair was 72 years old at the time of the April 28, 2005 hearing. After completing high school, her employment history consisted of the following: a grocery store cashier, a night supervisor at a country store, a hostess in a cafeteria, a part-time sales clerk, a maid supervisor, a position doing laundry, and a position making beef jerky. Although Fair had previous problems with her left ankle, the injury she suffered on July 8, 2003, while working as a cashier at Family Thrift, caused her to have permanent work restrictions. Dr. Preston determined that Fair suffered from a stasis ulcer on her left ankle which failed to heal after her fall because she stood on her feet all day at work. Consequently, Dr. Preston took Fair off work until further notice. Dr. Preston eventually concluded that Fair was permanently restricted from working unless she could elevate her leg while working. In his deposition, he stated, “I think perhaps it is not realistic for her to even be up on her feet at all while working.” Therefore Dr. Preston concluded that Fair would not be able to work unless “she is able to sit down and keep her leg elevated.”

[¶ 21.] Fair also presented the testimony of Rick Ostrander (Ostrander), a twenty five year vocational rehabilitation counselor. Ostrander considered Fair’s future employment possibilities in light of the fact that Fair must elevate her leg while working. Based on Ostrander’s past experience with the Rapid City labor market, he could not identify any available employment at Fair’s level that would accommodate her work restrictions. Consequently, Ostrander considered Fair unemployable and testified that Fair’s “working days were over.” However, James Carroll (Carroll), Employer’s vocational expert, disagreed. Carroll testified that “there are accommodations that can be made with people that need to elevate their leg so that they could work in a situation such as I described.” Carroll identified three specific employers with open positions that would accommodate Fair’s need to elevate her leg. However, Ostrander testified that he visited each place of employment Carroll had identified and had concluded that the cramped work spaces would not allow Fair to elevate her leg. Because Carroll had not personally visited any of the proposed job sites to conduct a similar investigation, the Department concluded that Fair had established she would be unable to perform any of the jobs identified by Carroll and that she was “obviously unemployable” and permanently and totally disabled under the odd-lot doctrine.

[¶ 22.] Employer argues that because Fair was employable if she found employment that accommodated her need to elevate her leg, she was not “obviously unemployable.” Therefore, Employer argues that Fair was required to demonstrate the unavailability of suitable employment by showing that she made reasonable efforts to find work. While Carroll testified that there were employers that would accommodate Fair’s need to elevate her leg, Employer failed to refute Ostrander’s testimony that the working conditions at the job sites Carroll identified were too cramped to accommodate Fair’s need to elevate her leg. Therefore, under the clearly erroneous standard and after a careful review of the record, “we are not definitely and firmly convinced a mistake has been made.” Wise v. Brooks Const. Services, 2006 SD 80, ¶33, 721 N.W.2d 461, 473 (internal quotations omitted). The Department’s finding that Fair was “obviously unemployable” was not clearly erroneous.

[¶ 23.] Employer also argues that Fair cannot claim total and permanent disability because she could receive computer training to expand her job opportunities. The Department concluded that even if Fair received some form of computer education, she would be physically unable to perform computer work because she could not elevate her leg while performing such work. In other words, Fair’s lack of computer skills has no bearing on whether or not an employer can accommodate the work restrictions she must follow. After Fair established that she was “obviously unemployable,” the burden of production shifted to Employer to establish that some form of suitable employment was regularly and continuously available to Fair within her community. Kassube, 2005 SD 102, ¶ 34, 705 N.W.2d at 468. As previously stated, Employer could not identify a place of employment that would allow Fair to elevate her leg and work at the same time. Accordingly, Employer failed to meet this burden. Thus, the Department’s finding that Fair was permanently and totally disabled under the odd-lot doctrine was not clearly erroneous.

[¶ 24.] Affirmed.

[¶ 25.] GILBERTSON, Chief Justice, and KONENKAMP, and ZINTER, Justices, concur.

[¶ 26.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 27.] I write specially to point out that the majority opinion is wrong in its analysis of “multiple parties” under SDCL 1-26-31.4 for these reasons:

1) The circuit court found that SDCL 1-26-31.4 only requires a statement of the issues to be filed with the notice of appeal if there are multiple parties involved. The statute provides:

Within ten days after the filing of the notice of appeal as required by 1-26-31, the appellant, if there are multiple parties to the appeal, shall file with the clerk of the circuit court a statement of the issues he intends to present on the appeal and shall serve on the other parties a copy of such statement. If any other party wishes to raise additional issues on appeal, he shall file an additional statement of issues on appeal within ten days after service of the appellant’s statement.

SDCL 1-26-31.4 (emphasis added). The circuit court concluded that the insurer and the employer’s interests were identical; therefore, they were not considered “multiple parties” under SDCL 1-26-31.4. The circuit court was correct.

2) In the context of SDCL 1-26-31.4, the term “multiple parties” means two or more, excluding the appellant. The appellant is not included and cannot be counted because the statute designates when the appellant “shall file a statement of issues.”

3) Furthermore, the appellant cannot be included because the appellant is required to serve “the other parties.” If this statute is interpreted as the majority opinion suggests, there would only be one party to serve in most instances.

4) Therefore, if the employer and insurance company are considered one party, as the majority opinion concedes, because of their identical interest, there are NOT two parties to be served, but one. Supra ¶ 8.

5) Under the majority opinion’s analysis, there would be no reason for the statute in the first place as there are always two parties to an appeal or there is NO appeal. In other words, the majority opinion’s interpretation would require the appellant to always file the statement of issues. The majority opinion’s interpretation essentially omits the phrase “if there are multiple parties to the appeal” from the statute. Under its interpretation, the statute would mean, “the appellant shall [always] file ... a statement of issues .... ” We should not interpret a statute to render part of it meaningless. Peterson v. Burns, 556, 567-68 (citing Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 9, 620 N.W.2d 198, 202).

      . Nash Finch Company owned Family Thrift at the time of Fair’s accident.

      . Employer filed a discretionary appeal from the circuit court’s order with the South Dakota Supreme Court which was denied.

      . The language in SDCL 1-26-31.4 is unique to South Dakota and was codified pursuant to Supreme Court Rule 82-35.
      Section 5-109 of the 1981 Model State Administrative Procedures Act requires a party who wishes to appeal an agency decision to include the following in his petition of review filed with the circuit court clerk: the name and mailing address of the petitioner; the name and mailing address of the agency whose action is at issue; identification of the agency action at issue, together with a duplicate copy, summary, or brief description of the agency action; identification of persons who were parties in any adjudicative proceedings that led to the agency action; facts to demonstrate that the petitioner is entitled to obtain judicial review; the petitioner’s reasons for believing that relief should be granted; and a request for relief, specifying the type and extent of relief requested.

      . Employer cites South Dakota Public Entity Pool for Liability v. Winger, for an analysis of whether an employee’s substantial deviation from employment took him out of the scope of employment. 1997 SD 77, 566 N.W.2d 125. However, in that case we specifically noted that unlike workers’ compensation matters, "we are not bound here to liberally construe coverage” because the employee’s coverage was based in contract. Id. ¶ 8.

      . Activities that have been considered within the scope of employment include: arriving at work early to change clothes and have a cup of coffee or leaving work late because of commuting arrangements. 2 Larson’s Workers' Compensation Law § 21.06[l][a] (2006). In contrast, remaining at the workplace to drink beer and become intoxicated may not be considered within the scope of employment. Id.