author: VANDE WALLE, Chief Justice. KAPSNER, Justice,

text:
    2005 ND 203
    Jerome JANGULA, Plaintiff and Appellee v. Gloria A. JANGULA, Defendant and Appellant.
    No. 20050070.
    Supreme Court of North Dakota.
    Nov. 29, 2005.

      Maury C. Thompson, Bismarck, N.D., for plaintiff and appellee.
    Faron E. Terry, Terry Law Office, Minot, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Gloria Jangula appealed from a South Central Judicial District Court judgment in a divorce action. The district court awarded the marital home to Jerome Jangula. Gloria Jangula contends the marital home should have been awarded to her. We reverse and remand.

I

[¶ 2] Gloria Jangula and Jerome Jan-gula were married on September 21, 2002. Prior to the marriage, the parties entered into a prenuptial agreement. The agreement was entered into voluntarily and neither party has contested the agreement. The parties had no children from this marriage.

[¶ 3] Jerome Jangula was a farmer and business owner when the parties got married. Gloria Jangula was employed part-time at Marshall Field’s and was receiving unemployment benefits. Jerome Jangula brought a substantial amount of real and personal property into the marriage. Jerome Jangula also had debt relating to his farm and business ventures. Gloria Jan-gula brought little property into the marriage and also had debt of her own.

[¶ 4] On December 13, 2002, the parties purchased a home in Bismarck. Because of financial problems and bankruptcy, Gloria Jangula did not join in the home mortgage with Jerome Jangula. Initially, the title to the home was in Jerome Jangu-la’s name only. Jerome Jangula eventually executed a quit claim deed which deeded the home to Jerome Jangula and Gloria Jangula as joint tenants.

[¶ 5] Jerome Jangula testified he provided all the money for the down payment on the home. Gloria Jangula testified she provided some of the down payment but was not able to show the exact amount she provided. The source of the down payment came from Jerome Jangula’s CRP payment and from insurance proceeds from his farm operation. When the parties purchased the home, the down payment money was located in one of the parties’ joint bank accounts. Jerome Jan-gula testified Gloria Jangula did not contribute to the mortgage payments.

[¶ 6] In April 2004, the parties separated. Jerome Jangula left the marital home and served Gloria Jangula with divorce papers. Gloria Jangula continued to live in the home until the divorce decree awarded the home to Jerome Jangula.

[¶ 7] The district court found the parties’ prenuptial agreement governed distribution of the marital home. Therefore, the court awarded the home to Jerome Jangula. The district court highlighted clauses in the prenuptial agreement providing that property acquired before the marriage would remain the property of the party who brought the property into the marriage and any property related to or involved with Jerome Jangula’s business would remain separate property. The district court found the down payment came from Jerome Jangula’s CRP payment and insurance proceeds related to farm equipment. The district court determined the CRP and insurance payments were related to or involved with Jerome Jangula’s business. Therefore, the district court concluded the down payment was not made with marital property and the home was acquired with property related to or involved with Jerome Jangula’s business and was therefore not marital property.

[¶ 8] On appeal, Gloria Jangula argues the district court erred in finding the prenuptial agreement governed distribution of the marital home. Gloria Jangula argues the prenuptial agreement does not control the award of the home and therefore the Ruff-Fischer guidelines must be applied to distribute the home. Gloria Jangula contends application of the Ruff-Fischer guidelines would result in her being awarded the home.

II

[¶ 9] Under the Uniform Premarital Agreement Act in N.D.C.C. § 14-03.1 — 03(l)(c), “the parties to a premarital agreement may contract with respect to the disposition of property upon marital dissolution.” Rhodes v. Rhodes, 2005 ND 38, ¶ 3, 692 N.W.2d 157. “A prenuptial agreement is a contract, and its interpretation is primarily a question of law for the court to decide.” Id. This Court reviews “questions of law de novo on the entire record.” Bladow v. Bladow, 2005 ND 142, ¶ 9, 701 N.W.2d 903. “Contracts are to be interpreted in a-manner that gives effect to the parties’ mutual intent at the time of contracting.” Binek v. Binek, 2004 ND 5, ¶ 13, 673 N.W.2d 594; N.D.C.C. § 9-07-03.

[¶ 10] Paragraph 2(a) of the parties’ prenuptial agreement provides:

The following shall constitute and remain the separate property of the respective parties:
a. Property acquired by a party before the contemplated marriage or property acquired at any time by bequest, devise, descent, or by gift from a person other than the other party to this Agreement; the increase in value to such property whether or not such appreciation is due in whole or in part to the contributions or efforts of the other party to this Agreement; property acquired in exchange for such property, the proceeds of sale thereof, and property acquired with such proceeds or with other separate property;

[¶ 11] Paragraph 4 of the parties’ prenuptial agreement provides:

Any property acquired after marriage, except any property related to or involved with the businesses of HUSBAND (the farm business and Four Star Farm Services, Inc.) shall be considered marital property and shall not be subject to this agreement.

[¶ 12] The money used to make the down payment on the parties’ home came from Jerome Jangula’s CRP payment and from insurance proceeds from his farm operation. Jerome Jangula argues the money for the down payment was separate property he possessed prior to the marriage and was also related to his farm operation. Therefore, Jerome Jangula argues the down payment was separate property under the prenuptial agreement. Further, Jerome Jangula argues that because the down payment money was separate property and was used to purchase the home after the marriage, the trial court properly determined the home was Jerome Jangula’s separate property under the prenuptial agreement and was not part of the marital estate.

[¶ 13] Although the parties each interpret the prenuptial agreement to support their respective positions, we believe subsequent actions are significant in determining the issue. Prior to the parties’ purchase of the home, the money used for the down payment was placed into one of the parties’ joint bank accounts by Jerome Jangula. Once the money was placed into the joint bank account, Gloria Jangula could not only write checks, but she could have withdrawn the money or transferred money from that bank account. Gloria Jan-gula had full legal access to the money. Because the joint account was a multiple party account between Jerome Jangula and Gloria Jangula with right of survivor-ship upon death, had Jerome Jangula died prior to purchasing the home, Gloria Jan-gula would have received any money located in the joint bank account as the surviv- or on the account.

[¶ 14] Once separate property, or property exempt from being included as marital property, is commingled or placed into a joint bank account, the property no longer has any separate identity and therefore becomes marital property. See Vitko v. Vitko, 524 N.W.2d 102, 103 n. 1 (N.D.1994) (agreeing with the court in In re Marriage of Hapaniewski, 107 Ill. App.3d 848, 63 IlL.Dec. 535, 438 N.E.2d 466 (1982), that exempt property becomes marital property once the two are commingled); See also Heley v. Heley, 506 N.W.2d 715, 718 (N.D.1993) (holding premarital assets which have been commingled and no longer have any separate identity should be included in the marital estate). The parties’ prenuptial agreement may have allowed Jerome Jangula to keep the money for the down payment as separate property. However, once the money was placed into the joint account it was no longer separate property and the prenuptial agreement no longer excluded the money from the marital estate. The money became marital property and, therefore, the home was purchased with marital property-

[¶ 15] Furthermore, after the home was purchased in his name alone, Jerome Jangula executed a quit claim deed which deeded the home to himself and Gloria Jangula as joint tenants. This is a significant legal act. Title to joint tenancy property vests immediately in a surviving joint tenant upon the death of the other joint tenant. Cranston v. Winters, 238 N.W.2d 647, 651 (N.D.1976). The property passes to the survivor by right of survivorship and not by will. Id. Jerome Jangula could not convey clear title to the property without Gloria Jangula joining in the conveyance. See Olson v. Fraase, 421 N.W.2d 820, 830 (N.D.1988) (holding a joint tenant may not convey or encumber another joint tenant’s interest in property without the authorization or consent of the co-tenant). This subsequent act destroys the separate identity or ownership of the home in Jerome Jangula, notwithstanding the agreement’s provisions about property acquired after marriage.

[¶ 16] Because the home was purchased with marital property and was placed into joint tenancy ownership, the home must be included in the division of the parties’ property upon divorce. We remand to the trial court so the trial court may apply the Rujf-Fischer guidelines to distribute the home. “The trial court must consider the Rujf-Fischer guidelines to aid in the determination of an equitable distribution of the property.” Moilan v. Moilan, 1999 ND 103, ¶18, 598 N.W.2d 81.

“The parties are entitled to a division of their property under a correct application of the law by the trial court.” Brandner v. Brandner, 2005 ND 111, ¶ 11, 698 N.W.2d 259.

Ill

[¶ 17] The judgment is reversed and remanded to the trial court for further proceedings in accordance with this opinion.

[¶ 18] DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

concurring in the result.

[¶ 19] I concur with the result of the majority opinion. The matter must be returned to the trial court to apply the Ruff-Fischer guidelines to the distribution of the house as part of the equitable division of property. This result is dictated by the terms of the prenuptial agreement itself:

PROPERTY ACQUIRED AFTER MARRIAGE
4. Any property acquired after marriage, except any property related to or involved with the businesses of HUSBAND (the farm business and Four Star Farm Services, Inc.) shall be considered marital property and shall not be subject to this agreement.

[¶ 20] Under paragraph 7 of the agreement, the parties have waived rights to equitable distribution except for property that falls under paragraph 4:

WAIVER OF EQUITABLE DISTRIBUTION
7. Except as otherwise provided in paragraph A- of this Agreement, it is agreed and understood between the parties that each does hereby waive and relinquish whatever right they may acquire to share in the assets of the other as a result of their marriage. Each specifically waives and relinquishes all of their rights to equitable distribution. It is specifically agreed between the parties that in the event of a divorce or annulment there shall be no equitable distribution of any assets held by either as his or her separate property.

(Emphasis added.)

[¶ 21] Under paragraph 4 of the prenuptial agreement, property acquired after the marriage is considered marital property unless the acquired property is related to or involved in the businesses of the husband which are specifically identified in paragraph 4 as “the farm business and Four Star Farm Services, Inc.”

[¶22] The house was acquired after the marriage. Although Jerome Jangula persuasively shows the funds used to purchase the house were related to the farm business, he does not argue the house is related to either of the identified businesses. Paragraph 4 requires that the acquired property itself be related to or involved with the businesses. It is not. Therefore, paragraph 4 determines that the acquired property, the house, “shall be considered marital property and shall not be subject to this agreement.” Inclusion of the house in marital property is only the beginning of the analysis, and the trial court has not determined how the Ruff-Fischer guidelines will impact on its distribution of the house as part of the equitable division of marital property.

[¶ 23] Carol Ronning Kapsner


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2005 SD 110
    In the Matter of the ADOPTION OF H.L.C. and B.A.C.
    No. 23602.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2005.
    Decided Nov. 2, 2005.
    John R. Murphy, Rapid City, South Dakota, Attorney for Father B.C.
    Thomas E. Brady, Karen Paige Hunt, Brady & Plumier, Spearfish, South Dakota, Attorneys for appellees, Adoptive Parents D.S. & C.S.
   SABERS, Justice.

[¶ 1.] Father appeals the orders of the circuit court which terminated his parental rights and permitted the adoption of his two children. Because the court should have declined to exercise jurisdiction over a custody matter, we reverse and vacate.

FACTS

[¶ 2.] The facts and procedural history concerning this appeal are complex. B.A.C. and H.L.C. are children (children). Their mother is K.S. (mother) and their father is B.C. (father). Both of the children were born in Denver, Colorado. Their mother, father, and paternal grandparents reside in Colorado. The children’s maternal grandparents live in Sturgis, South Dakota.

[¶ 3.] The father was convicted of sexual assault on a child and attempt to commit sexual assault in 1995. As a result, he was incarcerated in the Colorado State Penitentiary. The children’s mother has not finished high school, has done odd jobs, and worked as a stripper. She is a drug addict.

[¶ 4.] In 1999, the paternal grandparents petitioned for custody of the two children. The maternal grandparents filed a counter petition. The matter was heard before the district court in Huerfano County, Colorado.

[¶ 5.] The district court noted that there was “a great deal of friction” between the parties. A psychologist who performed a custody evaluation documented that “... both sets of grandparents are angry and resentful of each other.” He believed the grandparents would continue to be “uncooperative to the children’s detriment.”

[¶ 6.] After expressing concerns about the fitness of either set of grandparents to properly raise the children, the district court granted legal and physical custody to the maternal grandparents. The court ordered the father to have no contact with the children. The mother was allowed visitation only under the supervision of a licensed mental health professional.

[¶ 7.] The court noted that the maternal grandfather “evinced a hard-nosed attitude when it comes to exchanging the children for visitation.” Absent a voluntary agreement, the court did not believe out-of-state visitation between the parties would work. As a result, the court granted liberal visitation to the paternal grandparents so long ás they traveled to South Dakota to see the children.

[¶ 8.] After the determination of custody, the children moved to Sturgis with their maternal grandparents. The district court’s concerns pertaining to visitation became a reality. The parties were once again in Colorado arguing over the visitation and custody issues. The paternal grandparents made a motion to.hold the maternal grandparents in contempt of the visitation order. The court did not find a willful violation of the visitation order, but did find that visitation required a specific schedule, which it granted.

[¶ 9.] On May 28, 2003, the maternal grandparents filed a petition for adoption in the circuit court of Meade County, South Dakota. As part of this action, they asked the circuit court to waive the father’s consent to adoption and terminate his parental rights. The father responded with a motion to dismiss for lack of subject matter jurisdiction. He argued that Colorado maintained exclusive jurisdiction over any matter affecting visitation or custody.

[¶ 10.] During the adoption action in South Dakota, the issues of visitation and custody were being litigated in Colorado. The maternal grandparents unsuccessfully moved the district court to have the matter transferred to South Dakota. The father, who had been released from prison, filed motions for visitation.

[¶ 11.] The circuit court in South Dakota heard arguments on the issue of subject matter jurisdiction. It acknowledged that there was “at least facially another custody proceeding in Colorado” and it had to contact the Colorado district court to discuss the jurisdictional issue.

[¶ 12.] On February 2, 2004, the district court in Colorado issued an order concerning jurisdiction. The court concluded that under Colorado law it continued to have exclusive jurisdiction in the child custody case because both parents were living in Colorado. As a result, the court stated that it would continue to maintain jurisdiction over the father’s motion for visitation. However, under Colorado law, the court was precluded from exercising jurisdiction over an adoption proceeding unless the children resided in Colorado. Because the children were living in South Dakota, the district court concluded that it could not prevent the South Dakota circuit court from exercising jurisdiction over the issue of adoption. Neither party appealed the Colorado district court’s findings of fact or conclusions of law.

[¶ 13.] On February 6, 2004, the circuit court held a hearing on whether to waive the father’s consent to adoption and terminate his parental rights. The father renewed his motion to dismiss for lack of subject matter jurisdiction. He argued that the Colorado district court had clearly maintained jurisdiction over any issue pertaining to custody and visitation with the children. He further argued that if the circuit court terminated his parental rights, it would terminate his right to custody or visitation and thereby infringe on the Colorado district court’s exclusive jurisdiction.

[¶ 14.] The circuit court noted that the termination of father’s parental rights was “inextricably intertwined with the custody issue.” However, it disagreed with the father’s assertion that terminating his parental rights would also terminate his right to visitation and custody. The court concluded that at a minimum, it had jurisdiction to proceed with the issue of whether to terminate the father’s parental rights. After the hearing, the court terminated the father’s parental rights.

[¶ 15.] A hearing was then held on the adoption issue. The father and the paternal grandparents again raised the issue of jurisdiction and the order of visitation made by the district court. The circuit court ordered that the children be adopted by the maternal grandparents. It also announced its intention to modify the Colorado court’s visitation schedule as it pertained to the paternal grandparents.

[¶ 16.] The maternal grandparents filed the orders terminating parental rights and granting the adoption with the district court in Colorado. The court issued an order to show cause why the proceedings should not be dismissed. The father responded that it was his belief that the South Dakota Supreme Court would reverse the orders of the circuit court. As a consequence, the district court dismissed the father’s motions for visitation without prejudice.

[¶ 17.] Father appeals the orders of the South Dakota circuit court, raising one issue:

Whether the South Dakota trial court erred in exercising subject matter jurisdiction in this case when the issues included custody.

Standard of Review

[¶ 18.] Whether the trial court had subject matter jurisdiction to terminate the father’s parental rights and order an adoption is a question of law. “Accordingly, [that issue is] fully reviewable and we afford no deference to the conclusions reached by the trial court.” In re Yank-ton County Com’n, 2003 SD 109, ¶ 9, 670 N.W.2d 34, 37. Furthermore, to resolve this case we must engage in statutory interpretation. “We review statutory interpretation de novo.” Id. (quoting Maas v. Department of Commerce and Regulation, 2003 SD 48, ¶ 8, 661 N.W.2d 726, 730).

Decision

[¶ 19.] South Dakota law concerning jurisdiction over custody issues is in SDCL chapter 26-5A. Prior to July 1, 2005, that chapter was our version of the Uniform Child Custody Jurisdiction Act (UCCJA). Some of the primary goals of the UCCJA included stability in custody litigation, discouraging “jurisdictional competition” and promoting communication between courts toward the goal of resolving disputes in the best interest of the children. Lustig v. Lustig, 560 N.W.2d 239, 242 (S.D.1997) (citing In re M.C.S., 504 N.W.2d 322, 329 (S.D.1993) (Sabers, J., concurring)). Another purpose behind the UCCJA was the prevention of forum shopping. In re M.C.S., 504 N.W.2d at 324. In Lustig, we noted that courts must adhere to the jurisdictional requirements of the UCCJA and the prohibitions of the Parental Kidnapping Prevention Act (PKPA). 560 N.W.2d at 242.

[¶ 20.]In the findings of facts and conclusions of law, the trial court held that it had subject matter jurisdiction to terminate the father’s parental rights and order an adoption of the children. However, the trial court and all of the parties recognized that there was a simultaneous action involving custody and visitation pending in Colorado. SDCL 26-5A-6 dealt with simultaneous custody proceedings in other states. It provided in part:

A court of this state may not exercise its jurisdiction under this chapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons!.]

SDCL 26-5A-6. Pursuant to the statute, the issue is whether the trial court had subject matter jurisdiction, and whether it is permitted by statute to exercise its jurisdiction.

[¶ 21.] Once the trial court determined that there was another custody proceeding in Colorado, it should have declined to exercise jurisdiction unless Colorado was not “exercising jurisdiction substantially in conformity” with the UCCJA, or it had stayed the proceeding. SDCL 26-5A-6. Colorado has adopted the UCCJEA, the revised version of the UCCJA. Thus, at the time the petition for adoption was filed, Colorado was exercising jurisdiction “substantially in conformity” with the UCCJA.

[¶ 22.] On February 2, 2004, the Colorado court issued its order concerning jurisdiction. The order unequivocally said that the court continued to have jurisdiction over custody and visitation issues. In addition, the court noted that it “shall continue to maintain jurisdiction concerning” the father’s motion for visitation. The order did not stay the custody or visitation proceedings. Although Colorado law would have permitted the district court to transfer the custody matter to South Dakota, the Colorado court denied the maternal grandparent’s motion to transfer. As a result, the South Dakota circuit court erred when it exercised jurisdiction over the issues in this case.

[¶ 23.] The maternal grandparents focus most of their argument on the fact that Colorado did not have jurisdiction to order an adoption of the children. South Dakota, on the other hand, did have jurisdiction to order an adoption simply because the children resided in Sturgis. While their argument may have superficial appeal, the only way the circuit court could order the adoption was if the father’s parental rights were terminated. This could not be done without jurisdiction.

[¶ 24.] In the case of In re M.C.S., we held that termination of parental rights is a custody proceeding under the UCCJA. 504 N.W.2d at 326. We stated, “once [ ] it is determined that jurisdiction exists ... then the court should determine whether jurisdiction should be exercised in view of SDCL 26-5A-6[.]” Id. Thus, even though the circuit court had jurisdiction to order the adoption, it should have refused to exercise its jurisdiction pursuant to SDCL 26-5A-6. The termination of the father’s parental rights, which, was a pre-requisite to ordering the adoption, was clearly a custody proceeding. Under SDCL 26-5A-6 and the Colorado court’s order, the Colorado court had continuing jurisdiction over the matter. See Johnson v. Johnson, 477 N.W.2d 603, 605 (S.D.1991) (“... the new state must defer to the continuing jurisdiction of the state that originally decided custody, unless the original state no longer has jurisdiction or has declined to assume jurisdiction.”)

[¶ 25.] The maternal grandparents also argued that if South Dakota would not exercise jurisdiction, the children would never be able to be adopted. As mentioned earlier, South Dakota would have jurisdiction to order an adoption. However, the maternal grandparents must seek to have the father’s parental rights terminated in Colorado, or have Colorado relinquish jurisdiction before an adoption can be ordered. Having done neither, the South Dakota circuit court should have refused to exercise its jurisdiction pursuant to SDCL 26-5A-6. Accordingly, the decision of the circuit court is reversed, and its orders vacated.

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

      . The UCCJA was repealed by the South Dakota Legislature during the 2005 Legislative Session. It was replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). However, during the pen-dency of this action, South Dakota had the UCCJA in effect and Colorado was following the UCCJEA.

      . It is important to note that the same decision would be reached under the PKPA. Under the PKPA, a state retains exclusive, continuing jurisdiction over all matters related to custody and visitation so long as two conditions are met: (1) the state has jurisdiction over the matter under its own laws; and, (2) the child or any of the contestants to the action continue to reside in the issuing state. 28 USC 1738A (d) (cross reference with 28 USC 1738A (c)(1)) (emphasis added).
      The maternal grandparents argue that sub (1) is not met because Colorado does not have jurisdiction over the adoption under its own laws. However, as we mentioned above, termination of parental rights must occur before an adoption can take place. Termination of parental rights is a custody proceeding over which the Colorado court had exclusive and continuing jurisdiction. As to sub (2), the mother, father, and paternal grandparents continue to reside in Colorado.


author: HANSON, Justice.

text:
    Beth Ann HINNEBERG, Appellant, v. BIG STONE COUNTY HOUSING AND REDEVELOPMENT AUTHORITY, Respondent.
    No. A04-435.
    Supreme Court of Minnesota.
    Nov. 23, 2005.

      James A. Lee, Jr., Legal Aid Society of Minneapolis, Minneapolis, MN, for Appellant.
    William J. Watson, Big Stone County Attorney, Ortonville, MN, for Respondent.
    Keith S. Moheban, Alison C. Archer, Leonard, Street and Deinard Professional Association, Minneapolis, MN, for Amici National Association of Protection and Advocacy Systems, Inc., and Home Line.
    Lisa Walker Scott, Housing and Development Law Institute, Washington, D.C., for Amici Housing and Development Law Institute.
    William F. Maher, Washington, D.C., for Amici National Association of Housing and Redevelopment Officials; Minnesota Chapter, National Association of Housing and Redevelopment Officials; and North Central Regional Council, National Association of Housing and Redevelopment Officials.
   OPINION

HANSON, Justice.

Appellant Beth Hinneberg challenges the denial of her request for an accommodation to the residency policy of Respondent Big Stone County Housing and Redevelopment Authority (Big Stone County HRA) to enable Hinneberg to use Big Stone County HRA’s Section 8 housing voucher outside of its housing jurisdiction. Hinneberg claims that her medical conditions require this accommodation and argues that the denial amounts to disability discrimination in violation of the reasonable accommodations provisions of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (2000), the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. § 3604(f)(1), (3) (2000), and the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363A.10 (2004). The court of appeals held that FHAA does not apply to public housing authorities and that, in any event, reasonable accommodation does not require Big Stone County HRA to make an exception to its residency policy for Hinneberg because the residency policy applies equally to disabled and nondisabled applicants and thus it does not deny equal opportunity to Hinneberg. Hinneberg v. Big Stone County Hous. and Redevelopment Auth., No. A04-135, 2004 WL 2986536, at *3 (Minn.App. Dec. 28, 2004). We affirm, though on different grounds. Big Stone County HRA operates a Section 8 housing program funded by the United States Department of Housing and Urban Development (HUD). The Section 8 program offers housing vouchers to qualified applicants to offset monthly rental payments. 42 U.S.C. § 1437f (o) (2000). The goal of the program is to promote economically mixed housing and make affordable housing available to low-income households. 42 U.S.C. § 1437f(a) (2000).

Appellant Beth Hinneberg lived in Hopkins, Minnesota, but planned on moving to Big Stone County, where she grew up and has family. She applied for and received a voucher for Section 8 housing from Big Stone County HRA. Hinneberg looked for housing in Big Stone County for a short period of time, but then reconsidered because of the close proximity she had in Hopkins to an established network of health care providers that treated her disabilities.

A general feature of Section 8 vouchers is that they can be transferred, or “ported,” anywhere within the United States so long as the area has a Section 8 program. 42 U.S.C. § 1437f(r)(l)(A) (2000); 24 C.F.R. § 982.353(b) (2005). But both the federal act creating the program and the regulations adopted by HUD to implement the act authorize individual public housing authorities to restrict portability for a person who, like Hinneberg, was not residing in its jurisdiction at the time the applicant first applied for assistance. 42 U.S.C. § 1437f(r)(l)(B)(i); 24 C.F.R. § 982.353(c)(2)(h). A public housing authority can require the person to first live within its jurisdiction for 12 months before porting its voucher. Id. Consistent with this authorization, Big Stone County HRA adopted the following residency policy regarding portability:

If the head or spouse of the assisted family does not have a legal residence or work in the jurisdiction of the Big Stone County Housing Authority at the time of its application, the family will not have any right to lease a unit outside of the Big Stone County Housing Authority jurisdiction for a 12 month period beginning when the family is first admitted to the program. During this period, the family may only lease a unit located in the jurisdiction of the Big Stone County Authority.

Because Hinneberg lived outside of Big Stone County when she applied for the program, this policy disqualified her from porting her voucher unless she first leased a unit in Big Stone County for 12 months. Hinneberg requested an exception to Big Stone County HRA’s residency policy as a “reasonable accommodation” of her disabilities. Specifically, she argued that “the housing available in the Big Stone County area presents challenges related to accessibility and livability related to [her] health issues and symptoms.” Hinneberg supplied letters from her doctors that documented her disabilities and gave opinions that it was medically necessary for Hinne-berg to continue to live in Hopkins.

Big Stone County HRA denied her request. Hinneberg requested an informal hearing on the matter and, pursuant to HUD regulations, Big Stone County HRA designated a hearing officer from a neighboring county’s HRA to preside. See 24 CFR § 982.555(e)(4)® (2005). The hearing officer’s decision noted the above undisputed facts and concluded that the Big Stone County HRA “acted responsibly and in accordance with the administrative policy of the Big Stone County HRA, as well as the regulations governing the federally funded Housing Choice Voucher program.”

Hinneberg petitioned for a writ of cer-tiorari to the court of appeals, challenging Big Stone County HRA’s decision under the ADA, the FHAA, and the MHRA. Hinneberg, 2004 WL 2986536, at *2. In an unpublished opinion, the court of appeals held (1) that the FHAA does not apply to public housing authorities administering Section 8 housing programs, and (2) even if it did, Big Stone County HRA did not discriminate within the meaning of the ADA, FHAA, or MHRA. Id. at *3, *4-5. We granted Hinneberg’s petition for further review.

Hinneberg also moves to strike portions of the appellate briefs of Big Stone County HRA and amici curiae the National Association of Housing and Redevelopment Officials, et al. (“NAHRO”). Hinneberg essentially objects to statistical information specific to Big Stone County and Hennepin County as being in the nature of evidentiary facts that are not in the administrative record and are not so public as to be facts that the court could judicially notice. We grant the motion to strike because the information is evidentiary in nature and was not presented to the hearing officer or made a part of the administrative record. Accordingly, we have not considered the stricken information in reviewing this case.

I.

The first question is whether the FHAA applies to public housing authorities, such as Big Stone County HRA, administering Section 8 housing programs. The FHAA makes it illegal “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of [that buyer or renter’s] handicap.” 42 U.S.C. § 3604(f)(1). The court of appeals interpreted this language to only apply to entities that sell or rent houses, directly provide housing, or “affect the availability of housing generally.” Hinneberg, 2004 WL 2986536, at *5. The court concluded that “an entity administering rental subsidy vouchers” does not fall under any of these categories and is therefore outside the scope of the FHAA. Id.

But federal rules regulating the administration of Section 8 programs provide to the contrary, stating: “The tenant-based program requires compliance with all equal opportunity requirements imposed by contract or federal law, including the authorities cited at 24 C.F.R. § 5.105(a).” 24 C.F.R. § 982.53(a) (2005). One of the authorities listed is “The Fair Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 C.F.R. part 100 et seq.” 24 C.F.R. § 5.105(a) (2005); see also 24 C.F.R. § 8.4(a) (2005) (prohibiting disability discrimination in “any program or activity that receives Federal financial assistance from” HUD); 24 C.F.R. § 100.204(a) (2005) (same, but specific to public housing authorities administering Section 8 housing voucher programs); 24 C.F.R. § 982.53(b)(1) (requiring that public housing authorities certify to HUD that they will “administer the [Section 8] program in conformity with the Fair Housing Act”). In light of these requirements, we conclude that the broad phrase in the FHAA — “to otherwise make unavailable or deny” a dwelling — makes the FHAA applicable to public housing authorities administering Section 8 housing voucher programs.

II.

The next question is whether Big Stone County HRA violated the ADA and FHAA by refusing to make an exception to its residency policy. A quasi-judicial decision not subject to the Administrative Procedure Act is reviewed on writ of certiorari by reviewing the record to determine “whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992). We review an administrative agency’s interpretation of federal statutes, such as the ADA and FHAA, de novo, as questions of law. St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989).

A. Statutory framework

There are three ways to prove discrimination under the ADA and FHAA: disparate treatment, disparate impact, and refusal to reasonably accommodate. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of the Twp. of Scotch Plains, 284 F.3d 442, 448 n. 3 (3d Cir.2002). Hinneberg does not argue that Big Stone County HRA’s residency policy discriminates against the disabled either in intent or effect (i.e., disparate treatment or disparate impact). The only issue is whether Big Stone County HRA violated the ADA and FHAA under the reasonable accommodations provisions by refusing to modify its residency policy.

Both parties and the court of appeals analyzed Hinneberg’s reasonable accommodations arguments under the ADA and FHAA separately. But the substantive similarities in the relevant language of the acts and the federal precedent interpreting them persuade us that the provisions can be treated as identical for the purpose of this appeal.

The FHAA prohibits discrimination on the basis of disability in the sale or rental of housing. 42 U.S.C. § 3604(f)(1). The antidiscrimination provision was enacted “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601 (2000). One form of discrimination under the FHAA is “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

The scope of title II of the ADA is broader in that it prohibits public entities from discriminating in the provision of services, programs, or activities on the' basis of a person’s disability. 42 U.S.C. § 12132. Like the FHAA, the ADA has a goal of “provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1) (2000). And although title II does not define discrimination, a regulation promulgated pursuant to the act defines one form of discrimination with language that is substantially similar to the reasonable accommodation language in the FHAA: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7) (2005).

The United States courts of appeals that have addressed the issue have concluded that the reasonable accommodations requirements under each act are identical and involve the same analysis. Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565, 573 n. 4 (2d Cir.2003); Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 782-83 (7th Cir.2002); Dadian v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir.2001); Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816 n. 26 (9th Cir.1999). We agree and therefore we will conduct a unitary analysis of Hinneberg’s reasonable accommodations claim under the ADA and FHAA.

B. Hinneberg’s Burden of Proof

In order to prevail on a reasonable accommodations claim, the plaintiff must make a prima facie showing that the accommodation she seeks is reasonable on its face. US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (applying ADA). The burden is on the plaintiff to show “that her requested accommodation is (1) linked to her disability-related needs, (2) necessary to afford her an equal opportunity to enjoy Section 8 benefits and (3) possible to implement.” Huberty v. Washington County Hous. & Redevelopment Auth., 374 F.Supp.2d 768, 773 (D.Minn.2005). Another way to formulate this test is by focusing on three key elements: necessity, equal opportunity, and reasonableness. Ocono-mowoc Residential Programs, Inc., 300 F.3d at 784. If the plaintiff satisfies these requirements, the burden shifts to the defendant to demonstrate undue hardship in the particular circumstances. US Airways, 535 U.S. at 402, 122 S.Ct. 1516.

1. Necessity

Hinneberg submitted as evidence notes from, her doctors giving their opinions that it would be medically advantageous — i.e., necessary — for her to remain in Hopkins because of its proximity to her team of specialists and support groups that have worked with her for years to treat her complex mix of disabilities. At the administrative hearing, Big Stone County HRA briefly argued that there are sufficient medical facilities in Big Stone County to support Hinneberg’s medical needs. But on appeal before this court, Big Stone County HRA does not dispute Hinneberg’s claimed necessity. Therefore, we hold that Hinneberg satisfied her burden of showing that her disability renders it necessary for her to live in Hopkins near her health care providers.

2. Equal Opportunity

The court of appeals focused primarily on the equal opportunity element, holding that Big Stone County HRA’s residency policy did not disadvantage Hinne-berg in comparison to a non-resident, non-disabled applicant. Hinneberg, 2004 WL 2986536, at ⅜3-4. In this context, Hinne-berg takes issue with the court of appeals’ reliance on Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), because, she argues, Alexander was only a disparate impact case, and thus inapposite. We agree with the court of appeals that Alexander is controlling, but disagree with the court of appeals’ conclusion that Big Stone County HRA’s residency policy treats disabled nonresidents the same as nondisabled nonresidents.

In Alexander, Tennessee Medicaid recipients challenged a policy by state Medicaid directors that reduced from 20 to 14 the number of inpatient hospital days that would be covered under the plan. 469 U.S. at 290, 105 S.Ct. 712. The plaintiffs argued that this policy constituted unlawful discrimination in violation of Section 504 of the federal Rehabilitation Act of 1973 which prohibits disability discrimination in programs or activities receiving federal financial assistance. 469 U.S. at 290, 105 S.Ct. 712. The Supreme Court rejected this argument because the same benefit of 14 days of health coverage was “equally accessible to both handicapped and nonhandicapped persons.” Id. at 309, 105 S.Ct. 712.

Although Hinneberg is correct that Alexander was primarily a disparate impact case, the Supreme Court did discuss whether “meaningful access” under the Rehabilitation Act required Tennessee to modify its policy and “single out the handicapped for more than 14 days of coverage.” Id. at 302-03, 105 S.Ct. 712. The Court also treated “meaningful access” and “reasonable accommodations” as being equivalent as applied. Id. at 301, 105 S.Ct. 712. Thus, the holding in Alexander on meaningful access is fully applicable to reasonable accommodations claims made under the ADA and FHAA.

Under Alexander, the first step in an equal opportunity analysis is to determine the relevant benefit. The Supreme Court in Alexander rejected the plaintiffs’ reasonable accommodations argument as “simply unsound” because their argument presumed that the relevant benefit “is the amorphous objective of ‘adequate health care.’ ” Id. at 303, 105 S.Ct. 712. Instead the Court characterized the relevant benefit as. being more specific: “14 days of inpatient coverage.” Id. The Court then applied the equal opportunity element to this relevant benefit holding that because “[t]he 'State has made the same benefit ⅞ * * equally accessible to both handicapped and nonhandicapped persons, the State is not required to assure the handicapped ‘adequate health care’ by providing them with more coverage than the nonhan-dicapped.” Id. at 309, 105 S.Ct. 712. The relevant benefit that Hinneberg seeks is portability of her housing voucher. The issue thus is whether Big Stone County HRA’s residency policy affords equal access to such portability.

Both parties confirmed at oral argument that the residency policy requires physical residency within Big Stone County before an applicant can be admitted to the program and continued residency in the county for 12 months before vouchers become portable. If a nonresident applicant does not establish residency in Big Stone County, she will not be admitted to the program and cannot ever use the Big Stone County HRA voucher elsewhere. As thus interpreted, Hinneberg does not have equal opportunity to enjoy the portability of her voucher because her disability prevents her from moving to Big Stone County to establish residency. A nondisabled, nonresident applicant would theoretically have the ability to move to Big Stone County to establish residency and could thereby obtain both the immediate benefit of the use of the voucher and the ultimate benefit of the portability of the voucher. Thus, Hinneberg’s proposed accommodation is “necessary to afford [her] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

S. Reasonableness

The final element' that Hinneberg must 'establish is reasonableness. The Supreme Court has endorsed the relatively undemanding standard that a plaintiff need only “show that an ‘accommodation’ seems reasonable on its face, i.e. ordinarily or in the run of cases.” US Airways, 535 U.S. at 401-02, 122 S.Ct. 1516. This is akin to merely showing that the accommodation is feasible or plausible for the defendant to implement. Id. The accommodation that the plaintiff in US Airways proposed was reassignment to a less physically demanding mailroom duty after he suffered a back injury at work. Id. at 394, 122 S.Ct. 1516. The Court noted that “normally such a request would be reasonable” because the relevant statute specifically stated that “ ‘reasonable accommodation’ may include ‘reassignment to a vacant position.’ ” Id. at 403, 122 S.Ct. 1516 (citing 42 U.S.C § 12111(9) (2000)).

Similarly, Hinneberg’s request for a policy modification is a type of accommodation that the FHAA and ADA specifically mention. 42 U.S.C. § 3604(f)(3)(B) (“[Discrimination includes * * * a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”); 28 C.F.R. § 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability * * ⅜.”). And it is theoretically possible for Big Stone County HRA to make this exception to its residency policy for Hinneberg. Therefore it could be argued that the reasonableness element of Hinneberg’s burden has been satisfied.

US Airways went on to explain that some circumstances warrant a more demanding showing of reasonableness by the plaintiff. The Supreme Court held that although the plaintiffs proposed accommodation of reassignment to a vacant position would normally be reasonable, the specific facts of the case warranted a higher burden because the accommodation would violate the defendant’s seniority system. Id. at 405-06, 122 S.Ct. 1516. Although the Court explained the special significance of seniority policies — “providing important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment” — it did not provide guidance for future determinations of what other policies might constitute a special circumstance that imposes an increased burden on the plaintiff. Id. at 404,122 S.Ct. 1516.

If Big Stone County HRA’s residency policy is a circumstance that imposes the increased burden on Hinneberg, we would conclude that she did not meet that burden. The Supreme Court gave two examples of how a plaintiff could meet this higher burden. Both examples involve the plaintiff showing that the policy was insignificant under the particular facts of the case, such as where the employer commonly made exceptions to it, or the policy was already so riddled with exceptions that one more would not make a difference. US Airways, 535 U.S. at 405, 122 S.Ct. 1516. Hinneberg has made no such showing here.

Jp. Shift of Burden

We note that the line between the plaintiffs burden to prove reasonableness and the shifting of the burden to the housing authority to prove undue hardship is a fine one that the Court does not clearly delineate. As Justice O’Connor commented in her concurring opinion:

In Part II of its opinion, the Court correctly explains that “a plaintiff/employee (to defeat a defendant/employer’s motion for summary judgment) need only show that an ‘accommodation’ seems reasonable on its face, ie., ordinarily or in the run of cases.” Ante, at 401, 122 S.Ct. 1516. In other words, the plaintiff must show that the method of accommodation the employee seeks is reasonable in the run of cases. See ante, at 402,122 S.Ct. 1516 (quoting Barth v. Gelb, 2 F.3d 1180, 1187 (CADC 1993)). As the Court also correctly explains, “[ojnce the plaintiff has made this showing, the defendant/employer then must show special ... circumstances that demonstrate undue hardship” in the context of the particular employer’s operations. Ante, at 402, 122 S.Ct. 1516. These interpretations give appropriate meaning to both the term “reasonable,” 42 U.S.C. § 12112(b)(5)(A), and the term “undue hardship,” ibid., preventing the concepts from overlapping by making reasonableness a general inquiry and undue hardship a specific inquiry. When the Court turns to applying its interpretation of the Act to seniority systems, however, it seems to blend the two inquiries by suggesting that the plaintiff should have the opportunity to prove that there are special circumstances in the context of that particular séniority system that would cause an exception to the system to be reasonable despite the fact that such exceptions are unreasonable in the run of cases.

Id. at 410-11, 122 S.Ct. 1516.

For purposes of this appeal, we will assume without deciding that Hinneberg has satisfied her burden of proving that her requested accommodation was reasonable because we ultimately conclude that Big Stone County HRA satisfied its burden of proving that the requested accommodation would result in undue hardship.

C. Big Stone County HRA’s Burden of Proof

There are two ways a defendant can satisfy its burden of proving that the requested accommodation would result in undue hardship. The defendant can either show that the proposed accommodation would impose undue financial or administrative burdens or that the accommodation would require “fundamental” or “substantial” modifications to its program. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 410, 412-13, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); see also DeBord v. Bd. of Educ., 126 F.3d 1102, 1106 (8th Cir.1997); 28 C.F.R. § 35.130(b)(7); 24 C.F.R. § 8.33 (2005).

Big Stone County HRA first argues that the proposed accommodation would result in undue hardship because the cost of evaluating the adequacy of currently available programs in Big Stone County to address the specific needs of a disabled applicant would result in a substantial administrative burden and cost. But we conclude that this argument was not sufficiently developed in the record to satisfy Big Stone County HRA’s burden of proof. The record does not disclose the cost of evaluating Hinneberg’s request.

Big Stone County HRA also argues that the proposed accommodation would result in undue hardship because it would fundamentally alter the nature of its Section 8 housing program. Because the exception to the residency policy requested by Hinneberg has the potential of swallowing the policy, and the policy is important to the ability of Big Stone County HRA to administer its program, we agree that Big Stone County HRA has shown that the requested-accommodation would result in undue hardship.

First, we observe that although portability is an important feature of Section 8 vouchers, another important feature of the program is its focus on meeting the needs of residents in each housing authority’s jurisdiction. Congress directed that funding for individual housing agencies be initially distributed “based on the relative needs of different states, areas, and communities, as reflected in data as to population, poverty, housing overcrowding, housing vacancies, amount of substandard housing, and other objectively measurable conditions.” 42 U.S.C. § 1439(d)(1)(A)® (2000). Consistent with the objective that the budgets of local public housing authorities be used to serve local populations, HUD implemented a complex scheme for allocating funds. See 24 C.F.R. §§ 791.401-.407 (2005). Housing authorities “compete” with other authorities in their “allocation area” for funds from a HUD field office with a fixed budget. 24 C.F.R. § 791.404. Although the exact criteria for awarding funding can vary, 24 C.F.R. § 791.406(a), the objective is always to “provide for the equitable distribution of available budget authority, consistent with the relative housing needs of each allocation area.” 24 C.F.R. § 791.404(a).

Thus it is clear that Congress and HUD established a nexus between the budget for a given public housing authority and the demographic characteristics of the population within its jurisdiction. This suggests that a housing authority may legitimately be concerned with its ability to meet the needs of the residents within its jurisdiction. If Hinneberg were able to use a Big Stone County housing voucher in another jurisdiction, the funding available to Big Stone County HRA to provide for resident-eligible applicants would be reduced. Although the portability feature modifies a housing authority’s local preference to a degree, Congress mitigated the effect of portability by specifically allowing housing authorities to impose durational residency requirements like the one at issue here. 42 U.S.C. § 1437f(r)(l)(B)(i); see also 24 C.F.R. § 982.353(c)(2)(h).

In fact, the legislative history of § 1437f(r)(l)(B) shows that Congress intended to authorize housing authorities to restrict access to its funds by nonresidents:

This [portability] system has also led to instances of waiting list shopping where families that reside in areas with long waiting lists, shop the waiting lists in surrounding areas. When they find a shorter list, the family will place their name on the shorter list and upon receiving assistance in this new area will use such assistance in the jurisdiction where the family resides, without ever living in the new area that supplies the assistance. This waiting list shopping has resulted in some small agencies being unable to assist local residents.
Another problem * * * is the effect of the difference in fair market rents between the originating area and the receiving area * * * further undercutting the number of local families the originating agency can serve.

H.R.Rep. No. 102-760, at 90-91 (1992).

Hinneberg counters that the proposed accommodation would create a very limited rule that only requires the proposed accommodation in individual cases where an applicant establishes that her disability prevents her from meeting the residency requirements. But Big Stone County HRA must face the likelihood that the grant of this accommodation to Hinneberg would encourage other similarly situated disabled nonresident applicants to request the same accommodation from the Big Stone County HRA. See DeBord, 126 F.3d at 1106 (recognizing that the cumulative effect that the proposed accommodation would have on the defendant made it unreasonable); Smith & Lee Assocs., Inc. v. City of Taylor, 13 F.3d 920, 931-32 (6th Cir.1993) (noting unreasonableness is determined by the cumulative effect that all similar accommodations would have on the defendant, not just by the effect that the one individual case before the court would have). If granted, such requests could impair Big Stone County HRA’s ability to restrict the portability of its vouchers and, ultimately, could reduce Big Stone County’s ability to serve the needs of its own residents, including those with disabilities.

Hinneberg also argues that portability is “fundamental” to the structure of the program. But the Section 8 funding structure and the legislative history of section 1437f(r)(l)(B) persuade us that Big Stone County HRA’s residency policy is also fundamental to the Section 8 program. In fact, by authorizing housing authorities to condition portability on satisfaction of a residency requirement, it appears that Congress views residency as a more fundamental element of the program. Therefore we conclude that Big Stone County has satisfied its burden of showing the proposed accommodation would result in undue hardship.

Affirmed; motion to strike granted.

      . If the public housing authority does not give prompt notice that it is not bound by the order of the hearing officer, that order becomes the order of the public housing authority. 24 C.F.R. § 982.555(f)(3). An aggrieved applicant may then seek judicial review in one of two ways: (1) obtaining state appellate court review by petitioning for a writ of cer-tiorari in state court under Minn.Stat. § 606.01 (2004) to review a decision of the public housing authority as a quasi-judicial agency decision not subject to the Administrative Procedure Act, Minn.Stat. ch. 14 (2004), see, e.g., Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992), or (2) commencing a discrimination action against the public housing authority in federal court under 42 U.S.C. § 3613(a)(1)(A) (2000) or 42 U.S.C. § 12133 (2000), see, e.g., Huberty v. Washington County Hous. & Redevelopment Auth., 374 F.Supp.2d 768, 772 (D.Minn.2005). Hinneberg chose the former process.

      . Specifically, Hinneberg objects to appendices 1 and 2 of Big Stone County HRA's brief and footnote 9 of NAHRO’s brief, and to the related discussion of the information at pages 7 and 14 of Big Stone County HRA's brief and 4, 14-15, and 18-19 of NAHRO’s brief. Appendix 1 appears to be an e-mail from the director of legal services of the Minneapolis Public Housing Authority describing the Section 8 housing voucher waiting list of the Metropolitan Council HRA, the housing authority that it says serves the area where Hinneberg lives. Appendix 2 is a letter from Big Stone County HRA to its counsel describing its Section 8 waiting list and listing nonresident applicants on the list. NAHRO’s footnote 9 lists statistics related to the Minneapolis Public Housing Authority.

      . The court of appeals did not separately discuss Hinneberg’s claims under the MHRA, noting that it involves the same analysis as under the FHAA. Hinneberg, 2004 WL 2986536 at *4 n. 2. Neither of the parties takes issue with this conclusion or makes separate arguments under the MHRA. Thus we find it unnecessary to decide whether discrimination under the MHRA is the same as discrimination under the ADA or FHAA.

      . While the act does not further define "services, programs, or activities,” its implementing regulations state that "title II applies to anything a public entity does.” 28 C.F.R. § 35, app. A (2005). The parties agree that the ADA applies to public housing authorities administering Section 8 programs.

      . Also, section 504 of the Rehabilitation Act of 1973, now codified at 29 U.S.C. § 794 (2000), and its implementing regulations have been interpreted to encompass reasonable accommodations provisions that are substantively identical to those in the ADA and FHAA. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir.1999); Gilev. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996); Erdman v. City of Fort Atkinson, 84 F.3d 960, 962 (7th Cir. 1996). Therefore case law interpreting reasonable accommodations requirements under any of these acts is instructive for the purposes of this appeal.


author: MINGE, Judge.

text:
    Mark Allen KRAMER, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A04-2506.
    Court of Appeals of Minnesota.
    Dec. 6, 2005.

      Richard L. Swanson, Chaska, MN, for appellant.
    Mike Hatch, Attorney General, Catherine M. Powell, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and SHUMAKER, Judge.
   OPINION

MINGE, Judge.

Appellant challenges revocation of his driver’s license on the ground that the breath test results from the Intoxilyzer 5000 were not entitled to a presumption of accuracy when the machine, without explanation, printed the wrong date. Because the Commissioner of Public Safety established that the normal testing standards critical for accurate determination of alcohol concentration had been met and that appellant’s alcohol concentration exceeded that permitted for drivers of vehicles, appellant had the burden of coming forward with evidence that the date error indicated machine malfunction that affected the validity of the resulting alcohol concentration. Because appellant introduced no such evidence, we affirm.

. FACTS

Appellant Mark Allen Kramer challenges the district court’s revocation of his driver’s license under the Implied Consent Law, Minn.Stat. §§ 169A.50-.53 (2004). Appellant was arrested for DWI on September 6, 2004, and submitted to an Intox-ilyzer 5000 breath test. Deputy Daniel Robert Snow, a Carver County detention deputy and certified Intoxilyzer operator, conducted appellant’s breath test. The In-toxilyzer report showed that appellant’s alcohol concentration was .12, which resulted in his license revocation.

At the implied consent hearing, Snow testified that before he administered the Intoxilyzer test he checked the appellant’s mouth for regurgitation or belching and turned off his radio to prevent interference with the testing equipment, and that the Intoxilyzer performed the appropriate diagnostic checks. The record also indicates that before the test was administered, the arresting officer observed the appellant for 15-20 minutes. Based on two separate readings, using two separate mouth pieces, Snow determined appellant’s alcohol concentration level was .12. Snow testified that, in his opinion, the diagnostic results were within the proper limits and that the Intoxilyzer result was valid and reliable.

Snow further testified that, a week after administering the test, he realized that the date printed on the Intoxilyzer report was incorrect. All other relevant information, however, including the time of the test, was correct. At his supervisor’s direction, Snow prepared a supplemental report stating that the correct test date was September 6, 2004, the date of appellant’s arrest, not September 16, 2004, the date reflected on the report print-out. Appellant did not object when the Intoxilyzer report was admitted into evidence. However, appellant contended that because the commissioner did not establish that the date error did not affect the measuring functions of the Intoxilyzer, the test results were not prima facie reliable and should be rejected. The district court rejected appellant’s argument. This appeal followed.

ISSUE

Was it error for the district court to place the burden on appellant to establish that the wrong date in the printed results from the Intoxilyzer compromised the otherwise admissible results of that machine’s test of appellant’s breath?

ANALYSIS

The material facts of this case are not in dispute. Rather, appellant asserts that the district court erred, as a matter of law, by concluding that the In-toxilyzer report that is the basis for his conviction is prima facie reliable. While a district court’s findings of fact will not be set aside unless clearly erroneous, Schultz v. Comm’r of Pub. Safety, 393 N.W.2d 373, 375 (Minn.App.1986), a reviewing court will not give deference to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Therefore, we will review the district court’s order de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992). Finally, we note that the Implied Consent Law is considered remedial and liberally construed upon review. Fritzke v. Comm’r of Pub. Safety, 373 N.W.2d 649, 650 (Minn.App.1985).

Because proceedings under the Implied Consent Law are civil in nature, the commissioner need only demonstrate that revocation of driving privileges was appropriate by a preponderance of the evidence. Liona v. Comm’r of Pub. Safety, 389 N.W.2d 210, 211 (Minn.App.1986). The courts use a burden-shifting analysis to make determinations under the Implied Consent Law. The commissioner must make a prima facie case that the test is reliable and “that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” State v. Dille, 258 N.W.2d 565, 567 (Minn.1977) (citations omitted); see Tate v. Comm’r of Pub. Safety, 356 N.W.2d 766, 767-68 (Minn.App.1984). If sufficient, the driver must come forward with evidence disputing the validity and trustworthiness of the breath test. Falaas v. Comm’r of Pub. Safety, 388 N.W.2d 40, 42 (MinnApp. 1986). “If the prima facie showing of a test’s reliability is challenged, the judge-must rule upon the admissibility in light of the entire evidence.” Bond v. Comm’r of Pub. Safety, 570 N.W.2d 804, 806 (Minn. App.1997) (quotation omitted).

Prima Facie Requirements

The commissioner meets his burden by demonstrating that a certified Intoxilyzer operator administered the test, and that diagnostic checks showed that the Intoxilyzer machine was in working order and the chemicals used were in proper condition. Zern v. Comm’r of Pub. Safety, 371 N.W.2d 82, 83 (Minn.App.1985); see also State v. Nelson, 399 N.W.2d 629, 632 (Minn.App.1987), review denied (Minn. Apr. 17, 1987); Ahrens v. Comm’r of Pub. Safety, 396 N.W.2d 653, 656 (Minn.App.1986). The certified operator conducts two diagnostic tests to check that the In-toxilyzer is in working condition. First, the operator uses air “blanks” to check for contamination in the room air, and then checks the chemical levels to make sure they meet the calibration standards. “If the two tests give the expected results, this would seem to be almost incontrovertible proof not only that the chemicals are proper but that the instrument is in working order.” Bielejeski v. Comm’r of Pub. Safety, 351 N.W.2d 664, 666 (MinmApp. 1984) (quotation omitted).

In this case, appellant acknowledges that the Intoxilyzer report is from his September 6, 2004, arrest, and did not question Snow’s capabilities as a certified In-toxilyzer operator. Moreover, appellant does not challenge that Snow conducted air-blank checks, or that the chemical levels were within the expected ranges. Therefore, the evidence submitted by respondent establishes a prima facie case under current standards. See Zem, 371 N.W.2d at 83; Bielejeski, 351 N.W.2d at 666. Appellant contends that, because the Intoxilyzer report had the wrong date, the entire test must be rejected as unreliable.

However, appellant confuses respondent’s requirement to present a prima facie case with appellant’s burden to refute that pri-ma facie showing.

Refuting Prima Facie Case

“Once a prima facie showing of trustworthy administration has occurred, it is incumbent upon defendant to suggest a reason why the ... test was untrustworthy.” Tate, 356 N.W.2d at 768 (quotation omitted). Specifically, the driver must present some evidence beyond mere speculation that questions the trustworthiness of the Intoxilyzer report. Bielejeski, 351 N.W.2d at 666. Typically, such an inquiry affects the weight of the report, not its admissibility. Nelson, 399 N.W.2d at 631.

The driver may challenge the sufficiency of the prima facie case in a number of ways. For example, “the defense is free to argue the possibility of contamination or other irregularity in the taking of a blood alcohol sample,” id., or the driver may allege that the Intoxilyzer gave a false reading because of a low chemical level. However, merely alleging that the chemical testing solution was low does not automatically render the test unreliable. Johnson v. Comm’r of Pub. Safety, 374 N.W.2d 577, 579-80 (Minn.App.1985). “Instead, there must be some indication that the low reading would unduly exaggerate the test results.” Ahrens, 396 N.W.2d at 657. Therefore, if the certified Intoxilyzer operator testifies that the machine is testing high, the commissioner’s prima facie case is refuted. Schultz, 393 N.W.2d at 375. If the court finds that the high reading renders the driver’s alcohol concentration under the legal limit, the proper action is to rescind the license revocation. Id.

The driver may also assert that the statutory requirements were not met. In Olson v. Comm’r of Pub. Safety, the driver challenged his license revocation by suggesting that an unauthorized individual took his blood sample for testing. 513 N.W.2d 491, 492 (Minn.App.1994). The driver’s argument rested on language in Minn.Stat. § 169.123, subd. 3 (1992), which provides a list of individuals competent to withdraw blood for testing purposes. Olson, 513 N.W.2d at 493. The court held that, since the driver did not challenge the validity of the testing procedures nor suggest the existence of an improper result, the driver’s license revocation could not be rescinded based simply on the allegation that the wrong person took the sample. Id at 493.

Establishing that some impropriety or irregularity occurred during the observation period which would render the test result invalid is also a proper basis for challenging the test’s reliability. The observation period is recommended by the Bureau of Criminal Apprehension (BCA) as a means to ensure that the Intoxilyzer test results are accurate. Nelson, 399 N.W.2d at 630. The BCA recommends a pre-test observation period of 15-20 minutes to allow for elimination of possible contamination from the mouth cavity. Id. During this time, the driver is not to ingest anything, and if the driver regurgitates or belches, the Intoxilyzer operator should wait an additional 15 minutes before administering the test. Id. However, “[a] slight interruption of the observation period or a less than perfect observation does not invalidate the test unless the driver has ingested or regurgitated a substance that affects the results, and the burden is on the driver to present such evidence.” Falaas, 388 N.W.2d at 42.

If the certified Intoxilyzer operator does not personally conduct the pretest observation period, yet testifies to the test’s reliability, the driver may refute that showing with evidence that the officer who did conduct the observation did so in a faulty manner. Also, if the observing officer is not trained in pre-test observation, and testifies that she did not understand the purpose of the observation period, the commissioner’s prima facie case of reliability is refuted. McGregor v. Comm’r of Pub. Safety, 386 N.W.2d 339, 340-41 (Minn.App.1986).

Thus, there exist myriad ways for the driver to challenge the revocation of his driver’s license under the Implied Consent Law. However, arguing that something might have occurred is mere speculation and insufficient unless supported by additional evidence. Falaas, 388 N.W.2d at 42. This court requires that the driver establish a relationship between the alleged error and the validity of the results.

In this case, appellant does not contend that a faulty observation period, invalid testing procedures, or improper diagnostic checks produced an unreliable Intoxilyzer report. He only observed that the date “September 16, 2004,” instead of “September 6, 2004,” appears at the top of the Intoxilyzer report. Appellant did not present any evidence that such a misprint was an indication that the testing mechanism was not working properly, nor did appellant present evidence controverting Snow’s testimony that in his opinion, as a certified Intoxilyzer operator, the machine was in working order. Appellant simply asserts that the misprinted date is indicative of a larger problem that so undermines the validity and trustworthiness of the Intoxilyzer report as to negate its prima facie status. This is not enough.

DECISION

We conclude that the district court properly determined that respondent presented a prima facie case and that appellant failed to meet his burden to refute such a showing.

Affirmed.