This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A15-0985 

In the Matter of the Revocation of the 

Family Child Care License of Jennifer Ball 

Filed July 5, 2016 

Affirmed 

Smith, Tracy M., Judge 

Minnesota Department of Human Services 

File No. 130-1800-31102 

Jennifer Ball, Duluth, Minnesota (pro se relator) 

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Mark C. Rubin, St. Louis County Attorney, Joseph M. Fischer, Assistant County 

Attorney, Duluth, Minnesota (for respondent commissioner of human services) 

 Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Smith, 

Tracy M., Judge. 

U N P U B L I S H E D O P I N I O N 

SMITH, TRACY M., Judge 

Relator Jennifer Ball challenges a decision by respondent commissioner of the 

Minnesota Department of Human Services (the commissioner) to revoke her family 

childcare license, arguing that (1) her due-process rights were violated, (2) her equalprotection rights were violated, (3) there was no evidence to support a finding that she did 
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not grant licensors access to the daycare, and (4) there were no grounds for revoking her 

license. We affirm. 

FACTS 

 In 2008, Ball received a family childcare license that allowed her to operate a 

daycare out of her residence. Beginning shortly after she was licensed, on several 

occasions in 2008 and 2009, Ball failed or refused to grant St. Louis County licensors 

access to the daycare. These violations led to the temporary immediate suspension and 

ultimate revocation of her license in 2009. In 2010, the Department of Human Services 

(DHS) lifted the temporary immediate suspension, rescinded the revocation, and granted 

Ball a two-year conditional license. One of the terms of Ball’s conditional license was to 

follow all applicable Minnesota rules and laws. After Ball requested reconsideration of 

the conditional license, the commissioner affirmed that the cited violations warranted 

conditional status for two years. Ball appealed the conditional license to this court, but 

the appeal was dismissed because she failed to timely serve the issued certiorari writ on 

the commissioner. 

From September 2010 through June 2012, Ball was issued five correction orders 

for the following violations: (1) disclosing private data regarding children in her daycare; 

(2) having a number of electrical and extension cords in the main play area; (3) utilizing a 

substitute care provider without documentation that the substitute had completed required 

training; (4) having inoperable smoke detectors; (5) having clutter within a foot of the 

furnace; and (6) failing to provide documentation that fire drills were performed. 
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In February 2013, the county received a complaint from the mother of two 

children who attended Ball’s daycare from November 2012 through January 2013. The 

mother complained that, while in Ball’s care, the children were denied bathroom facilities 

and, during the winter months, were left outside in a car that was not running for up to an 

hour at a time. The mother also complained that Ball did not have activities for the 

children, that Ball threatened to tell their mother they were liars if the children 

complained to her, that the childcare area was cold, and that the drinking water was 

always warm or hot. The county interviewed the children, who reiterated the complaints 

that their mother had reported. The children also reported that they were left alone and 

unattended for significant amounts of time while Ball watched them through a video 

monitor located upstairs from the childcare area and that Ball would only interact with 

them when she brought food down to them from the upstairs kitchen. 

At 6:00 a.m. on February 13, 2013, two licensors made an unannounced visit to 

Ball’s daycare to investigate the complaint. The licensors testified at the contested case 

hearing that they chose to arrive at 6:00 a.m. because they believed that a child would be 

leaving the daycare at that time and because Ball advertised “24/7” daycare. When the 

licensors arrived, they saw Ball’s mother, who resided with Ball and also helped care for 

the children, driving children away from the daycare. The licensors knocked on the door 

of Ball’s home several times, with no response. When they saw Ball looking out of a 

window of the house, the licensors waved at her, and they believed that Ball saw and 

recognized them. The licensors again knocked on the door, but Ball did not answer. 

After about 20 minutes, the licensors left. 
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The licensors recommended that a temporary immediate suspension order be 

issued because they had been denied access to investigate the complaints and to ensure 

that the daycare was being operated in a manner that protected the health, safety, and 

rights of the children attending Ball’s daycare. On February 14, the commissioner issued 

an order of temporary immediate suspension of Ball’s license. On February 15, the 

licensors returned to the daycare for a scheduled visit with Ball. During that visit, they 

observed that the faucets in the childcare-area bathroom were reversed from the standard 

installation, with hot water on the right and cold water on the left. Ball admitted to 

putting a space heater in the childcare area when the weather was cold. The licensors 

were denied access to the upstairs kitchen and were only allowed to view from a distance 

the video monitor that Ball used to remotely monitor the children. 

After the visit, Ball was issued a correction order for the following violations: 

(1) having the hot and cold handles in the bathroom reversed and not making herself 

available to assist the children in accessing cool drinking water; (2) not offering adequate 

snacks after school and, on occasion, serving food that was undercooked and cold; 

(3) preventing licensors from seeing the food-preparation area to determine how the food 

was prepared, stored, and heated; (4) preventing licensors from seeing the appliances 

where food was prepared to assess sanitation and safety; (5) denying licensors access to 

parts of the residence to determine compliance with licensing standards; (6) offering 

conflicting statements and misleading information during the course of the investigation; 

(7) limiting school-age activities to watching movies and television, limiting outdoor 

activities, and not providing planned or creative activities; (8) lack of proper supervision 
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of children and leaving daycare children unattended on the lower level of the home while 

she was on the upper level; (9) using a space heater in the childcare area while children 

were present and unsupervised; (10) failing to have an operational toilet for daycare 

children to use; (11) threatening children that she would tell their mother they were liars 

if they complained to their mother; and (12) denying licensors access to the kitchen area 

of the family home. Although the orders required deadlines by which the corrections 

were to occur, there is nothing in the record suggesting that any evidence of corrective 

action was presented. After Ball requested reconsideration of the correction order, the 

commissioner affirmed all of the above violations but one. The space-heater violation 

was not affirmed because there was nothing in the license that specifically addressed this 

issue. 

Ball appealed the order of temporary immediate suspension, and a contested case 

hearing was held. The administrative-law judge (ALJ) recommended that the temporary 

immediate suspension order be affirmed. The commissioner subsequently issued a final 

order affirming the temporary immediate suspension of Ball’s license. 

On August 30, 2013, the commissioner issued an order revoking Ball’s license. 

Ball appealed this order, and a contested case hearing was held. The ALJ recommended 

that the order of revocation be affirmed. The commissioner subsequently issued a final 

order affirming the revocation of Ball’s license. 

Ball appeals this order by certiorari. 
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D E C I S I O N 

Administrative-agency decisions are presumed to be correct and “may be reversed 

only when they are arbitrary and capricious, exceed the agency’s jurisdiction or statutory 

authority, are made upon unlawful procedure, reflect an error of law, or are unsupported 

by substantial evidence in view of the entire record.” In re Revocation of the Family 

Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App. 2003); see Minn. Stat. 

§ 14.69 (2014) (also providing for reversal or modification if decision is in violation of 

constitutional provisions). “This court must defer to the agency’s fact-finding process 

and be careful not to substitute its findings for those of the agency.” Burke, 666 N.W.2d 

at 726. We will not retry facts or make credibility determinations. In re Appeal of 

Rocheleau, 686 N.W.2d 882, 891 (Minn. App. 2004), review denied (Minn. Dec. 22, 

2004); see also Vargas v. Nw. Area Found., 673 N.W.2d 200, 205 (Minn. App. 2004) 

(stating that, when reviewing an agency’s decision, “appellate courts must defer to the 

commissioner’s ability to weigh conflicting evidence”), review denied (Minn. Mar. 30, 

2004). This court is not bound by the agency’s ruling on a matter of law. Burke, 666 

N.W.2d at 726. We review an agency’s choice of sanction for an abuse of discretion. Id. 

I. 

Ball first argues that her due-process rights were violated in 2009 when her license 

was suspended because the 2009 temporary immediate suspension order was not properly 

served on her and she was not given the opportunity to be heard or present evidence. 

Because this argument is not relevant to Ball’s current appeal, we decline to address it. 

Ball is appealing the commissioner’s 2015 final order of revocation, but her argument 
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relates to the commissioner’s 2009 order of temporary immediate suspension. In the 

current proceeding, neither the ALJ nor the commissioner addressed her due-process 

argument, and no evidence was submitted to support it at the contested case hearing. 

Further, we note that Ball had the opportunity to make her due-process argument 

regarding the 2009 violation to this court, but her appeal was dismissed because she 

failed to timely serve the issued certiorari writ on the commissioner. 

II. 

Ball next argues that she “was not treated the same as others in the same 

situation.” The Equal Protection Clauses of the United States and Minnesota 

Constitutions require that similarly situated individuals be treated alike. State v. 

Richmond, 730 N.W.2d 62, 71 (Minn. App. 2007), review denied (Minn. June 19, 2007). 

A threshold question to a disparate-treatment equal-protection claim is whether a 

“claimant [was] treated differently from others who are similarly situated, because the 

equal protection clause does not require the state to treat differently situated people the 

same.” Odunlade v. City of Minneapolis, 823 N.W.2d 638, 647 (Minn. 2012). Appellate 

courts “routinely reject equal-protection claims when a party cannot establish that he or 

she is similarly situated to those whom they contend are being treated differently.” Id.

(quotation omitted). 

Ball submitted evidence showing how the county interacted with other providers, 

but she failed to demonstrate how those providers are similarly situated to her. 

Specifically, she did not show that the other providers had similar extensive histories of 

violations, including repeatedly failing or refusing to allow licensors access to their 
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daycares, or that these providers were ever placed on a conditional license. Therefore, 

we reject Ball’s equal-protection claim. 

III. 

Ball next argues that there is no evidence that she denied licensors access to her 

daycare in 2008-09 or in 2013. Because, as discussed earlier, the 2008-09 violations are 

not at issue in this appeal, we decline to address that portion of Ball’s argument and 

address only the portion relating to the 2013 violation. 

We conclude that there is substantial evidence in the record to support a finding 

that Ball denied licensors access to her daycare in 2013. The two licensors who visited 

Ball’s daycare on February 13, 2013, testified at the contested case hearing that they felt 

that they were denied access to Ball’s daycare that day. They testified that they knocked 

on Ball’s door several times, with no answer; that when they saw Ball looking out of a 

window of the house, they waved at her and believed she saw and recognized them; but 

that when they again knocked on the door there was no answer. Further, the licensors 

testified that, although Ball’s mother came running after them as they were leaving 

stating that they could “come back now,” they still felt as if they were denied access 

because by that point they had already been outside the house for at least 20 minutes and 

Ball’s mother is not the license holder. The licensors’ case notes detailing their 

February 13, 2013 visit were also admitted into evidence at the contested case hearing 

and provided a similar depiction of events. 

We acknowledge that Ball’s mother provided contrary testimony at the contested 

case hearing. For example, she testified that on the morning of February 13, 2013, Ball 
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told her over the phone that she was scared because she thought someone was trying to 

break into her house. She also testified that there is no lighting outside of the house and 

“no way” to see who is knocking at the door. Notwithstanding this testimony, the ALJ 

found that Ball failed to allow access to the licensors, and the commissioner adopted that 

finding. The finding has evidentiary support and is entitled to deference. See In re 

Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 

(Minn. 2001) (noting that appellate courts “defer to an agency’s conclusions regarding 

conflicts in testimony”). 

IV. 

Finally, Ball argues that there were no grounds for revoking her license. The 

commissioner may sanction license holders who do not comply with applicable law or 

rule. Minn. Stat. § 245A.07, subd. 1(a) (2014). When applying sanctions, the 

commissioner must “consider the nature, chronicity, or severity of the violation of law or 

rule and the effect of the violation on the health, safety or rights of the persons served by 

the program.” Id. The law specifically provides that failure to permit access to licensors 

investigating alleged violations “is reasonable cause for the commissioner to . . . revoke 

the license.” Minn. Stat. § 245A.04, subd. 5 (2014). 

We conclude that the commissioner did not abuse her discretion by revoking 

Ball’s license. The commissioner properly considered Ball’s chronic history of violations 

and the effect of those violations—which involved inadequate restroom facilities, lack of 

food safety, and improper supervision of the children, among other things—on the health, 

safety, and rights of the children. In addition, the commissioner properly determined, 
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based on a sufficient record, that Ball denied licensors access to her daycare on 

February 13, 2013, when they came to investigate complaints, and that the denial of 

access itself was grounds for revocation. 

Affirmed.