This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the Disqualification of

LaTonya W. Johnson


Filed May 9, 2006


Worke, Judge


Minnesota Department of Health

File No. 900329


LaTonya W. Johnson, 648 Asbury Street, St. Paul, MN 55104 (pro se relator)


Mike Hatch, Attorney General, Jocelyn F. Olson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            This is an appeal from a disqualification from positions requiring direct contact with people receiving services from state-licensed facilities, resulting from a previous disqualification and four theft convictions.  Relator argues that the Department of Health (DH) applied the incorrect standard and that she is qualified because she has no felony or gross-misdemeanor convictions.  We affirm.


An appellate court may reverse an administrative decision if it is not supported by substantial evidence or is arbitrary and capricious.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001).  Substantial evidence is “1. [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2. [m]ore than a scintilla of evidence; 3. [m]ore than some evidence; 4. [m]ore than any evidence; and 5. [e]vidence considered in its entirety.”  White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  An agency’s conclusion is arbitrary and capricious if there is no rational connection between the facts and the agency’s decision.  Blue Cross & Blue Shield,624 N.W.2d at 277. 

Relator LaTonya W. Johnson argues that the commissioner used an incorrect standard in processing her application because she was qualified to hold a nursing assistant license.  Minn. Stat. §§ 148.171 to 148.285 (2004) is the Minnesota Nurse Practice Act which addresses licensing for registered nurses and licensed practical nurses.  Minn. Stat. § 148.211, subd. 1.  A nursing assistant is “an individual providing nursing or nursing-related services . . .  but does not include a licensed health professional[.]”  Minn. Stat. § 148.171, subd. 12.  Thus, nursing assistants are not licensed.  Further, this case does not present a licensing issue, but, rather, concerns whether relator is disqualified from providing direct contact because of her criminal background.  

            Relator sought a nursing-assistant training position with the American Red Cross of the St. Paul Area (Red Cross).  Red Cross requested a background study on relator from the Department of Human Services (DHS).  Under Minn. Stat. § 144.057, subd. 1 (2004), Red Cross is required to obtain a background study on individuals working, or applying to work, in positions that require direct contact with people receiving services from facilities licensed by the DHS and the DH.  Background studies review an individual’s record to determine whether that individual is disqualified from providing direct-contact services.  Minn. Stat. § 245C.02, subd. 5 (2004).  Direct contact is “face-to-face care, training, supervision, counseling, consultation, or medication assistance[.]”  Minn. Stat. § 245C.02, subd. 11 (2004).  A nursing assistant provides “nursing or nursing-related services[.]”  Minn. Stat. § 148.171, subd. 12.  Relator was applying for a position that unavoidably requires direct contact; thus, a background study was necessary.  

            Relator next argues that the commissioner erred by not setting aside her disqualification because she has no felony or gross-misdemeanor convictions.  Relator was disqualified based on a 2001 disqualification and four theft convictions.  In 1998, relator pleaded guilty to a theft charge and was adjudicated delinquent[2] after she used her employment position to issue money orders to her cousin and did not receive cash in return.  In 2000, relator pleaded guilty to gross-misdemeanor theft after she shoplifted merchandise.  And in June and July 2002, relator, again, pleaded guilty to theft charges after she shoplifted merchandise.  The commissioner must disqualify an individual when a background study shows that the individual has a conviction of or admission to theft, in violation of Minn. Stat. § 609.52, regardless of whether the conviction or admission is a felony, gross misdemeanor, or misdemeanor.  Minn. Stat. §§  245C.14, subd. 1(a)(1), .15 (2004).  An individual is disqualified for ten years if “(1) less than ten years have passed since the discharge of the sentence imposed, if any, for the offense; and (2) the individual has committed a gross misdemeanor-level violation[.]”  Minn. Stat. § 245C.15, subd. 3.  Relator pleaded guilty to a gross-misdemeanor theft charge in 2000; thus, the commissioner disqualified relator from working in positions that require direct contact.

An individual who has been disqualified from positions requiring direct care may request reconsideration.  Minn. Sat. § 245C.21, subd. 1 (2004).  The commissioner may rescind a disqualification if the commissioner relied on incorrect information to disqualify an individual.  Minn. Stat. § 245C.22, subd. 2. (2004).  The commissioner may also set aside a disqualification if the commissioner finds that the information submitted by the disqualified individual demonstrates that the individual does not pose a risk of harm to persons served by the license holder.  Minn. Stat. § 245C.22, subd. 4(a) (2004).  Relator requested reconsideration because she believed that she did not pose a risk of harm.  In evaluating whether the individual poses a risk of harm, the commissioner must consider eight factors:

(1) the nature, severity, and consequences of the event or events that led to the disqualification;

(2) whether there is more than one disqualifying event;

(3) the age and vulnerability of the victim at the time of the event;

                        (4) the harm suffered by the victim;

                        (5) the similarity between the victim and persons served by        the program;

(6) the time elapsed without a repeat of the same or similar event;

(7) documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event; and (8) any other information relevant to reconsideration.


Minn. Stat. § 245C.22, subd. 4(b).  “[A]ny single factor . . . may be determinative of the commissioner’s decision whether to set aside the individual’s disqualification.”  Minn. Stat. § 245C.22, subd. 3 (2004).  Additionally, the commissioner is required to give “preeminent weight to the safety of each person served by the license holder[.]”  Id. 

Here, the commissioner applied the eight factors to the information relator provided.  Regarding the nature, severity, and consequences of the events leading to disqualification, the commissioner determined that relator’s convictions were “[i]ntentional; overt act; harm likely.”  In considering whether there is more than one disqualifying event, the commissioner determined that relator had a “[p]attern or many; [t]hree or more” disqualifying events.  As to the age and vulnerability of the victims, the commissioner determined that the businesses were “[n]ot very vulnerable.”  Regarding the harm suffered, the commissioner determined that relator caused the businesses financial harm and “short-term damage[.]”  In considering the similarity between the victims and persons served by the program, the commissioner determined that “[s]ome similarity” existed and that:   

The people you wish to provide services for are vulnerable because of cognitive and/or physical impairments.  They rely on their care givers to provide them assistance with their daily living activities.  They trust that their care givers will not steal from them and that they will not neglect them with their needed cares.  Similarly, businesses trust that their consumers and employees will be honest and responsible to not steal from them.  While the victims are different, the harm that can result from theft, dishonesty, and neglect of responsibilities are the same.


Regarding the time elapsed without a repeat of the same or similar event, the commissioner determined that it was recent because the last two offenses occurred in 2002.  As to documentation of successful completion of training or rehabilitation, the commissioner determined that relator received “[n]o treatment and/or training” and that she did “not accept responsibility.” The commissioner stated:     

You do not take responsibility for your actions in these offenses stating that you were in the wrong place at the wrong time.  However, at least one of those police reports submitted specifically asked you if this was your idea and you stated that it was.  You did not submit any documentation of training or rehabilitation pertinent to these events.  Therefore, there is no evidence that you have made positive, enduring changes in your life to suggest that you do not pose a risk of harm to people you would be providing direct contact services.


And relator did not provide any additional information; therefore, the commissioner did not make a determination regarding other relevant information.   

            The commissioner’s decision is not arbitrary or capricious and is supported by substantial evidence.  As a nursing assistant, relator would be in close contact with vulnerable, dependent patients.  Considering relator’s four convictions, the fact that she conceived the idea of committing one of the thefts as a result of stress, and the cavalier attitude reflected in relator’s submission, the evidence supports the commissioner’s determination that relator does not take responsibility for her actions.  Additionally, relator does not explain how patients will not become victims; instead, asserts that patients will not be victimized.  That blanket assumption hardly explains how the patients will be protected.  Similarly, relator was asked to explain how her prior theft acts could be used against patients and how theft could affect their lives.  Relator did not answer that questions and merely concluded that it would not happen.  Further, relator does not comprehend how her past thefts harmed anyone and appears to be indifferent to the harm she caused.  Finally, relator has not engaged in any form of rehabilitation.  Relator claims that she was not required to complete any program and that a weekend in jail rehabilitated her.  It may not be as simple as relator believes, however, considering that she has four convictions.  Thus, the commissioner’s decision was not arbitrary or capricious.


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

[2] For purposes of chapter 245C, a finding of delinquency is considered a conviction.  Minn. Stat. § 245C.08, subd. 4(d) (2004).