This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-1633

Suzanne Murray,

Relator,

vs.

Commissioner of Human Services,

Respondent.

Filed January 20, 1998

Affirmed; attorney fees denied

Short, Judge

Department of Human Services

License No. 205731

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for relator)

Hubert H. Humphrey, III, Attorney General, Kim Buechel Mesun, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.

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

SHORT, Judge

The Commissioner of Human Services placed Suzanne Murray's day-care license on probation. On writ of certiorari, Murray argues: (1) the Commissioner's decision violated her constitutional right to due process; (2) the order placing her on probation is without record support; and (3) she is entitled to an award of attorney fees under Minn. Stat. § 3.762(a) (1996). We affirm, and deny attorney fees.

D E C I S I O N

An agency decision is presumed to be correct and will be reversed on appeal only when the decision reflects an error of law, when the findings are unsupported by substantial evidence, or when the agency's decision is arbitrary and capricious. See Minn. Stat. § 14.69 (1996) (providing guidelines for judicial review of agency actions for remainder of sentence as support). We defer to the agency's fact-finding process and consider only whether substantial evidence supports the agency's decision. Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 674-75 (Minn. 1990).

I.

One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979). We will uphold a statute unless the challenging party

demonstrates a constitutional infirmity beyond a reasonable doubt. Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn. 1995).

Murray argues the reconsideration process established in Minn. Stat. § 245A.07, subd. 3(b) (1996) violated her due process rights because the statute does not provide for an administrative hearing as part of the probation order review process. However, the probation order does not deprive Murray of her family day-care license. See Humenansky v. Minnesota Bd. of Med. Exam'rs, 525 N.W.2d 559, 566 (Minn. App. 1994) (concluding psychiatrist's protected interest not implicated because license to practice was not immediately at stake in investigatory proceeding), review denied (Minn. Feb. 14, 1995). Although her license has been placed on probation for one year, Murray has a license and provides day-care services in her home.

Even if Murray's property interests were at stake, the process provided adequately protects her interests. The statute provides procedural safeguards in the form of: (1) notice of the allegations leading to the probation order; (2) an opportunity to request reconsideration of the probation order and to submit evidence before a final decision is rendered; and (3) the right to a contested hearing if her day-care provider's license is ultimately suspended or revoked. Under these circumstances, we conclude the Commissioner did not violate Murray's right to procedural due process. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (concluding some form of hearing is required before individual is finally deprived of property interest); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495 (1985) (concluding essential requirement of due process is notice and opportunity to present, either in person or in writing, reasons why proposed action should not be taken).

II.

Murray also argues there is insufficient evidence to support the Commissioner's order placing her on probation. However, an adult employee and a 12-year-old child receiving day-care services stated that Murray: (1) left her 16-year-old son in charge of the day-care children on several occasions; (2) routinely propped the bottles of small infants; and (3) changed diapers on the carpet without sanitizing the area. In addition, Murray admitted she was over capacity on one occasion. Under these circumstances, we conclude the Commissioner's order of probation was based on substantial evidence. See Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977) (concluding "substantial evidence" means relevant evidence as reasonable mind might accept as adequate to support conclusion; more than scintilla of evidence; more than "any evidence"; and "evidence considered in its entirety"); see also Proetz v. Minnesota Bd. of Chiropractic Exam'rs, 382 N.W.2d 527, 535 (Minn. App. 1986) (concluding substantial evidence supported Board's decision).

Murray requests attorney fees pursuant to Minn. Stat. § 15.472. Because we conclude Murray's right to procedural due process was not violated, and the Commissioner's order was supported by substantial evidence, we decline to award fees. See Minn. Stat. § 15.472, subd. (a) (1996) (concluding prevailing party in civil or contested case brought by or against state shall be awarded fees and other expenses upon showing state's position not substantially justified).

Affirmed; attorney fees denied.