In the Matter of 2014 Class C License Application of Dr. Mohamed El Deeb. ( 2015 )

This opinion will be unpublished and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
A14-2038
In the Matter of 2014 Class C
License Application
of Dr. Mohamed El Deeb
Filed September 8, 2015
Affirmed
Ross, Judge
Minnesota Racing Commission
Katherine C. Bloomquist, Bloomquist Law Firm, LLC, Chaska, Minnesota (for relator)
Lori Swanson, Attorney General, Stephen D. Melchionne, Assistant Attorneys General,
Joan M. Eichhorst, St. Paul, Minnesota (for respondent Minnesota Racing Commission)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Schellhas,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
The Minnesota Racing Commission denied Dr. Mohamed El Deeb’s applications
for racehorse-owner licenses after conducting an investigation into the quality of El
Deeb’s care for horses. The investigation revealed that El Deeb lied about his criminal
record in his license applications and that he improperly cared for his horses. El Deeb
appeals by writ of certiorari, arguing that the commission violated his right to due process
of law and that the decision was arbitrary and capricious and lacking evidentiary support.
The commission afforded El Deeb the process he was due in the form of reasonable
notice and an opportunity to be heard. And substantial evidence belies El Deeb’s
capriciousness allegation. We therefore affirm.
FACTS
Mohamed El Deeb applied for two Class C racehorse-owner licenses with the
Minnesota Racing Commission in early May 2014. El Deeb and his attorney, Katherine
Bloomquist, inquired about his applications by contacting Tom DiPasquale, the
commission’s executive director. DiPasquale informed El Deeb that the commission was
investigating his applications.
Bloomquist maintained frequent contact with DiPasquale about the investigation
until June 26, 2014. That’s when DiPasquale notified Bloomquist that the commission
had scheduled a July 15 meeting about El Deeb’s applications. This date was chosen, in
part, to accommodate Bloomquist’s vacation plans in early July. The commission gave
Bloomquist its complete investigative file. One week before the scheduled July 15
meeting, Bloomquist requested that it be postponed. The commission arranged with
Bloomquist for the committee meeting to occur on August 14, 2014, to consider El
Deeb’s license applications. Bloomquist and El Deeb were both present at the August 14
meeting. The commission’s compliance-committee chairman began the meeting by
describing its process:
[T]his is a committee meeting, not a public hearing, not an
adversarial proceeding and not a hearing of an appeal from
action that has already been taken. Therefore, there will be no
cross-examination of witnesses or opportunities for rebuttal
testimony unless allowed by the chair. Having said that I
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intend to be fair to both sides and to offer opportunity for
rebuttal if requested.
The committee heard from the commission’s chief steward, Rene Riera. Riera read
the commission’s board of stewards’ recommendation that the commission deny
El Deeb’s applications. The recommendation outlined dishonesty and horse-care
concerns about El Deeb:
On numerous occasions over the years [El Deeb’s]
misdeeds have brought him face-to-face with the stewards
seeking answers for his transgressions. His uncanny ability to
misrepresent and to [mislead] events is recognized by
stewards and other horsemen as well. His falsification of
license applications from 2009 to the present leaves out his
plea of guilty in a case of mistreatment of animals under his
care and failure to adhere to statutory provisions governing
shelter for them in 2008.
Riera also identified other concerns. He explained that a certificate of veterinary
inspection falsely indicated that a horse was owned by El Deeb’s wife when it was
actually owned by El Deeb. Riera and another steward, Thomas Davis, told the
committee that in 2013 El Deeb had no proof of workers’ compensation insurance for his
employees. A third steward, David Hooper, offered evidence to the committee that
El Deeb had been active as a horse owner for the previous month despite his having no
license.
John Flynn, the commission’s security director, also told the committee about
El Deeb’s failure to obtain workers’ compensation insurance for his employees. Flynn
had investigated this issue in 2013. El Deeb had provided Flynn with copies of his
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insurance policies in September 2013, but when Flynn checked with the insurance carrier,
he discovered that all of the policies had been previously cancelled.
The committee also looked back to El Deeb’s prior license applications. In his
2009 application, El Deeb had been asked, “Have you ever been arrested for or charged
with any crime, including driving violations?” El Deeb responded “no” to this question.
He responded the same in his 2011 and 2014 applications. The committee learned that the
response was false. In August 2008, before El Deeb completed any of these applications,
Wright County had charged El Deeb with two counts of mistreating animals and one
count of equine-shelter violation. El Deeb submitted to the committee an affidavit from
his criminal-defense attorney in that case that also listed these charges. El Deeb entered a
plea of guilty to the shelter-violation charge in August 2009, but his plea was dismissed
in August 2010 under a stay of adjudication.
Buck and Karen Wheeler travelled from Kentucky to speak to the committee about
their experience with El Deeb’s horses. The Wheelers had filed a complaint with the
commission after years of interaction with El Deeb. The Wheelers had received from
El Deeb mares that had not been properly sutured after giving birth, and a couple had
staph infections. The Wheelers strongly considered not returning at least one mare to
El Deeb because of the poor condition she was in when they received her from him.
The committee heard from Dr. Lynn Hovda, the commission’s chief veterinarian.
She reviewed 36 photographs that Mr. Wheeler sent to the commission with his
complaint. Dr. Hovda found the conditions for the horses at El Deeb’s farm “disturbing”
and said that they showed “neglect and poor management.” She also concluded that
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El Deeb’s horses suffered from multiple ailments. In addition to her photographic review,
Dr. Hovda told the committee about her own experience conducting pre-race inspections
of El Deeb’s horses: “[W]e had reached the point with Dr. El Deeb and his horses that we
no longer went to his barn to do pre-race inspections, just one of us, we took two. . . .
[W]e had two veterinarians there primarily to protect ourselves, make sure that
everything was going the way it was.”
John Kilgannon appeared at the hearing on his own initiative and asked to address
the committee. Kilgannon described his observations when he examined a horse for sale
on El Deeb’s farm in early 2014. He said that the horses had no food, that they were
standing on concrete, and that their watering buckets were frozen, containing only solid
ice. He described the horses’ conditions as “living in hell” and “atrocious.”
Animal Humane Society agent Keith Streff addressed the committee. He had
investigated El Deeb and submitted a report. Streff has known El Deeb for years and had
“received many complaints . . . from many different individuals, investigators,
employees, passer-by’s [sic], neighbors, elected officials, commissioners and the like.”
Based on his investigation, Streff concluded that El Deeb’s practices constitute “long
obvious systematic negligence that results in potential pain, suffering and subsequent
death of horses.” He noted specifically in his report a fire that had occurred on El Deeb’s
farm, killing 18 horses.
Dr. Christy Klatt spoke to the committee. She is a veterinarian with the
commission. She told the committee about having to disqualify one of El Deeb’s horses
on the day of a race in 2013 because the horse had a tendon injury. Although the injury
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should have been allowed months to heal, El Deeb scheduled a workout for the horse at
the track after only one week. Dr. Klatt examined the horse before its scheduled workout
and concluded that the injury had worsened. She disqualified another of El Deeb’s horses
that same summer because it had shin splints. Referring to El Deeb, Dr. Klatt stated, “[I]n
my ten seasons as a commissioner veterinarian, I’ve never seen another trainer who
would even have thought to race these two horses in this condition. I mean, either one of
these could have led to catastrophic injuries during a race.”
Sean Corrigan has worked as the director of security for emergency medical
services at Canterbury Park for 20 years. He ensures that horsemen provide appropriate
documents for their horses to show that they are in good health. He told the committee, “I
can tell you that I would be hard pressed right now looking back in the archives to find
someone that is more labor intensive and concerning than Dr. El Deeb.” As the only
person to address the panel from Canterbury Park, Corrigan expressed to the panel that
Canterbury Park “fully endorses and supports the commission’s request that Dr.
El Deeb’s racing commission license be denied.”
After the committee heard from these witnesses, DiPasquale invited Bloomquist to
present evidence on El Deeb’s behalf. Although Bloomquist had been given permission
to question all three stewards who addressed the committee, she questioned only Riera.
She examined both Drs. Klatt and Hovda. She also questioned the Wheelers and Streff.
El Deeb also addressed the committee at length. He did not offer any other witnesses on
his behalf, but he did submit the affidavit from his criminal-defense attorney. He also
submitted an affidavit from a veterinarian who opined that, in her experience working
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with El Deeb, his care for his horses often exceeded what she saw in other owners. The
committee offered El Deeb the opportunity to supplement the record after the August 14
meeting.
The commission held its regularly scheduled meeting on August 21, during which
it considered El Deeb’s applications. Bloomquist attended the meeting and spoke for
El Deeb. In September 2014 the commission issued its order denying El Deeb’s license
applications. El Deeb requested that the commission reconsider its decision. The
commission addressed El Deeb’s request at its next regularly scheduled meeting, where
Bloomquist again presented El Deeb’s case. The commission issued amended findings of
fact in October 2014, but it held to its decision denying El Deeb’s applications. El Deeb
now petitions this court for a writ of certiorari.
DECISION
El Deeb urges us to reverse the commission’s denial of his license applications on
two grounds. He contends that he was denied due process of law. And he argues that the
commission’s decision is an arbitrary and capricious determination that is not supported
by substantial evidence. Neither argument has merit.
I
El Deeb was not denied due process of law. To satisfy El Deeb’s due process
rights, the commission was required only to provide reasonable notice of a hearing and a
reasonable opportunity to be heard because “quasi-judicial proceedings do not invoke the
full panoply of procedures required in regular judicial proceedings.” Barton Contracting
Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978); see also In re Class A
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License Appl. of N. Metro Harness, Inc., 711 N.W.2d 129, 136 (Minn. App. 2006),
review denied (Minn. June 20, 2006).
The commission afforded El Deeb notice and a reasonable opportunity to be
heard. Through his attorney, El Deeb was in regular communication with the commission
about the compliance-committee meeting. The commission rescheduled the meeting to
accommodate attorney Bloomquist’s personal calendar. The commission provided
El Deeb formal, written notice of its committee meeting and the grounds for the board of
stewards’ recommendation to deny his applications. The committee gave El Deeb the
opportunity to speak and present his case at the committee meeting and again at the
commission’s September and October 2014 regularly scheduled meetings. He availed
himself of each opportunity. El Deeb claims that he was not assigned sufficient time to
present his case at the committee meeting, but the record belies the claim. Bloomquist
questioned many of the witnesses who spoke against his applications. The record does
not indicate that she ever requested but was denied the opportunity to question any
witness or present any evidence. The committee invited El Deeb to present any
information during the September meeting, and it also held the record open after the
meeting so that he could provide any additional evidence. El Deeb had ample notice of
the committee meeting and ample opportunity to be heard during and after it.
El Deeb implies a due process violation based on the commission’s allegedly
having made its decision to deny his applications even before completing its investigation
and holding the meetings. He says that his application was “red flagged” by the
commission because of his 2013 workers’ compensation insurance incident. The
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allegation is speculation, devoid of any supporting evidence. And El Deeb offers no legal
support for his premise that being “red-flagged” for scrutiny after a prior violation
implicates his due process rights.
El Deeb also focuses on a circumstance that occurred before the committee
hearing and the denial: the board of stewards’ recommendation of denial. He claims that
he was not afforded reasonable notice or an opportunity to be heard as to the
recommendation. He does not explain why he is entitled to due process in the stewards’
mere recommendation. The commission’s board of stewards can only “make
recommendations to the commission as to the qualifications of all applicants for Class C
licenses.” Minn. R. 7879.0200, subp. 2(D) (2013). The board has no authority to grant or
deny license applications. This authority lies exclusively with the commission. 2015
Minn. Laws ch. 77, art. 4, § 8, at 65 (amending Minn. Stat. § 240.03(2) (2014)). The
board did not make any decision that affected El Deeb’s rights; it made a
recommendation about which the commission gave El Deeb notice and to which he had
the full opportunity to respond before the commission made its decision.
The commission provided El Deeb with reasonable notice and an opportunity to be
heard before it denied his license applications. His due process rights were vindicated.
II
We find baseless El Deeb’s contention that a lack of substantial evidence both
undermines the commission’s denial and renders the denial arbitrary and capricious.
We defer to an administrative agency’s fact finding, and a relator has the burden
of showing that the agency’s decision is not supported by substantial evidence. N. Metro
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Harness, 711 N.W.2d at 137. An agency’s decision is not arbitrary and capricious “so
long as a rational connection between the facts found and the choice made has been
articulated.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624
N.W.2d 264, 277 (Minn. 2001) (quotation omitted). The commission has the discretion to
issue Class C licenses to applicants “qualified for the occupation for which licensing is
sought and [who] will not adversely affect the public health, welfare, and safety or the
integrity of racing in Minnesota.” 2015 Minn. Laws ch. 77, art 4, § 10, at 66 (amending
Minn. Stat. § 240.08, subd. 4 (2014)). The commission denied El Deeb’s license
applications because it found that, based on the record, “continued licensure of El Deeb is
inconsistent with the best interests of racing in Minnesota, poses a threat to the integrity
of racing in Minnesota, and would adversely affect public safety, health and welfare,
most importantly, that of the equine participants.” Based on our standard of review,
deferring to the agency’s fact-finding effort we will uphold the denial unless the evidence
does not rationally support it.
It is difficult to imagine a less compelling assertion of insufficient evidence than
El Deeb’s. The commission received from various sources testimony and documentation
(substantial evidence) that El Deeb represents a threat to the safety and welfare of his
horses and other racing participants. There is no need to recount the evidence again; we
are well satisfied that it provided a rational ground on which the commission could
conclude that El Deeb has a sustained history of deceit on matters relevant to his license
application and of neglect and inhumane care of horses. That he has lied consistently in
multiple applications about having been previously charged with a crime is undeniable.
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This alone would likely lead us to reject his “arbitrary and capricious” argument. That
multiple apparently reliable and knowledgeable witnesses detailed his mistreatment of
horses is also undeniable. This alone, too, would likely lead us to reject his argument.
Considering the record as a whole, we have no difficulty concluding that the evidence
rationally supports the commission’s determination that El Deeb poses a threat to the
integrity of Minnesota horse racing.
Affirmed.
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