This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1534
In the Matter of 2015 Class C License Application of Dr. Mohamed El Deeb.
Filed September 12, 2016 Affirmed; motion denied Smith, Tracy M., Judge
Minnesota Racing Commission
Josh Casper, St. Paul, Minnesota; and Todd Young, Roseville, Minnesota (for relator Dr. Mohamed El Deeb)
Lori Swanson, Attorney General, Joan M. Eichhorst, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Racing Commission)
Considered and decided by Larkin, Presiding Judge; Smith, Tracy M., Judge; and
Klaphake, Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Relator Dr. Mohamed El Deeb challenges respondent Minnesota Racing
Commission’s (MRC) denial of his 2015 application for a Class C racehorse-owner
license. El Deeb argues that (1) the MRC’s decision is not supported by substantial
evidence, (2) the MRC’s decision is arbitrary and capricious because the MRC
considered an outstanding account without a creditor complaint and because the MRC’s
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. decision reflected its will and not its judgment, (3) the MRC deprived him of his rights to
due process and equal protection, and (4) the MRC was statutorily prohibited from
considering El Deeb’s criminal charges for false statements on his prior applications.
The MRC filed a motion to strike three portions of El Deeb’s reply brief. We affirm and
deny the motion to strike.
FACTS
In February 2015, El Deeb applied for a Class C racehorse-owner license from the
MRC. El Deeb’s 2014 Class C license application had been denied due to El Deeb’s
failure to maintain workers’ compensation insurance; failure to disclose animal-
mistreatment and traffic-law-violation charges; horse neglect and death as evidenced by a
Minnesota Animal Humane Society report; a written complaint of animal neglect from an
out-of-state party with substantiating photos; complaints and information regarding
El Deeb’s business practices; and concerns about his competence as an owner and
breeder, financial responsibility, and reputation for honesty. The 2014 denial constituted
prima facie evidence of El Deeb’s unfitness for licensure, placing the burden on El Deeb
to prove his fitness for licensure in 2015. See Minn. R. 7877.0125, subp. 2 (2015).
In March and April 2015, the MRC sent El Deeb four notices, one via certified
mail, one via first-class mail, and two via e-mail, that his 2015 license application would
be on the agenda at an upcoming meeting of the MRC’s Administrative Affairs
Committee (the committee) and a subsequent MRC meeting. El Deeb did not attend
either meeting, and the MRC denied El Deeb’s 2015 license application.
2 In its order denying El Deeb’s 2015 application, the MRC incorporated the basis
for the 2014 license denial as part of the basis for its 2015 decision. The MRC also cited
several new matters: (1) a barn fire at one of El Deeb’s farms in December 2014 in
which ten horses perished, (2) El Deeb’s lender placing force-placed insurance coverage
on El Deeb’s property because his previous policy had been cancelled, and (3) an
outstanding account of more than $38,000 with Prairie Farm Supply. The MRC also
found that it had sent multiple notices to El Deeb via e-mail and mail and that it had
posted meeting notices and agendas referencing his license application at the MRC office
and on the MRC website. The MRC concluded that, due to the 2014 license denial,
El Deeb bore the burden of proving his fitness for licensure and that he failed to meet that
burden.
After the MRC denied his 2015 application, El Deeb e-mailed the MRC’s
executive director claiming that he had not received notice of the meetings concerning his
application “in a timely fashion.” In the same e-mail, El Deeb requested that the MRC
reconsider its decision to deny his 2015 application. The executive director replied that
the MRC placed El Deeb’s request for reconsideration on the agenda for the MRC’s next
regularly scheduled meeting and informed El Deeb of the meeting’s time and location.
El Deeb responded that he would attend if the executive director would “let [him] know”
if he should, and the executive director confirmed that El Deeb should attend the meeting.
At its next meeting, the MRC discussed El Deeb’s request for reconsideration;
El Deeb did not attend. After deliberation, the MRC voted and agreed to give El Deeb an
opportunity to explain why the MRC should reconsider its decision to deny El Deeb’s
3 2015 application. El Deeb’s request was referred to the committee, and the MRC gave
El Deeb notice of the committee meeting scheduled for July 2, 2015.
El Deeb appeared at the committee meeting, and the committee heard from the
executive director and from El Deeb and his witnesses. The executive director
summarized the proceedings that had occurred to date, including the MRC’s order
denying El Deeb’s 2015 application. The executive director informed the committee that
“the burden of proof is on [El Deeb], having once been denied a license, to overcome the
presumption that he does not meet licensing requirements in Minnesota.” El Deeb
offered four exhibits and the testimony of several witnesses, including himself.
El Deeb’s first witness was K.O., a veterinarian. K.O. testified that she goes to
El Deeb’s farms “a couple times a month” and that, on her most recent visit, she observed
that the horses were “in good health” and that “[t]hey had good hay and water in front of
them.” K.O. stated that “[t]here were some things lacking” such as shavings in the stalls
and overdue farrier work. K.O. acknowledged that the horses she most recently saw at
El Deeb’s farm were not race horses. K.O. was also asked about a written statement in
which she had stated that El Deeb’s “farms are both under-staffed and in desperate need
of maintenance.” K.O. tempered this statement by saying that the farms could use
“general repair” and that “[an] extra person at each farm would be beneficial.”
Several other witnesses testified favorably about El Deeb and his treatment of
horses. C.B., a certified hunter-jumper trainer, testified that she has known El Deeb for
approximately ten years and has trained and sold “dozens” of El Deeb’s horses. C.B. has
visited El Deeb’s farms more than a dozen times per year and stated that she has never
4 seen a neglected horse on El Deeb’s farms but agreed that his farms are in need of
maintenance. At the time of the hearing, C.B.’s business relationship with El Deeb was
no longer ongoing because she had closed her horse business. T.B. testified that he has
known El Deeb for 20 years and has been to his farms several times. T.B. stated that he
has never had trouble getting paid by El Deeb and that El Deeb’s horses were “typically
in good care.” L.C., a Class C license holder, testified that he kept horses at El Deeb’s
farm ten years ago. L.C. did not observe any maltreatment and found El Deeb to be
“very friendly and very respectable.”
Another witness, F.M., testified concerning the report of animal neglect at issue in
the denial of El Deeb’s 2014 application. F.M. is a former employee of B.W. B.W. had
received horses from El Deeb and had sent a written complaint to the MRC in 2014 with
photos of the apparently maltreated horses. F.M. testified that he thought the horses
looked “fine.” F.M.’s testimony was consistent with his written submission in which he
stated that one of the horses was “normal and healthy.”
Two witnesses testified about the December 2014 barn fire. C.G., who worked
and lived at the Buffalo farm with R.W., stated that on the night of the barn fire she was
getting ready for bed and noticed the lights flickering in the house and heard a clicking
sound. C.G. woke up R.W., and they noticed the flames as they walked outside to check
a fuse box. R.W. ran toward the barn and told C.G. to call 911.
R.W. testified that he has worked at one of El Deeb’s farms for five years and that
he thought the fire was just “bad luck.” The executive director read R.W. a statement he
had previously given to the Wright County Sherriff’s Office in which he stated that he
5 believed that the cause of the fire “was faulty, old wiring.”1 R.W. then stated that he still
thought the fire started “at that breaker box area.” R.W. also stated that when he first
started working for El Deeb, he noticed that one breaker in the box made a “sharp sound”
when it was turned on but that it “was shut off immediately and hadn’t been touched.”
Additionally, R.W. stated that he and another individual built new stalls in the barn five
to six months before the fire and moved some wiring without assistance from an
electrician. Building permits were not obtained for the project and no inspections were
conducted, aside from an unnamed electrician who looked at the wiring and stated that “it
looked good to him.”
El Deeb was the final witness. The committee asked El Deeb about his
outstanding account with Prairie Farm Supply. El Deeb submitted five years of
transaction history with Prairie Farm Supply and explained that the interest portion of the
bill was “in dispute.” El Deeb stated that he and Prairie Farm Supply’s owner had agreed
to settle the account for $14,000. With respect to the December 2014 fire, El Deeb stated
that he was out of the country when it occurred and that he had no reason to start the fire
because the barn and horses were uninsured. El Deeb explained that his insurance policy
had been cancelled because he had too many horses on his farm and that his lender put
force-placed coverage on the property until he secured a new policy. El Deeb also
explained the workers’ compensation issue and a criminal charge for insufficient animal
1 The record also contains the fire investigation report and postfire photographs. The report concludes that the fire’s cause could not be determined due to the level of destruction. The report and photos were considered by the MRC in its order denying El Deeb’s 2015 license application and in its order denying El Deeb’s request for reconsideration.
6 shelters that figured into the 2014 license denial, but the committee stopped El Deeb
because “[t]hose matters have been adjudicated and they’re in the past” and the focus
needed to be on the “2015 license application and [the MRC’s] action to deny and
[El Deeb’s] request to reconsider.”
El Deeb expressed concern that he had not been allowed adequate time to discuss
the past matters, and El Deeb was informed that he had until the end of the business day
on July 13, 2015 to supplement the record. On July 13, El Deeb e-mailed a 12-page
argument and exhibits 1A-41A to the MRC. On July 14, El Deeb sent additional
documents to the MRC office via courier. The executive director notified El Deeb that
the documents sent on July 14 were not the same as those that had been timely submitted
on July 13 and that one of the MRC commissioners had stated that they should not be
part of the record.
On August 20, the MRC issued an order denying El Deeb’s request for
reconsideration. The MRC found that El Deeb’s witnesses were “in some instances, not
credible and, in other instances, not persuasive in light of the record taken as a whole.”
The MRC discredited R.W.’s testimony that the December 2014 barn fire was “bad luck”
and found K.O.’s written statement that El Deeb’s farms are “under-staffed and in
desperate need of maintenance” to be “more credible and consistent with the record” than
her testimony that “the farms need general maintenance work.” Furthermore, the MRC
found that much of El Deeb’s evidence “was not relevant or material” to his 2015
application. Finally, the MRC found that El Deeb’s July 14 submissions were not part of
the record and, in any event, the materials were not “relevant or material.” The MRC
7 concluded that El Deeb failed to “carry his burden of proof” and denied his request for
reconsideration.
This certiorari appeal follows.
DECISION
We review an agency’s decisions to determine whether the decision is (1) in
violation of constitutional provisions, (2) in excess of the agency’s statutory authority or
jurisdiction, (3) the product of unlawful procedure, (4) affected by an error of law,
(5) unsupported by substantial evidence in the record, or (6) arbitrary and capricious.
Minn. Stat. § 14.69 (2014). We presume the correctness of an agency’s decision and
defer to an agency’s conclusions in its area of expertise. In re Review of 2005 Annual
Automatic Adjustment of Charges for all Elec. & Gas Utils., 768 N.W.2d 112, 119
(Minn. 2009).
I.
El Deeb first contends that the MRC’s decision should be reversed because it is
not supported by substantial evidence.
“The burden of proving that an agency’s decision is not supported by substantial
evidence is on the relator. If the commission engaged in reasoned decisionmaking, this
court will affirm.” In re Class A License Appl. of N. Metro Harness, Inc., 711 N.W.2d
129, 137 (Minn. App. 2006) (citations omitted), review denied (Minn. June 20, 2006).
Substantial evidence is “(1) such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than
some evidence; (4) more than any evidence; or (5) the evidence considered in its
8 entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644
N.W.2d 457, 466 (Minn. 2002).
The MRC 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.” Minn. Stat.
§ 240.08, subd. 4 (Supp. 2015). Before issuing a license, the MRC is obligated to
determine that the applicant’s age, experience, reputation, competence, record of law abidance, and financial responsibility are consistent with the best interests of horse racing, the provisions of Minnesota Statutes, chapter 240, and that licensure will not adversely affect the public health, welfare, and safety within Minnesota.
Minn. R. 7877.0100, subp. 2 (2015).
In its order denying El Deeb’s 2015 application, the MRC concluded that the
evidence before it “overwhelmingly supports the conclusion that El Deeb does not meet
[the] criteria for licensing.” That decision was based on several concerns: (1) the
problems highlighted in the denial of El Deeb’s 2014 license application, (2) the
December 2014 barn fire that resulted in the deaths of several race horses, (3) El Deeb’s
outstanding account with Prairie Farm Supply, and (4) the imposition of force-placed
insurance coverage on El Deeb’s property by his lender because El Deeb’s previous
policy had been cancelled. In its order denying El Deeb’s request for reconsideration, the
MRC determined that El Deeb did not present evidence to refute these concerns.
El Deeb contends that the MRC should not factor into its 2015 decision the
reasons for the 2014 license denial. But that is what the MRC’s rules require it to do:
9 If an applicant for a Class C license has had a license denied or had his or her license suspended or revoked or been excluded by another racing jurisdiction, or has engaged in conduct that the [MRC] determines would adversely affect the public health, welfare, and safety or the integrity of racing in Minnesota, the [MRC] shall consider such fact as prima facie evidence that the applicant is unfit to be granted a Class C license, and the burden of proof shall rest upon the applicant to establish his or her fitness. In reviewing such applications, the [MRC] shall consider the factors provided in part 7877.0100, subpart 2.
Minn. R. 7877.0125, subp. 2 (emphasis added). The 2014 license denial was prima facie
evidence of El Deeb’s unfitness for licensure, and the MRC was obligated to consider
that denial in its decision on 2015 licensure. See id.
El Deeb also argues that the decision to deny his 2015 application is not supported
by substantial evidence because the individuals who testified against his 2014 license
application did not testify in connection with his 2015 application, and because he
presented F.M.’s testimony refuting B.W.’s 2014 complaint of animal maltreatment. But
it was not the MRC’s obligation to reestablish the basis of its 2014 order, which became
prima facie evidence of El Deeb’s unfitness; rather, El Deeb bore the burden of
establishing his fitness for licensure. See id. And the MRC determined that much of
El Deeb’s evidence was irrelevant to accomplishing that task.
El Deeb also takes issue with the MRC’s consideration of the force-placed
insurance coverage as evidence of his lack of financial responsibility. While it is true that
El Deeb did not lose his policy for financial reasons, his violation of the original policy’s
terms combined with his failure to timely secure new coverage, requiring his mortgage
company to acquire force-placed insurance, demonstrates a lack of financial care and was
10 a relevant consideration in the calculus of El Deeb’s fitness for licensure. See Minn. R.
7877.0100, subp. 2.
In his reply brief, El Deeb also contends that the MRC’s consideration of the
December 2014 barn fire was inappropriate because the fire investigation did not reveal
the fire’s cause. We disagree. The MRC has a duty to determine whether licensing an
applicant is “consistent with the best interests of horse racing, the provisions of
Minnesota Statutes, chapter 240, and that licensure will not adversely affect the public
health, welfare, and safety within Minnesota.” Id. The MRC considered that the fire
resulted in the deaths of several horses and that this was the fourth fire El Deeb has had
on his farms, and discredited R.W.’s testimony that the 2014 fire was “bad luck” due to
his earlier statement to the police that the fire was likely caused by old wiring. The MRC
did not impermissibly consider the December 2014 barn fire in its decision to deny
El Deeb’s 2015 license application. See id.
Given the 2014 license denial and the additional information considered by the
MRC in its 2015 decision, we conclude that El Deeb has failed to establish that the
MRC’s decision is not supported by substantial evidence in the record. See N. Metro
Harness, 711 N.W.2d at 137.
II.
El Deeb also argues that the MRC’s decision is arbitrary and capricious because
the MRC considered an outstanding account without a written complaint from the
creditor and because the MRC’s decision is a product of its will and not its judgment.
11 Financial responsibility
El Deeb argues that the MRC’s decision in its order denying his 2015 application
is arbitrary and capricious because the MRC considered his outstanding account with
Prairie Farm Supply as evidence of his lack of financial responsibility without a written
complaint from Prairie Farm Supply.
We discern no arbitrary and capricious action in the MRC’s consideration of
El Deeb’s outstanding account with Prairie Farm Supply. The MRC’s rules provide for
financial-responsibility complaints against a licensee and for subsequent investigations
by the MRC’s stewards. See Minn. R. 7897.0100, subp. 10 (2015) (requiring a written
complaint from the licensee’s creditors before an investigation). But the legislature also
gave the MRC broad discretion to promulgate rules regarding any aspect of horse racing
that “affects the integrity of racing or the public health, welfare, or safety.” Minn. Stat.
§ 240.23(k) (Supp. 2015). One of the rules promulgated by the MRC establishes the
criteria for licensure, and among those criteria is that the “applicant’s . . . financial
responsibility [is] consistent with the best interests of horse racing.” Minn. R. 7877.0100,
subp. 2. Accordingly, the MRC carried out its obligation to evaluate El Deeb’s financial
responsibility and found that he had an outstanding account of more than $38,000 with
Prairie Farm Supply.
Decision product of will and not of judgment
El Deeb also contends that the MRC’s decision is a product of its will and not its
judgment. “An agency’s decision is arbitrary and capricious when it represents the
12 agency’s will and not its judgment . . . .” Brinks, Inc. v. Minn. Pub. Util. Comm’n, 355
N.W.2d 446, 452 (Minn. App. 1984).
El Deeb contends that the MRC’s questioning of K.O. reflects the MRC’s will to
deny his Class C license application. K.O. testified that she manages to care for 20
horses despite working full time, but she submitted a written statement that El Deeb’s
farms are understaffed even though he has a full-time employee at each location. A
committee member asked K.O., “So you have . . . 20 horses and you can maintain it. But
in this particular situation, there is a full-time person at each place and that’s not
enough?” The question is not evidence of bias but of an attempt to clarify the apparent
inconsistency between K.O.’s two statements.
In his reply brief, El Deeb contends that the MRC’s decision is the product of its
will because the MRC ignored favorable portions of his witnesses’ testimony and
credited other unfavorable portions. Determining credibility and weighing evidence are
not indicia of willful or arbitrary decisionmaking but of the MRC performing its duties as
the factfinder. See Cannon v. Minneapolis Police Dep’t, 783 N.W.2d 182, 189 (Minn.
App. 2010) (stating that “[w]e defer to [the factfinder’s] conclusions regarding conflicts
in testimony . . . and the inferences to be drawn from testimony” (quotation omitted)).
III.
El Deeb also argues that the MRC violated his rights to due process and equal
protection.
13 A. Due Process
“Quasi-judicial proceedings do not invoke the full panoply of procedures required
in regular judicial proceedings.” N. Metro Harness, Inc., 711 N.W.2d at 136. “The due-
process rights required are simply reasonable notice of a hearing and a reasonable
opportunity to be heard.” Id.
El Deeb contends that he did not receive an adequate opportunity to be heard
because the MRC prohibited him from addressing the issues highlighted in the 2014
license denial. El Deeb mischaracterizes the record. El Deeb’s witnesses were allowed
to, and almost exclusively did, talk about the past. And El Deeb’s explanations of his
prior behavior were not relevant to showing how he had remediated the concerns
highlighted in the 2014 license denial. Moreover, the MRC gave El Deeb time to
supplement the record. El Deeb timely submitted a written argument and a number of
documents on July 13, 2015 that addressed matters underlying the 2014 license denial,
and those documents were made part of the MRC’s record on his 2015 license
application. We conclude that El Deeb had ample opportunity to be heard.
El Deeb also contends that the MRC’s investigation process violated his right to
due process because the MRC’s executive director and an MRC member participated in
both the 2014 and 2015 license decisions. El Deeb cites two e-mails from September
2014 establishing that at least two of the people who participated in the decision on his
2014 application also participated in the decision on his 2015 application. The fact that
the MRC’s executive director and an MRC member participated in El Deeb’s 2014 and
2015 license applications is not evidence of a due-process violation. See id. As the MRC
14 argues, “It would be an absurd result if the commission, once it decides to deny a license
application, might never again have any input regarding that applicant.” We conclude
that El Deeb has not established that the MRC violated his right to due process.
B. Equal Protection
El Deeb raises several arguments, without supporting legal citation, that he was
denied his right to equal protection.
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). The “threshold
question” in an equal-protection claim “is whether the claimant is treated differently from
others who are similarly situated.” Odunlade v. City of Minneapolis, 823 N.W.2d 638,
647 (Minn. 2012). “[W]e 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).
El Deeb makes several allegations in support of his claim that the MRC violated
his right to equal protection: (1) the MRC’s investigation into his outstanding debt with
Prairie Farm Supply unfairly targeted El Deeb, (2) the MRC did not adequately consider
the fact that he settled his account with Prairie Farm Supply, (3) the MRC erroneously
considered the cancellation of his property insurance as evidence of his lack of financial
responsibility, (4) the MRC referred his case to Scott County for criminal prosecution,
(5) an e-mail from an MRC commissioner supporting the denial of El Deeb’s 2015
license application “omits the shenanigans [the MRC] is perpetrating on [El Deeb] by
15 selecting [him] out for punishment,” and (6) the MRC does not routinely inspect other
applications to determine if they contain false statements.2
We find no merit to El Deeb’s equal-protection arguments. El Deeb makes many
allegations that he was treated differently than other Class C license applicants, but
El Deeb has failed to establish that he was treated differently than similarly-situated
individuals. El Deeb came to the 2015 application process not as a new, unblemished
applicant, but as an applicant who was presumed to be unfit for licensure based on the
problems highlighted in the 2014 license denial. See Minn. R. 7877.0125, subp. 2. The
MRC was not obligated to treat El Deeb the same as a new applicant; rather, the MRC
conducted an appropriate investigation given El Deeb’s licensing history. See Minn. Stat.
§ 240.08, subd. 3 (2014) (stating that the MRC “shall investigate each applicant for a
class C license to the extent it deems necessary”). Consequently, El Deeb’s equal-
protection argument fails. See Odunlade, 823 N.W.2d at 647.3
2 El Deeb also cites to extra-record material to support his equal-protection arguments and moved to supplement the record on appeal. We denied that motion and do not consider those materials in our discussion here. 3 Additionally, El Deeb argues that we should transfer his case to a district court to further develop the record and cites to Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165 (Minn. App. 2001). In Hard Times Cafe, the relator challenged the denied renewal of a license by the Minneapolis City Council after a contested-case hearing in front of an administrative-law judge. 625 N.W.2d at 169-71. We transferred the case to a district court, as is authorized under the Minnesota Administrative Procedure Act, because of alleged procedural irregularities in the city council’s decision and because the record was insufficient to review the alleged irregularities. Id. at 174-75; see Minn. Stat. § 14.68 (2014) (“[I]n cases of alleged irregularities in procedure, not shown in the record, the [c]ourt of [a]ppeals may transfer the case to the district court for the county in which the agency has its principal office or the county in which the contested case hearing was held.”). Even if the MRC’s consideration of and hearing on El Deeb’s 2015 application
16 IV.
El Deeb also contends that the MRC was statutorily prohibited from considering
the criminal charges against him for making false statements on his prior applications.
El Deeb suggests that the requirement that a Class C applicant submit an affidavit
confirming that the applicant has not been “found guilty of fraud or misrepresentation in
connection with racing or breeding,” Minn. Stat. § 240.08, subd. 2(a)(4) (Supp. 2015),
means that the MRC could not consider that El Deeb is facing charges stemming from
false statements on his prior applications. We disagree. The MRC may broadly consider
anything relevant to an applicant’s “reputation” and “record of law abidance,” which
presumably includes criminal charges for lying on prior license applications. See Minn.
R. 7877.0100, subp. 2. And, in any event, neither the order denying El Deeb’s 2015
application nor the order denying his request for reconsideration contains a finding
regarding criminal charges for false statements on El Deeb’s prior applications.
El Deeb’s argument fails.
V.
Finally, we address the MRC’s motion to strike three portions of El Deeb’s reply
brief: (1) El Deeb’s reference to the financial value of the horses killed in the December
2014 barn fire, (2) El Deeb’s allegation that the MRC has never reviewed an applicant’s
constituted a contested case, El Deeb has not established that the MRC’s record is insufficient to review any alleged procedural irregularities, and we therefore decline El Deeb’s request to transfer the case to a district court. See Hard Times Cafe, 625 N.W.2d at 174-75.
17 financial responsibility to the extent it did with him, and (3) El Deeb’s reference to a
2007 study regarding his contributions to Minnesota’s horse racing industry.
Each statement of a material fact in an appellate brief “shall be accompanied by a
reference to the record.” Minn. R. Civ. App. P. 128.02, subd. 1(c). “Appellate courts
may not consider matters outside the record on appeal and will strike references to such
matters from the parties’ briefs.” Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn.
App. 2005), review denied (Minn. July 19, 2005). We may deny a motion to strike as
moot, however, if we do not rely on the challenged material to reach our decision.
Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 233 n.2 (Minn. 2007).
Although the cited portions of El Deeb’s reply brief fail to cite supporting
materials in the record, we need not rely on them to reach our decision. Neither the value
of the horses that died in the barn fire nor El Deeb’s alleged historical contributions to
Minnesota horse racing is relevant to our analysis of the MRC’s decision to deny
El Deeb’s 2015 Class C license application. El Deeb’s allegation regarding the MRC’s
review of his financial responsibility merely restates one of El Deeb’s unsubstantiated
claims in his primary brief. Because we need not rely on these portions of El Deeb’s
reply brief, we deny the MRC’s motion to strike as moot. See id.
Affirmed; motion denied.