462 P.3d 808
Utah Ct. App.2020Background
- Investigator from DOPL entered a massage business and was greeted by Jessica Ho, who offered a 30-minute massage for $50 or an hour for $90, said she would provide it, and began massaging the investigator’s arm.
- Ho previously had a massage license that had been revoked; at the time of the contact she had no current license.
- DOPL cited Ho for practicing or holding herself out as practicing massage therapy without a license under Utah law; Ho requested a hearing.
- A Board hearing and ALJ proceeding produced findings that Ho offered and provided a paid massage and that her license had been revoked; the Board recommended, and the DOPL director imposed, a $1,500 fine.
- The Department of Commerce adopted the Board’s findings and upheld the fine; Ho sought judicial review arguing (1) the statute defining unlawful “providing, offering, or advertising a paid service using the term massage” violates the First Amendment, and (2) she was denied due process at the hearing (improper delegation, board bias, and prejudice from a reference to a past prostitution charge).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Utah Code §58-47b-102(6)(l) facially violates the First Amendment | Ho: statute unlawfully restricts speech (e.g., use of the word “massage”) | DOPL: statute regulates commercial, potentially misleading speech about paid massage services by unlicensed persons | Held: statute is constitutional as applied; speech is commercial and misleading, so regulation passes Central Hudson scrutiny |
| Whether the Board unlawfully decided questions of fact and law (delegation) | Ho: denial of due process because Board made findings of fact and law rather than the ALJ alone | DOPL: roles were authorized by statute and Ho did not object below | Held: argument unpreserved; not considered on appeal |
| Whether the Board was an institutionalized, biased agent of DOPL | Ho: Board structurally conflicted, depriving her of a neutral adjudicator | DOPL: no timely objection; statutory scheme permits Board participation | Held: argument unpreserved; not considered on appeal |
| Whether a prosecutor’s offhand reference to Ho’s prior prostitution charge prejudiced the hearing | Ho: single reference unfairly prejudiced the Board and violated due process | DOPL: reference was fleeting, ALJ excused the Board and admonished it to disregard; no evidence Board relied on it | Held: no substantial prejudice; curative instruction effective and no appearance of unfairness |
Key Cases Cited
- Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (establishes four-part test for commercial speech regulation)
- In re R.M.J., 455 U.S. 191 (misleading commercial speech may be prohibited)
- Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (commercial speech receives lesser protection)
- Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (limits on overbreadth doctrine for commercial speech)
- Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469 (commercial-speech characterization principles)
- ABCO Enterprises v. Utah State Tax Commission, 211 P.3d 382 (Utah Supreme Court: deference to agency factual findings and preservation principles)
- Waite v. Utah Labor Commission, 416 P.3d 635 (statutory interpretation and constitutionality reviewed for correctness)
- Nelson v. City of Orem, 309 P.3d 237 (appearance-of-unfairness standard for biased decisionmakers)
- Vega v. Jordan Valley Medical Center, LP, 449 P.3d 31 (facial-challenge standard and presumption of constitutionality)