Schlosser v. Dept. of Commerce

Schlosser v. Dept. of Commerce

IN THE UTAH COURT OF APPEALS

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Michael Schlosser,

Petitioner,

v.

State of Utah, Department of Commerce, Division of Occupational and Professional Licensing,

Respondent.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20021034-CA
 

F I L E D

(January 2, 2004)
 

2004 UT App 2

 

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Original Proceeding in this Court

Attorneys: David J. Holdsworth, Sandy, for Petitioner

Mark L. Shurtleff and William Loos, Salt Lake City, for Respondent

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Before Judges Davis, Jackson, and Thorne.

THORNE, Judge:

Michael Schlosser appeals from the decision of the Department of Commerce, Division of Occupational and Professional Licensing (DOPL), revoking his license as a massage therapist. We affirm.

We will reverse DOPL's factual findings only if, after reviewing the whole record before this court, we conclude that the findings are not supported by substantial evidence. See Johnson v. Department of Employment Sec., 782 P.2d 965, 968 (Utah Ct. App. 1989). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Grace Drilling Co., v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989) (additional citation omitted)).

[T]he record as a whole must be examined in determining whether findings are supported by the evidence, [however] that does not mean that the testimony of all witnesses must be given equal weight. It [is] clearly the prerogative of [DOPL] to place greater weight on [certain witnesses'] testimony . . . than upon the testimony [of others].

Questar Pipeline Co. v. Utah State Tax Comm'n, 850 P.2d 1175, 1178 (Utah 1993); cf. Albertsons, Inc. v. Department of Employment Sec., 854 P.2d 570, 575 (Utah Ct. App. 1993) ("We are in no position to second guess the detailed findings of the ALJ which were adopted by the Board. It is not our role to judge the relative credibility of the witnesses.").

Here, following a hearing on the State's petition, the Board of Massage Therapy (the Board), in conjunction with a Department of Commerce Administrative Law Judge (the ALJ), found (1) Schlosser had performed breast massage treatment on a female patron (the Victim) during each of seven scheduled appointments, but not at her request; (2) Schlosser failed to obtain from the Victim signed written consent forms explaining the reasons for the breast massage; (3) Schlosser, on more than one occasion during the Victim's final scheduled massage therapy session, touched her genitals and anus while massaging muscles located near these areas; (4) Schlosser made an inappropriate and lewd comment to the Victim during her final massage treatment session; and (5) Schlosser repeatedly failed to adequately and properly drape the Victim during her massage treatment sessions. In support of these findings, the Board expressly pointed to "the substantial and more credible evidence" adduced at the hearing.

After reviewing the record as a whole, we are persuaded that DOPL's findings are supported by substantial evidence. First, Schlosser admitted that he failed to obtain the Victim's signed written consent even though he was aware that signed consent forms are required to administer breast massage therapy. Second, the Victim testified that Schlosser touched her genitals and anus more than once during her final massage therapy session,(1) and that when she reacted to this intrusion, Schlosser attempted to reassure her that her reaction was normal. She further testified that while he was massaging her upper leg, Schlosser made an unsolicited and offensive sexual comment to her concerning his own genitals. Finally, the Victim's description of Schlosser's breast massage technique suggested that Schlosser was not engaged in therapeutic massage during the activity.

Admittedly, Schlosser testified that he had never touched the Victim's genitals and that her description of the events made the contact unlikely, if not impossible. He further testified that he had never made any sort of sexual comment to the Victim, and that the technique he used for the breast massage fully comported with the techniques he had been taught while in massage therapy school. Moreover, he unswervingly asserted that the Victim requested the breast massage therapy, and that contrary to the Victim's account he did not initiate any discussion concerning breast massage. He also produced three witnesses who testified that he had never acted inappropriately during their numerous massage therapy sessions and that they had full confidence in his abilities and professionalism.

However, it is the Board's prerogative to determine credibility and to weigh the value of conflicting testimony. See Questar Pipeline Co., 850 P.2d at 1178. Here, the Board clearly believed the Victim and not Schlosser.(2) Consequently, accepting, as we must, the Victim's testimony, there is substantial evidence to support DOPL's findings that Schlosser engaged in unlawful activity while practicing massage therapy.

Furthermore, the findings support DOPL's decision to revoke Schlosser's license. By statute, DOPL is empowered to "revoke

. . . or otherwise act upon the license of any licensee [when] the . . . licensee has engaged in [unlawful or] unprofessional conduct, as defined by statute or rule under" Title 58. Utah Code Ann. § 58-1-401(2)(a), (b) (2002). For purposes of the licensing act, unprofessional or unlawful conduct occurs when a licensee massages or touches a patron's genitals or anus while in "the course of practicing or engaging in massage therapy." Id. § 58-47b-501(3)(a) (2002). The licensing act similarly prohibits the massaging or touching of the breasts of a female patron, unless the female patron requests the massage and signs a written consent form that fully describes the reasons for the breast massage. See id. § 58-47b-501(3)(b).

Here, the Board found that Schlosser repeatedly touched the Victim's genitals and anus during her final massage therapy session. The Board further found, and Schlosser admitted, that Schlosser had failed to obtain the Victim's written consent for the repeated breast massage treatments. And, while it is true that the Victim orally consented to the breast massage treatments, the plain language of the statute requires written informed consent; thus, the Victim's oral consent is insufficient to overcome the statutory requirement. See American Fork v. Carr, 970 P.2d 717, 719 (Utah Ct. App. 1998) (explaining that we look to the plain language of the statute to determine legislative intent). Therefore, because the Board essentially found that Schlosser had engaged in unlawful conduct, the findings support the Board's revocation decision.

Moreover, DOPL's decision to revoke Schlosser's license was neither an abuse of its discretion, nor was it arbitrary or capricious. "Discretion may best be viewed as an arena bounded by the law, within which the tribunal may exercise its judgment as it sees fit." Tolman v. Salt Lake County Attorney, 818 P.2d 23, 26 (Utah Ct. App. 1991). DOPL abuses its discretion when it makes a decision "'"that is clearly against the logic and the effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing."'" Id. (citations omitted). Here, after finding that Schlosser engaged in unlawful activity, pursuant to section 58-1-401(2), DOPL is authorized to, inter alia, revoke his license. See Utah Code Ann. § 58-1-401(2). Consequently, DOPL's revocation decision fell within the bounds of discipline available to it and, under the circumstances here presented, its decision was within its permitted range of discretion.

Finally, the decision of an administrative agency will be considered "arbitrary and capricious" only if it was a "willful and unreasonable action [made] without consideration or in disregard of facts or law or without determining principle." Black's Law Dictionary 105 (6th ed. 1990). Consequently, "[w]e review claims that an agency action was arbitrary and capricious for reasonableness." Bourgeous v. Department of Commerce, 2002 UT App 5,¶7, 41 P.3d 461 (quotations and citations omitted). Here, DOPL fully articulated, on the record, the reasons for the decision to revoke Schlosser's license. It explained the basis for the decision and supported the decision with factual findings supported by the evidence. Thus, because we cannot say that DOPL's decision was unreasonable under the circumstances here presented, we cannot say that it's decision was arbitrary or capricious.

Accordingly, we affirm DOPL's decision to revoke Schlosser's license to practice massage therapy.

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William A. Thorne Jr., Judge

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WE CONCUR:

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James Z. Davis, Judge

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Norman H. Jackson, Judge

1. On appeal, Schlosser highlights the differences in the Victim's story concerning the number of times she was touched inappropriately during the massage. Specifically, the Victim told investigators that Schlosser touched her genitals either "six or seven" times or "four" times, but she testified to the Board that he touched her "three or four" times. Although we agree that elements of the Victim's account changed over time, the numerical differences have no impact on the final outcome. At no point did the Victim recant, or even suggest that she might be mistaken. Instead, she held firm in her belief that Schlosser engaged in inappropriate touching during her final session with him, and that he attempted to explain the contact as a normal part of therapy. Moreover, Schlosser's efforts in this regard are best described as a credibility argument, and "[i]t is not our role to judge the relative credibility of the witnesses." Albertsons, Inc. v. Department of Employment Sec., 854 P.2d 570, 575 (Utah Ct. App. 1993). Consequently, Schlosser's argument is without merit.

2. Schlosser suggests that DOPL is required to explain on the record its reasons for finding the Victim's testimony more credible. He, however, does not support this argument with citation to applicable law, nor are we aware of any authority, that would support such a requirement. Accordingly, we do not address this argument.