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Nacey v. Board of Massage Therapists

Court of Appeals of Oregon

August 9, 2017

James L. NACEY, Petitioner,
v.
BOARD OF MASSAGE THERAPISTS, Respondent.

          Argued and submitted February 28, 2017

         Board of Massage Therapists 1732

          Kevin T. Lafky argued the cause for petitioner. With him on the opening brief was Leslie D. Howell. With him on the reply brief were Leslie D. Howell and Lafky & Lafky.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

         Case Summary:

         Petitioner is a massage therapist licensed by the Board of Massage Therapists. He seeks judicial review of a final order of the board in which the board determined that petitioner had committed violations of four separate administrative rules governing massage therapists, imposed a civil penalty, and ordered petitioner to pay the costs of the administrative proceeding. The board concluded on summary determination that petitioner violated OAR 334-040-0010(23)(h), the rule barring a massage therapist from exercising undue influence on a client, when he did not give a refund for the nonrefundable package of massages sold to the client. Petitioner argues that summary determination of the issue was not appropriate because the record evidenced numerous factual disputes as to whether petitioner exercised undue influence over his client. To the extent that the board concluded that the undisputed facts were sufficient to establish that petitioner violated the undue influence rule, petitioner argues that the board erroneously interpreted the rule.

         Held:

         The record evidenced numerous disputes of fact about petitioner's transaction with his client, and, when the facts are viewed in the light most favorable to petitioner, petitioner did not violate OAR [287 Or. 229] 334-040-0010(23)(h). The board therefore erred by ruling against petitioner on summary determination, and a hearing is required to resolve the relevant factual disputes.

         Reversed and remanded as to the determination that petitioner violated OAR 334-040-0010(23)(h); civil penalty and costs award vacated and remanded; otherwise affirmed.

          LAGESEN, J.

         Petitioner is a massage therapist licensed by the Oregon Board of Massage Therapists. He seeks judicial review of a final order of the board in which the board determined that petitioner had committed violations of four separate administrative rules governing massage therapists, imposed a civil penalty of $4, 000, and ordered him to pay the costs of the administrative proceeding. See ORS 687.086; ORS 183.482 (providing for judicial review of board orders in contested cases). Pertinent to the issue that we write to address, the board concluded on summary determination that petitioner violated OAR 334-040-0010(23)(h).[1]That rule bars a massage therapist from "[e]xercising undue influence on a client, including promotion or sale of services, goods, or appliances in such a manner as to exploit the client for the financial gain * * * of the massage therapist." In his first assignment of error, petitioner argues that summary determination of the issue was not appropriate because the record evidenced numerous factual disputes as to whether petitioner exercised undue influence over his client. To the extent that the board concluded that the undisputed facts were sufficient to establish that petitioner violated the undue influence rule, petitioner argues that the board erroneously interpreted the rule. For the reasons that follow, we conclude that the board erred when it granted summary determination against petitioner and, therefore, when it imposed a civil penalty and costs based, in part, on that erroneous grant. We therefore reverse and remand to the board for further proceedings with respect to petitioner's alleged violation of OAR 334-040-0010(23)(h) and vacate and remand the civil penalty and costs award, but we affirm the board's determinations regarding the other three alleged rule violations.[2]

         [287 Or. 230] We review a grant of summary determination for legal error. Wolff v. Board of Psychologist Examiners, 284 Or.App. 792, 800, 395 P.3d 44 (2017). Summary determination is appropriate only if the evidence, when viewed in the light most favorable to the nonmoving party, establishes that "there is 'no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought, ' and the party filing the motion [] 'is entitled to a favorable ruling as a matter of law.'" Id. (quoting OAR 137-003-0580).

         The facts surrounding the transaction that led to the disciplinary action against petitioner are very much in dispute. However, as required by our standard of review, we state those facts in the light most favorable to petitioner. Viewed ...


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