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Zen Healing Arts LLC v. Department of Commerce

Court of Appeals of Utah

February 8, 2018

Zen Healing Arts LLC, Jeff Stucki, and Leisa Metcalf, Appellants,
v.
Department of Commerce, Division of Occupational and Professional Licensing, Appellee.

         Third District Court, Salt Lake Department The Honorable Barry G. Lawrence No. 120900860

          W. Andrew McCullough, Attorney for Appellants

          Sean D. Reyes, Stanford E. Purser, and Erin T. Middleton, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Michele M. Christiansen and Jill M. Pohlman concurred.

          OPINION

          TOOMEY, Judge

         ¶1 In 2011, the Division of Occupational and Professional Licensing (DOPL) issued citations and cease and desist orders against Zen Healing Arts LLC, Jeff Stucki, and Leisa Metcalf (collectively, Appellants) for violating the Massage Therapy Practice Act (the MTPA). See Utah Code Ann. § 58-47b-102(6) (LexisNexis 2016) (defining the practice of massage therapy); id. § 58-47b-501 (providing the scope of unlawful conduct under the MTPA). Stucki was also fined for this violation. Appellants challenged the citations and the Department of Commerce upheld them. Appellants appealed the Department's decision to the district court and sought declaratory judgment as to whether DOPL's rule defining the term "manipulation" (the Rule), as used in the MTPA, was valid. Although Appellants were not cited under the Rule-because it was not promulgated until 2012-the district court determined that Appellants had standing to challenge the Rule and concluded the Rule was "a valid exercise of DOPL's rulemaking authority."

         ¶2 Appellants timely appealed, contending the court erred in concluding that the Rule was (1) valid and supported by substantial evidence and (2) constitutional. We conclude Appellants lacked standing to challenge the Rule at the district court and therefore vacate the court's declaratory judgment for lack of jurisdiction. See Jackson Const. Co. v. Marrs, 2004 UT 89, ¶ 8, 100 P.3d 1211 (providing that when a motion to vacate is based on a lack of jurisdiction and "jurisdiction is lacking, the judgment cannot stand").[1]

         ¶3 Zen Healing Arts LLC, doing business as Beaches Bodyworks, is a Utah limited liability company.[2] Beaches Bodyworks provided numerous "relaxation" services, including "light touch" techniques applied to the arms, legs, and backs of the clients. These techniques often involved administering oils. In 2011, DOPL issued a cease and desist order against Metcalf, a Beaches Bodyworks employee, for "performing massages without a license" in violation of the MTPA. See Utah Code Ann. § 58-47b-102(6) (providing the definition and scope of the practice of massage therapy). DOPL also issued a cease and desist order against Stucki, who operated Beaches Bodyworks, as well as a fine of $800 for hiring unlicensed massage therapists. See id.; see also id. § 58-47b-501 (providing the scope of "unlawful conduct" under the MTPA including, in relevant part, "practicing, engaging in, or attempting to practice or engage in massage therapy without holding a current license as a massage therapist . . . under this chapter"). Appellants requested a hearing with DOPL and challenged the citations against them. DOPL's presiding officer upheld the citations, and the Department later affirmed DOPL's decision.

         ¶4 During these administrative proceedings, DOPL enacted the Rule, which provides: "'Manipulation, ' as used in Subsection 58-47b-102(6)(b), means contact with movement, involving touching the clothed or unclothed body." Utah Admin. Code R156-47b-102(10). Following the administrative proceedings, Appellants filed a complaint seeking judicial review of the Department's decision. Appellants also sought relief under the Utah Declaratory Judgment Act to declare the Rule as "invalid and of no force or effect, and that [the Rule] is in conflict with Utah statutes on the practice of massage therapy."

         ¶5 The district court hesitated to address the Rule because it "was not in place when the citations were given" and therefore addressing it "would constitute an advisory opinion." Appellants "nonetheless urge[d] the Court to address the issue because [Appellants], and those similarly situated, are harmed by the MTPA and[] because it is likely that this issue will recur for [Appellants]." Although the court determined it had jurisdiction to address the issue and listed four threshold elements to be satisfied to proceed with a declaratory judgment action, it did not provide specific factual findings as to each element. The court concluded that the citations issued against Appellants were valid because they engaged in light touch massage and received a fee for those services in violation of the MTPA. The court also concluded the Rule was valid because the definition of "manipulation" merely clarified the MTPA rather than expand its scope.

         ¶6 Appellants timely appealed. Their appeal focuses entirely on whether the district court erred in concluding the Rule was valid. We agree with DOPL that Appellants have failed to show they have standing to challenge the Rule, because they have not shown that they were "aggrieved" by it. See Utah Code Ann. § 63G-3-602(1)(a) (LexisNexis 2016) ("Any person aggrieved by [an administrative] rule may obtain judicial review of the rule by filing a complaint[.]"). DOPL stated that it "doubts whether the Rule has caused or will cause [Appellants] any distinct or palpable injury considering they were cited before the Rule was enacted and Zen Healing Arts is not currently operating." Appellants did not respond to this challenge in their reply brief other than to state that "[t]he Finding by the Court that these particular [Appellants] were validly cited for practicing massage [therapy] without licenses does not rob them of their standing to challenge the Rule." This statement, alone, does not satisfy the requirements needed to assert standing.

         ¶7 "Standing is a question of law that we review for correctness[.]" Packer v. Utah Att'y Gen's Office, 2013 UT App 194, ¶ 7, 307 P.3d 704 (citation and internal quotation marks omitted). "[S]tanding is a jurisdictional requirement that must be satisfied before a court may entertain a controversy between two parties." Id. ¶ 8 (alteration in original) (citation and internal quotation marks omitted). Even though Appellants sought relief under the Utah Declaratory Judgment Act, they still "must have standing to invoke the jurisdiction of the court." See Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983) (determining that the "statutory creation of relief in the form of a declaratory judgment does not . . . grant jurisdiction to the court where it would not otherwise exist").

          ¶8 Before a district court can "proceed in an action for declaratory judgment, " four requirements must be satisfied: "(1) there must be a justiciable controversy; (2) the interests of the parties must be adverse; (3) the parties seeking relief must have a legally [protectable] interest in the controversy; and (4) the issues between the parties must be ripe for judicial determination." Id. (citation and internal quotation marks omitted). Significantly, "[r]equirements (2) and (3) represent the traditional test for standing, " which requires claimants to "show that [they have] suffered some distinct and palpable injury that gives [them] a personal stake in the outcome of the legal dispute." Id. Our supreme court has held that it is "generally insufficient" for claimants to "assert only a general interest [they] share[] in common with members of the public at large" and instead must satisfy standing requirements in order to seek relief. See id. at 1149.

         ¶9 To establish whether Appellants have standing to sue, "we engage in a three-step inquiry": (1) Appellants must show that they were adversely affected by the governmental action; (2) Appellants must show that they are appropriate parties to challenge the governmental action; and (3), even if Appellants are appropriate parties to challenge the action, they must show that the issue raised is of sufficient public importance. Id. at 1150-51. The first step of this inquiry is identical to "the traditional criteria of the plaintiff's personal stake in the controversy." Id. at 1150. If this first step is satisfied our inquiry ends and the plaintiff may move forward with the litigation. See id. If the plaintiff does not have standing under the first step, then we address the second and third steps of the inquiry, id., referred to as the "alternative standing test." See Utah Chapter of Sierra Club v. Utah Air Quality Board, 2006 UT 74, ¶ 35, 148 P.3d 960 ...


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