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Board cannot grant summary determination when facts are in dispute


An Oregon court overturned a disciplinary decision by the state massage therapy board August 9, holding that the board improperly issued a summary determination on a charge that a licensee had improperly influenced a client, when the underlying facts of that charge were reasonably in dispute.

(Nacey v. Board of Massage Therapists).

The case began when licensed massage therapist James Nacey sold a package of 10 massages to a customer. However, after the first massage, the customer requested a refund, which Nacey declined to give. The facts of the case were contested; Nacey testified that the massage package was understood to be non-refundable. The customer filed a complaint with the board, which convened a disciplinary process.

During the hearing, the board moved for summary determination on all of the charges against Nacey and was successful on three. One of the charges granted a summary determination, despite the fact that Nacey contested the underlying facts, alleged that Nacey violated a provision prohibiting therapists from “exercising undue influence on a client . . . in such a manner as to exploit the client for financial gain,” on the grounds that Nacey improperly kept the balance of the payment for future massages after the customer requested a refund.

The administrative law judge then held a factual hearing on the fourth charge and determined that Nacey was guilty of this too, fining him $4,000 plus costs.

The Court of Appeals of Oregon, hearing the appeal, agreed with Nacey’s argument that the board had improperly used summary determination on a charge for which the underlying facts were contested.

Reviewing the facts of the case in the light most favorable to Nacey (a standard required for review of summary determinations), the court determined that the board could not reasonably find that Nacey had used undue influence over the customer. In Nacey’s telling, the customer approached him for a package of massages, which Nacey informed him were non-refundable.

This, the court held, was an “arms-length” transaction and Nacey could not have been said to have exploited a prior relationship with the customer. “Nothing in the terms of the rule reasonably can be construed to suggest that, in the absence of any exploitative conduct, a massage therapist must provide a refund to a customer who made an arms-length bargain for a nonrefundable package of massages,” wrote Judge Erin Lagesen. She noted that there were facts to support the charge, but, because those facts were in contention, the board could not have imposed a summary determination. The judge then vacated the civil penalty and fines and remanded the case to the board.