Ho v. Department of Commerce

2023 UT App 87

THE UTAH COURT OF APPEALS

JESSICA HO,
Appellant,
v.
DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND
PROFESSIONAL LICENSING,
Appellee.

Opinion
No. 20210940-CA
Filed August 10, 2023

Third District Court, Salt Lake Department
The Honorable Kent R. Holmberg
No. 200907275

W. Andrew McCullough, Attorney for Appellant
Sean D. Reyes, Stanford E. Purser, and Laurie L.
Noda, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 Jessica Ho applied for a massage therapy license, but her
request for an unrestricted license was denied by Utah’s Division
of Occupational and Professional Licensing (DOPL). She asked for
judicial review of DOPL’s decision and, after a bench trial, the
district court sustained DOPL’s refusal to give Ho an unrestricted
license, but the court held that Ho was entitled to a probationary
license subject to certain conditions. Ho now appeals, asserting
that the court grounded its ruling, in material part, on evidence
that Ho believes the court should not have considered. We reject
Ho’s arguments and affirm the court’s ruling.
Ho v. Department of Commerce

BACKGROUND

¶2 Ho first applied for a Utah massage therapy license in 2012.
This initial application was conditionally denied because she “did
not submit required education documentation” and therefore had
an “incomplete transcript.” The application was officially denied
a few months later, when Ho did not submit the remaining
documentation. In 2014, she submitted a second application, this
time applying through an apprenticeship program, but this
application was also conditionally denied because Ho “did not
complete the apprenticeship,” did not complete a required exam,
and did not submit proper documentation. Shortly after the
second conditional denial, DOPL investigated the apprenticeship
and learned that Ho “had not been following the requirements for
the apprenticeship.” The person for whom Ho had been
apprenticing told DOPL’s investigator that he “was misled by
[Ho] and that [she] submitted certain applications . . . without
[his] knowledge, consent, . . . or authorization.” Ho then
“surrendered [her] massage apprenticeship license.”

¶3 In 2015, Ho applied a third time for a massage therapy
license, and this time she was successful. However, some two
years later DOPL disciplined Ho after determining that she had
engaged in “unprofessional conduct” in connection with
providing massage therapy. At issue was a 2016 incident in which
DOPL found that Ho agreed to provide “a happy ending”—a
term DOPL defined as “an illicit sex act for hire”—to a “client”
who turned out to be an undercover police officer. Ho was
charged criminally and eventually convicted in connection with
this incident, but the criminal conviction was later expunged.
Separate from the criminal proceedings, however, Ho also faced
administrative consequences related to the same incident: in April
2017, after an administrative hearing, DOPL revoked Ho’s
massage therapy license, banned Ho from applying for a new
license for three years, and instructed her that, even after the
three-year period had expired, it would not consider her

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application unless she could “demonstrate that she has taken
appropriate courses in the State of Utah regarding the statutes,
rules and ethical standards applicable to massage therapists and
can demonstrate . . . her familiarity with such matters.”

¶4 In August 2017, just a few months after her license was
revoked, Ho offered to provide, and then did actually provide,
massage therapy services to a “client” who turned out to be a
DOPL investigator. DOPL later found that Ho had practiced
massage therapy without a license and had therefore “engaged in
unlawful conduct.” As a sanction, DOPL imposed upon Ho a
$1,500 fine. Ho sought judicial review of the administrative order
that imposed the fine; on review, we declined to disturb that
order. Ho v. Department of Com., 2020 UT App 37, 462 P.3d 808.

¶5 In May 2020, after her three-year ban had expired, Ho
applied for reinstatement of her license. Among other questions,
the application asked whether Ho had ever had a license “to
practice a regulated profession denied” or conditioned in any
way; Ho truthfully answered that question in the affirmative. Ho
was represented by counsel in the application process, and
counsel submitted a cover letter with the application in which he
requested that Ho’s licensure request “be placed on the agenda of
the next Board meeting to discuss the conditions of her licensure.”

¶6 DOPL put Ho’s request on the agenda for the next meeting,
and invited Ho and her attorney to participate in the meeting by
telephone. At this meeting, DOPL’s Board of Massage Therapy
(Board) recommended that Ho be granted a probationary license
that would, for a five-year period, be subject to conditions set
forth in a Memorandum of Understanding (MOU), though Ho
could apply for an unrestricted license after two and a half years.
Among other conditions, Ho was required to meet with a Board
representative “on a bi-monthly basis.” But most significantly, Ho
was permitted to “practice only under the direct supervision of a
massage therapist licensed and in good standing” with DOPL and

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who was “pre-approved” by the Board. Ho agreed to these terms
at the meeting and, a few weeks after the meeting, signed the
MOU. She now asserts that she agreed to these terms only because
she believed—correctly, as it turned out—that the Board would
deny her application outright if she did not.

¶7 After execution of the MOU, Ho submitted the name of one
potential supervisor, a massage therapist who worked at a facility
owned by Ho’s son and who had a “prior licensing history.”
DOPL declined to approve this person as Ho’s supervisor.

¶8 Instead of continuing to search for a suitable supervisor,
Ho then requested, through counsel, that the MOU be abrogated,
asserting that it was “obviously not going to be workable” for her.
Ho indicated that she preferred that DOPL simply deny the
application outright, which would allow her to appeal
administratively and, if necessary, seek judicial review. DOPL
agreed to abrogate the MOU, and the parties then executed a
“non-disciplinary surrender stipulation and order,” which noted
that Ho “intends to be released from the requirements of the
[MOU], reapply for licensure, and, if denied, pursue her rights of
review and appeal.” It also stated that the parties’ stipulation was
not to be construed as “a further finding of unprofessional or
unlawful conduct, nor is it disciplinary action against [Ho].”

¶9 Soon thereafter, in August 2020, Ho submitted another
application for an unrestricted massage therapy license. DOPL
denied Ho’s application, citing (among other grounds) Ho’s
previous “unprofessional conduct” in connection with the 2016
incident and her previous “unlawful conduct” of practicing
massage therapy without a license in 2017. DOPL also mentioned
the 2012 and 2014 application denials, as well as the events related
to the execution and subsequent abrogation of the MOU. Ho
appealed DOPL’s decision to the Utah Department of Commerce
(Department), which upheld DOPL’s decision for similar reasons.

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Ho v. Department of Commerce

¶10 After exhausting her administrative remedies, Ho then
filed a Complaint for Judicial Review in the district court, asking
for a “trial de novo” and for a judicial determination, following
that trial, that Ho was entitled to an unrestricted massage therapy
license. A few months later, the district court held a one-day
bench trial to consider Ho’s claims. Ho called two witnesses to
testify at the trial: herself and a DOPL representative. DOPL called
one witness of its own. At trial, and in various pretrial motions,
Ho asked the court not to consider certain evidence, including
(1) any of her pre-2015 applications, (2) her criminal conviction
stemming from the 2016 incident, (3) the 2017 incident in which
she practiced massage therapy without a license, and (4) her
actions in connection with the MOU. The court denied Ho’s
pretrial motions, and it allowed DOPL to present, at trial,
evidence related to all four of the contested matters.

¶11 At the conclusion of the trial, the court took the matter
under advisement and later held a telephone conference to
announce its ruling. 1 In a written order memorializing that oral
ruling, the court agreed with DOPL and the Department that Ho
was not entitled to an unrestricted license, given her licensing and
practice history. In connection with this determination, the court
found—among other things—that Ho’s “actions with respect to
the MOU were unreasonable and not in good faith.” However, the
court ruled that Ho “should be granted a probationary license”
under conditions similar to those set out in the MOU, including
the requirement that Ho be supervised by a licensed massage
therapist approved by DOPL. The court set the “probationary
period” at three years, though Ho would be entitled to “reapply
for an unrestricted license after 1.5 years.”

1. The record submitted to us includes neither a transcript of the
one-day trial nor a transcript of the court’s oral ruling.

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ISSUE AND STANDARDS OF REVIEW

¶12 Ho now appeals, asserting primarily that the court, in the
process of arriving at its ruling, improperly considered several
items of evidence. To the extent Ho’s challenge calls into question
the district court’s interpretation of statutes, rules, or regulations,
we review such determinations without deference. See Scott v.
Benson, 2021 UT App 110, ¶ 16, 501 P.3d 1148 (“Questions of
statutory interpretation are questions of law; we review a district
court’s statutory interpretation decisions for correctness,
affording them no deference.”), aff’d, 2023 UT 4, 529 P.3d 319
(Utah 2023). But to the extent Ho’s challenge calls into question
the court’s decision to admit a challenged piece of evidence, we
review such decisions only for abuse of discretion. See State v.
Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (“We afford district courts
a great deal of discretion in determining whether to admit or
exclude evidence and will not overturn an evidentiary ruling
absent an abuse of discretion.” (quotation simplified)).

ANALYSIS

¶13 Under Utah law, DOPL “may refuse to issue a license to an
applicant” who has engaged in “unprofessional conduct” or
“unlawful conduct.” Utah Code § 58-1-401(2)(a), (b).
Unprofessional conduct includes, among other things, “violating
any statute, rule, or order regulating a profession under this title,”
as well as any “conduct that results in conviction . . . or a plea of
guilty or nolo contendere that is held in abeyance pending the
successful completion of probation with respect to a crime that . . .
bears a substantial relationship to the . . . applicant’s ability to
safely or competently practice the profession.” Id. § 58-1-
501(2)(a)(i), (iii). Unlawful conduct includes “practicing or
engaging in . . . any profession requiring licensure” without the
proper licensure. Id. § 58-1-501(1)(a). In previous proceedings,
DOPL found that Ho had engaged in both unprofessional conduct
(related to the 2016 incident) and unlawful conduct (related to the

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2017 incident). DOPL’s findings regarding these earlier incidents
are not challengeable in this appeal; understandably, Ho makes
no effort here to contest those underlying findings.

¶14 In situations like this one, where an applicant “is not
automatically disqualified from licensure pursuant to statute” but
“has past unlawful or unprofessional conduct,” pertinent
regulations provide a list of factors that “are relevant to a licensing
decision.” Utah Admin. Code R156-1-302. Those factors include
the following:

• any “aggravating circumstances,” including any “prior
record of disciplinary action, unlawful conduct, or
unprofessional conduct,” any “dishonest or selfish
motive,” any “pattern of misconduct,” and any “lack of
good faith to make restitution or to rectify the
consequences of the misconduct involved”;

• “the degree of risk that a conduct will be repeated”;

• “results of previously submitted applications, for any
regulated profession or occupation”;

• “results from any action, taken by any professional
licensing agency”; and

• “any other information the Division or the [B]oard
reasonably believes may assist in evaluating the degree of
threat or potential threat to the public health, safety, or
welfare.”

Id. R156-1-302(2)(d), (j), (k), (n); see also id. R156-1-102(2)(a), (b), (c),
(i) (definition of “aggravating circumstances”). Ho does not
contest DOPL’s assertion that this regulation applies here.

¶15 Despite the apparent clarity of this regulation, Ho asserts
that the district court, in the context of the trial de novo,

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considered and took into account four pieces of evidence that
should have been excluded: (1) her application history prior to
obtaining her license in 2015; (2) the 2016 conduct that led to the
revocation of her license and a now-expunged criminal
conviction; (3) the 2017 conduct that led to the $1,500 fine; and
(4) Ho’s actions regarding the MOU. For the reasons discussed
below, we disagree with Ho’s contentions, and conclude that
governing statutes, regulations, and evidentiary rules permitted
the district court to consider all of the challenged matters.

A. Ho’s Pre-2015 Application History

¶16 Ho first claims that the court should not have considered
her application history from prior to 2015, including her two
failed applications from 2012 and 2014. Ho claims that “[a]ny
glitches which might have occurred prior to the issuance of [Ho]’s
massage therapy license were erased when her license was
granted,” thus rendering them irrelevant to the current inquiry.
Ho’s assertion is incorrect.

¶17 As already noted, the governing regulation provides that
“results of previously submitted applications” are “relevant to a
licensing decision.” Utah Admin. Code R156-1-302(2)(j). Ho’s
2012 and 2014 applications are “previously submitted
applications” for a massage therapy license, and therefore the
results of those applications may be considered in connection
with Ho’s current application for licensure. Ho makes no
meaningful argument to the contrary.

¶18 Instead, she asserts that any probative value that her pre-
2015 application history might have is substantially outweighed
by a risk of unfair prejudice. See Utah R. Evid. 403. 2 Under

2. When district courts “review by trial de novo” any “final
agency actions resulting from informal adjudicative
proceedings,” the “Utah Rules of Evidence apply” to the review
(continued…)

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applicable rules of evidence, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” Id. But that is not the case here.
The results of Ho’s pre-2015 applications have some probative
value: they are at least potentially indicative of the seriousness
with which Ho takes the licensure process and of her suitability
for a license. And while the probative value of this somewhat-
dated evidence might be fairly low, we see little if any risk of
unfair prejudice from consideration of this evidence, and Ho does
not identify any. “All effective evidence is prejudicial in the sense
of being damaging to the party against whom it is offered.” State
v. Barriga, 2019 UT App 178, ¶ 16, 454 P.3d 63 (quotation
simplified). “Unfair prejudice within the context of rule 403
means an undue tendency to suggest decision on an improper
basis.” Id. (quotation simplified). And consideration of Ho’s pre-
2015 application history does not lead the factfinder to make its
decision on “an improper basis,” since the results of previous
applications are by definition “relevant to a licensing decision.”
Utah Admin. Code R156-1-302(j). Certainly, the risk of unfair
prejudice does not substantially outweigh whatever probative
value this evidence might have.

¶19 Moreover, and in any event, the district court did not
appear to rely on this pre-2015 evidence in its decision. While it
expressly noted certain evidence it thought was material, it made
no mention of Ho’s pre-2015 application history. For this reason,
even if we were to assume, for purposes of the discussion, that the
court improperly admitted evidence of Ho’s pre-2015
applications, Ho cannot show that any such error was harmful to
her. See State v. Bowden, 2019 UT App 167, ¶ 20, 452 P.3d 503
(“Even if we were to conclude that the evidence here was
improperly admitted, that would not decide the issue. We still

proceedings. See Utah Code § 63G-4-402(1), (3). Neither party
suggests that the Utah Rules of Evidence were inapplicable to
evidentiary decisions the district court made during the trial.

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would have to determine whether the error was harmful.”
(quotation simplified)), cert. denied, 458 P.3d 749 (Utah 2020).
Thus, Ho cannot show that the court’s consideration of this
evidence “reasonably affect[ed] the likelihood of a different”
result. See id. ¶ 26.

¶20 Accordingly, we do not see any reversible error in the
court’s consideration of Ho’s pre-2015 application history. We
therefore reject Ho’s first argument.

B. The 2016 Incident

¶21 Next, Ho claims that the court should not have considered
the 2016 incident, the one that led not only to the administrative
revocation of Ho’s massage therapy license but also to a criminal
conviction that was later expunged. For purposes of our
discussion, we assume, without deciding, the soundness of Ho’s
assertion that—due to the subsequent expungement—the court
was not permitted to consider the fact that Ho had been convicted
of a crime related to the 2016 incident. 3 But even assuming the

3. DOPL asserts, with apparent colorable basis, that it is one of a
select group of government agencies that was—at least during the
time period relevant here (prior to a 2023 statutory change)—
permitted to consider even expunged criminal convictions. See
Utah Code § 77-40a-403(2)(b)(iv) (2022) (stating that “the
Department of Commerce,” which includes DOPL, “may receive
information contained in expunged records upon specific
request”). Other agencies also apparently allowed to receive and
consider “information contained in expunged records” include (a)
the Board of Pardons and Parole, (b) Peace Officer Standards and
Training, and (c) the Commission on Criminal and Juvenile
Justice “for purposes of investigating applicants for judicial
office.” Id. § 77-40a-403(2)(b)(i), (ii), (vii). Because we determine
that the district court’s approach—considering the underlying
(continued…)

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Ho v. Department of Commerce

soundness of this assertion, the court was permitted to consider
the underlying conduct as well as DOPL’s administrative findings
and penalties related to the incident.

¶22 The district court, in its written ruling, followed these
principles exactly: it did not consider the fact that Ho had been
criminally convicted, but it did consider “the facts and
circumstances underlying DOPL’s decision to revoke” Ho’s
license. Indeed, it correctly noted that “[t]he expungement of
[Ho]’s criminal record does not invalidate DOPL’s action in
revoking [Ho]’s license, nor remove from the [c]ourt’s
consideration the underlying facts relating to DOPL’s decision to
revoke [Ho]’s license in 2017.” We discern nothing improper with
the court’s consideration of the administrative findings and
related disciplinary action.

¶23 As already noted, the governing regulation allows the
court to consider the “results from any action, taken by any
professional licensing agency.” See Utah Admin. Code R156-1-
302(2)(k). The revocation of Ho’s license is surely an action taken
by a professional licensing agency, so the court was able to
consider the revocation, and the reasons for it, in making its
decision. Indeed, it is hard to imagine anything more relevant to
a licensing decision than whether, and why, an applicant’s
previous license was revoked.

¶24 And contrary to Ho’s assertion, the expungement statutes
do not prohibit DOPL or the court from considering the reasons
for the previous license revocation. Those statutes clarify that an
expungement order “may not . . . affect the enforcement of any
order or findings issued by an administrative body pursuant to

facts and the administrative findings, but not any criminal
conviction—was proper, we need not decide, in the context of this
case, whether DOPL was permitted to obtain and consider
records related to Ho’s expunged criminal conviction.

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the administrative body’s lawful authority prior to issuance of the
expungement order.” Utah Code § 77-40a-401(7)(b).

¶25 So, even assuming, for purposes of the discussion, that the
court was not permitted to take Ho’s criminal conviction into
account, the court was nevertheless permitted to consider the
conduct underlying the 2016 incident, as well as the findings from
the administrative proceedings that occurred in the wake of that
incident. The court’s handling of this issue was entirely proper.

C. The 2017 Incident

¶26 Ho next claims that the court should not have considered
the 2017 incident in which Ho was found to have practiced
massage therapy without a license. But again, the court can
consider “results from any action, taken by any professional
licensing agency.” Utah Admin. Code R156-1-302(2)(k). The
administrative findings and related discipline resulting from this
incident certainly fit into this category.

¶27 Ho pushes back, arguing that the court was statutorily
forbidden from considering the 2017 incident and related
findings. In particular, she points to a statute barring DOPL from
assessing “licensure sanctions . . . through a citation.” Utah Code
§ 58-1-502(2)(c). As Ho sees it, this statute means that “an
administrative citation and fine may not be used as a vehicle to
take action to deny, suspend or revoke a professional license.” We
find Ho’s interpretation of this statute unpersuasive.

¶28 In interpreting a statute, we begin with its text. State v.
Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682. “We read the plain
language of the statute as a whole, and interpret its provisions in
harmony with other statutes in the same chapter and related
chapters.” Id. (quotation simplified). “Where statutory language
is plain and unambiguous,” we will look no further. Bryner v.
Cardon Outreach, LLC, 2018 UT 52, ¶ 9, 428 P.3d 1096 (quotation
simplified). “A statute susceptible to competing interpretations

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may nevertheless be unambiguous if the text of the act as a whole,
in light of related statutory provisions, makes all but one of those
meanings implausible.” Id. ¶ 10 (quotation simplified).

¶29 The text of the statute on which Ho relies prevents
DOPL from “assess[ing]” “licensure sanctions . . . through a
citation.” Utah Code § 58-1-502(2)(c). “Through,” in this
context, is defined as “by means of.” Through, Merriam-
Webster, https://www.merriam-webster.com/dictionary/through
[https://perma.cc/KTV7-VBGG]. Thus, the statute prevents DOPL
from imposing a licensure sanction by means of a citation. But no
such thing happened here; during the citation proceedings
following the 2017 incident, Ho did not have a license—indeed,
that was the problem with her actions—and thus no licensure
sanctions were (or could have been) imposed. Instead, DOPL
imposed a $1,500 fine.

¶30 The text of the statute, by contrast, does not prohibit DOPL,
in a subsequent licensure proceeding, from considering the fact
that Ho received a citation and a fine some years earlier. Any
licensure sanction—including, potentially, denial of a licensure
application—is in that context imposed not “through a citation”
but, instead, by means of the licensure proceeding itself.

¶31 This interpretation comports not only with the text of the
relevant provision, but also with other sections of the same statute
that expressly allow DOPL to consider citation history as part of
a licensure decision. For example, our legislature has instructed
DOPL that “[t]he failure of an applicant for licensure to comply
with a citation after it becomes final is a ground for denial of
license.” Utah Code § 58-1-502(2)(h). In addition, DOPL is
statutorily authorized to “refuse to issue or renew, suspend,
revoke, or place on probation the license of a licensee who fails to
comply with a citation after it becomes final.” Id. § 58-1-502(2)(g).
And finally, we again note the language of governing regulations,
which allows DOPL, in a situation like this one, to consider the

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“results from any action, taken by any professional licensing
agency.” Utah Admin. Code R156-1-302(2)(k). We agree with
DOPL that, under Ho’s proffered interpretation of section 58-1-
502(2)(c), all these other statutory and regulatory provisions
“would be nonsensical and largely inoperable.”

¶32 For these reasons, we do not consider Ho’s interpretation
to be a plausible reading of the statute’s plain language. Nothing
in section 58-1-502(2)(c) prevented the court from considering the
conduct related to Ho’s 2017 citation in making its licensing
determination. As noted, the court was expressly authorized to
consider that citation. Thus, the court did not err in considering
the 2017 incident and related citation.

D. Ho’s Actions Regarding the MOU

¶33 Finally, Ho takes issue with the court’s handling of
evidence related to her behavior regarding the MOU, and her
challenge here takes two forms. First, she appears to challenge the
merits of the court’s finding that her actions in this regard were
“unreasonable and not in good faith.” Second, she asserts that the
court should not even have considered the evidence related to the
MOU at all. We reject both of Ho’s assertions.

¶34 First, to the extent that Ho believes the substance of the
court’s findings were in error, Ho cannot successfully challenge
those findings because she failed to provide us with a transcript
of either the trial or the court’s oral ruling. “The appellant is
required to include in the record a transcript of all evidence
relevant to a finding or conclusion that is being challenged on
appeal . . . .” Gines v. Edwards, 2017 UT App 47, ¶ 21, 397 P.3d 612
(quotation simplified), cert. denied, 398 P.3d 52 (Utah 2017). “[I]n
the absence of a transcript of a crucial proceeding, we will
presume that a trial court’s decision is reasonable” and
“supported by the evidence.” Id. Here, Ho did not include a
transcript of the bench trial, nor did she include a transcript of the
court’s oral ruling following the trial. We therefore do not know

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exactly what evidence the court considered in reaching its finding,
and we thus have no accurate way to evaluate, on appeal, the
merits of that finding. Accordingly, we presume the regularity of
the proceedings, including the soundness of the court’s finding
regarding the reasonableness of Ho’s actions related to the MOU.

¶35 Next, Ho asserts that—regardless of the soundness of the
court’s ultimate finding—the court should not have even
considered her actions related to the MOU. As she frames the
issue, the MOU was “abrogated” through the “non-disciplinary
surrender stipulation and order,” and the parties agreed that the
MOU should not be considered to be “a further finding of
unprofessional or unlawful conduct, nor is it disciplinary action
against” Ho. All of this is true, as far as it goes: we assume, for
purposes of the discussion, that the court was barred from
equating Ho’s abrogation of the MOU with “unprofessional or
unlawful conduct.” But there is no indication in the record that
the court so concluded.

¶36 To be sure, the court did consider—at least in passing—
Ho’s conduct related to the MOU. Yet we discern nothing
improper in these actions on the part of the court. The MOU was
the result of a licensure application Ho submitted to DOPL in May
2020; after discussing Ho’s application at a meeting attended by
Ho and her attorney, DOPL acted on that May application by
awarding Ho a provisional probationary license subject to the
terms and conditions of the MOU. A few weeks later, Ho asked
that the MOU be abrogated, thus terminating the proceedings
related to Ho’s May 2020 license application. And in the
abrogation stipulation, Ho acknowledged that she “intends to be
released from the requirements of the [MOU], reapply for
licensure, and, if denied, pursue her rights of review and appeal.”

¶37 In keeping with these intentions, Ho submitted a new
application just weeks later, in August 2020. That is the licensure
application at issue in this appeal. And as already noted,

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governing regulations allow DOPL, in connection with the
August 2020 licensure application, to consider the “results of
previously submitted applications.” Utah Admin. Code R156-1-
302(2)(j). Thus, for this reason alone, DOPL—and, by extension,
the court in a trial de novo—was permitted to consider the results
of the May 2020 application, the one that resulted in the MOU and
ended with the abrogation stipulation. 4

¶38 Moreover, even if we were to assume, for purposes of the
discussion, that the court did improperly consider Ho’s MOU-
related conduct, Ho would not be able to show that this error was
harmful. “We will not reverse a judgment merely because there
may have been error; reversal occurs only if the error is such that
there is a reasonable likelihood that, in its absence, there would
have been a result more favorable to the complaining party.”
Trapnell & Assocs., LLC v. Legacy Resorts, LLC, 2020 UT 44, ¶ 62 n.8,
469 P.3d 989 (quotation simplified). In our view, there is no
reasonable likelihood of a different result in a trial in which the
court does not consider Ho’s MOU-related conduct. As we read
the record, the MOU was only one rather secondary part of the
evidence the court considered in making its determination. The

4. We offer no opinion as to whether the court would have been
able to consider the MOU-related conduct under other statutory
or regulatory provisions. For instance, it is permissible to consider
“aggravating circumstances,” including “lack of good faith to
make restitution or to rectify the consequences of the misconduct
involved.” Utah Admin. Code R156-1-102(2)(i), -302(2)(a). It is
also permissible to consider “any other information the Division
or the [B]oard reasonably believes may assist in evaluating the
degree of threat or potential threat to the public health, safety, or
welfare.” Id. R156-1-302(2)(n). But because the conduct squarely
falls within the “previously submitted applications” category, see
id. R156-1-302(2)(j), we need not further concern ourselves with
whether other provisions might also allow the court to consider
this conduct.

20210940-CA 16 2023 UT App 87
Ho v. Department of Commerce

two most consequential pieces of evidence before the court were
the 2016 incident—in which DOPL revoked Ho’s license for
agreeing to commit an “illicit sex act” in connection with
providing massage therapy—and the 2017 incident—in which Ho
was found to have practiced massage therapy without a license.
Given those two items of evidence, we consider it extremely
unlikely that the court would have determined that Ho was
entitled to an unrestricted license, even if it had not considered
her 2020 conduct related to the MOU.

¶39 In short, we discern no improprieties in the court’s
consideration of Ho’s MOU-related conduct.

CONCLUSION

¶40 Under applicable statutes, regulations, and evidentiary
rules, the district court was permitted to consider Ho’s application
history and administrative disciplinary record in making its
decision. We therefore reject Ho’s assertions that the court
improperly considered certain items of evidence in reaching its
determination that Ho was not entitled to an unrestricted license.

¶41 Affirmed.

20210940-CA 17 2023 UT App 87