Zen Healing Arts v. Department of Commerce

2018 UT App 25

THE UTAH COURT OF APPEALS

ZEN HEALING ARTS LLC, JEFF STUCKI, AND LEISA METCALF,
Appellants,
v.
DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND
PROFESSIONAL LICENSING,
Appellee.

Opinion
No. 20160241-CA
Filed February 8, 2018

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.

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
Zen Healing Arts v. Department of Commerce

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

1. Although we determine that Appellants did not have standing
to challenge the Rule in the district court, we nevertheless have
jurisdiction over the appeal. See Nielson v. Gurley, 888 P.2d 130,
133 n.3 (Utah 1994).

2. DOPL asserted in its brief on appeal that Beaches Bodyworks
is not currently operating as a business. Appellants’ reply brief
did not address whether Beaches Bodyworks is still in operation.

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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

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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”).

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¶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 (following the Jenkins three-step inquiry and holding that
even though Sierra Club failed to satisfy the traditional standing
test, Sierra Club had standing “under the alternative standing
test” as set forth under Jenkins).

20160241-CA 5 2018 UT App 25
Zen Healing Arts v. Department of Commerce

¶10 First, for traditional standing, Appellants must show that
they were “adversely affected by governmental actions,” which
would establish their personal stake in the controversy, and
“whether the relief requested is substantially likely to redress the
injury claimed.” See Jenkins, 675 P.2d at 1150. This is the same
showing required by section 63G-3-602, which allows “any
person aggrieved by an administrative rule [to] obtain judicial
review of the rule by filing a complaint.” Utah Code Ann. § 63G-
3-602 (LexisNexis 2016); see also Salt Lake City Corp. v. Property
Tax Div. of Utah State Tax Comm’n, 1999 UT 41, ¶ 11, 979 P.2d 346
(referencing an earlier version of Utah Code section 63G-3-602
and concluding that the term “aggrieved” used therein, does not
carry “any special meaning beyond that which inheres in the
traditional principle that claimants must be able to show that
[they have] suffered some distinct and palpable injury that gives
[them] a personal stake in the outcome”(alterations in original)
(citation and internal quotation marks omitted)). Here,
Appellants were cited and fined for the unlawful practice of
massage therapy, but this was the result of a violation of the
MTPA and not as a result of a violation of the Rule. 3 Therefore,
they have not demonstrated that they have been harmed by the
Rule.

¶11 Appellants further implicitly assert that they will be
adversely affected by the Rule as individuals, not as an employer
or employee, by arguing that innocent or innocuous touching
would be a violation of the Rule and that “something as simple
as a romantic partner who caresses her significant other,
followed by that partner buying her dinner to show

3. The Department of Commerce’s findings of fact and
conclusions of law specifically noted: “This holding is not a
retroactive application of [the Rule] as [Appellants] argue, but is
based on the existing definition of ‘practice of massage therapy’
in Subsection 58-47b-102(6).”

20160241-CA 6 2018 UT App 25
Zen Healing Arts v. Department of Commerce

appreciation, runs afoul of the law.” 4 But this argument places
Appellants in a position “identical to that of the citizenry at
large.” See Jenkins, 675 P.2d at 1152 (providing that when a
claimant’s position “is identical to that of the citizenry at
large . . . he lacks standing to pursue [the] cause of action”).

¶12 Because Appellants have not satisfied the first step, we
next address whether Appellants are appropriate parties to
challenge the Rule. Utah Chapter of Sierra Club, 2006 UT 74,
¶¶ 41–42 (explaining that an appropriate party is one who “has
the interest necessary to effectively assist the court in developing
and reviewing all relevant and legal factual questions” (citation
and internal quotation marks omitted)). This requires courts to
determine “whether there is anyone who has a greater interest in
the outcome of the case than [the claimant].” See Jenkins, 675 P.2d
at 1150.

¶13 In Jenkins, a Utah citizen and taxpayer sought declaratory
judgment “concerning certain aspects of the educational system
of the state of Utah and five of its school districts.” Id. at 1147. In
challenging these aspects of the educational system, Jenkins
relied on his general status as a “citizen, taxpayer, registered
voter and parent” to assert them but made “no claim of a
particularized injury to himself by virtue of the claimed wrong.”
Id. at 1151. Jenkins requested that he be granted standing “under
the rationale that he raise[d] questions of great public interest
and societal impact.” Id. But our supreme court declined to grant

4. Appellants have not supported this assertion with any
evidence. To the contrary, Appellants directed us to the
deposition of DOPL’s bureau manager who responded to this
assertion by stating that the Rule “defin[es] manipulation as
contact with movement of the clothed or unclothed body as it
relates to the practice of massage therapy, not as it relates to
touching.”

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Zen Healing Arts v. Department of Commerce

him standing because his “claim for standing on [the issue was]
predicated solely on the grounds of its public importance,” and
the pleadings revealed that there were “other potential plaintiffs
with a more direct interest in this particular question,” such as
the residents of the school districts that Jenkins named as
defendants. Id. Although Jenkins was a parent, our supreme
court held that his “position in this situation [was] identical to
that of the citizenry at large” and it would “not issue an advisory
opinion on this question merely to relieve [Jenkins’s]
discomfort.” Id. at 1151–52.

¶14 Appellants’ pleadings specifically identified other
potential plaintiffs with a more direct interest in challenging the
Rule and who are more likely to be cited for violating the MTPA
with the Rule now in place. 5 See id. at 1151. Throughout the
administrative proceedings, the district court proceedings, and
in their briefs on appeal, Appellants argue that the Rule was
created with the intent to target escorts and other sexually
oriented businesses. None of the Appellants have identified
themselves as escorts, and Beaches Bodyworks was not
identified as a sexually oriented business.

5. Although Appellants’ brief pointed out that Stucki “submitted
written comments objecting to [the Rule]” and “appeared at the
hearing at which [the Rule] was discussed and adopted,” the
written comments do not provide any more reason to suggest
that Appellants would be personally aggrieved by the Rule.
Appellants failed to explain how these comments, which mimic
the arguments made in their briefs on appeal, showed that they
had a personal stake in the promulgation of the Rule to give
them standing to seek declaratory judgment concerning the
Rule’s validity. See Packer v. Utah Att’y Gen’s Office, 2013 UT App
194, ¶ 20, 307 P.3d 704.

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Zen Healing Arts v. Department of Commerce

¶15 It appears that Appellants attempted to challenge the
Rule on behalf of escorts and sexually oriented businesses. “As a
general rule, courts do not permit a party to assert the
constitutional rights of a third party.” Shelledy v. Lore, 836 P.2d
786, 789 (Utah 1992) (citing Barrows v. Jackson, 346 U.S. 249, 255
(1953)). Appellants also have not met the exception to this
general rule because they have not asserted “the presence of
some substantial relationship . . . with the third parties”; they
have not shown that it would be impossible for those third
parties to assert “their own constitutional rights”; and they have
not shown “the need to avoid a dilution of [the] third parties’
constitutional rights” if standing were not extended. See id. at
789. By identifying potential plaintiffs with a more direct interest
in challenging the Rule who are likely to provide better, more
concrete facts for the district court to make its determination
about the constitutionality of the Rule rather than basing its
determination on mere hypothetical situations, Appellants have
shown that they are not the appropriate parties.

¶16 “If the party is not an appropriate party, the court’s
inquiry ends and standing is denied.” Utah Chapter of Sierra Club,
2006 UT 74, ¶ 41. When a “claim for standing . . . is predicated
solely on the grounds of its public importance, we will not grant
[the party] standing when the pleadings reveal other potential
plaintiffs with a more direct interest in this particular question.”
Id. ¶ 40 (omission in original) (citation and internal quotation
marks omitted); see also Jenkins, 675 P.2d at 1151 (declining to
grant standing to a plaintiff who relied on his “general status as
a taxpayer and citizen and [did] nothing to distinguish him[self]
from any member of the public at large” when seeking
declaratory judgment concerning “certain aspects of the
educational system of the state of Utah and five of its school
districts,” none of which he was a resident).

¶17 Appellants have not shown that they are the appropriate
parties to challenge the Rule, and we therefore do not address

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Zen Healing Arts v. Department of Commerce

the third step of the inquiry. See Utah Chapter of Sierra Club, 2006
UT 74, ¶ 41. Appellants clearly identified appropriate potential
plaintiffs with a more direct interest in the outcome of
challenging the Rule—escorts and sexually oriented businesses. 6
We therefore will not invoke the standing doctrine of “great
public interest and societal impact” to consider the merits of
their appeal. See Jenkins, 675 P.2d at 1151. And although we
decline to extend standing in this case, we note that the Rule
could be challenged in the future by appropriate plaintiffs. See
Utah Chapter of Sierra Club, 2006 UT 74, ¶ 36.

¶18 We conclude Appellants did not have standing to
challenge the Rule in the district court and vacate the court’s
declaratory judgment for lack of jurisdiction.

6. This is not an exhaustive list of potential appropriate plaintiffs
to challenge the Rule.

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