Ho v. Department of Commerce

2020 UT App 37
THE UTAH COURT OF APPEALS
JESSICA HO,
Petitioner,
v.
DEPARTMENT OF C OMMERCE, DIVISION OF
O CCUPATIONAL AND P ROFESSIONAL LICENSING,
Respondent.
Opinion
No. 20190087-CA
Filed March 12, 2020
Original Proceeding in this Court
W. Andrew McCullough, Attorney for Petitioner
Sean D. Reyes, Stanford E. Purser, and Laurie L.
Noda, Attorneys for Respondent
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
F ORSTER concurred.
MORTENSEN, Judge:
¶1 	Although Jessica Ho previously had a license to engage in
massage therapy, she had no such license the day an investigator
(Investigator) 	from 	the 	Division 	of 	Occupational 	and
Professional Licensing (DOPL) entered the establishment where
Ho worked. As found by DOPL, Ho confirmed that Investigator
wanted a massage, stated prices based on the differing massage
durations, indicated that she personally would be conducting
the massage, and commenced massaging Investigator’s arm. Ho
was cited for these acts. Ho challenged the citation, but she did
not prevail. She then sought agency review from the Department
of Commerce (Department), which upheld her citation and fine.
Ho now seeks judicial review, arguing that her constitutional

Ho v. Dep’t of Commerce
20190087-CA 	2 	2020 UT App 37
rights to freedom of speech and due process were violated. We
decline to disturb the Department’s order.
BACKGROUND1
The Investigation and Citation
¶2 	After receiving reports from the Salt Lake County Health
Department that individuals at a massage establishment were
likely providing massages without a license, Investigator went to
inspect the business. When he walked into the massage business,
Investigator was greeted by Ho. She asked Investigator, “Are
you here for a massage?” Investigator said, “Yes.” Ho then
directed him to another room and followed him there.
¶3 	Once the two were inside the massage treatment room,
Ho closed the door, dimmed the lights, and said she would give
Investigator a thirty-minute massage for $50 or an hour-long
massage for $90. Investigator then asked Ho, “Are you going to
be giving me the massage?” Ho confirmed that she would be. As
they talked, Ho took Investigator’s right arm and started to rub
it up and down with her thumb and fingers on both hands. As
Ho continued to rub Investigator’s arm, Investigator inquired,
“Do you have a license?” Looking startled, Ho immediately
stopped 	rubbing 	Investigator’s 	arm, 	stepped 	back, 	and
exclaimed, 	“Who 	are 	you?” 	Investigator 	disclosed 	that 	he
worked for DOPL and asked to see Ho’s massage license. Ho
immediately responded, “I did not offer you a massage.”
¶4 	Investigator then asked Ho for her driver license, which
she gave him. Investigator called other DOPL personnel at the
1. 	“We 	state 	the 	facts 	and 	all 	legitimate 	inferences 	drawn
therefrom in the light most favorable to the agency’s findings.”
ABCO Enters. v. Utah State Tax Comm’n, 2009 UT 36, ¶ 2 n.1, 211
P.3d 382 (cleaned up).

Ho v. Dep’t of Commerce
20190087-CA 	3 	2020 UT App 37
DOPL office to determine whether Ho was a licensed massage
therapist. Ho did not have a current massage license; it had been
previously revoked.
¶5 	Several 	weeks 	later, 	DOPL 	mailed 	Ho 	a 	citation 	for
“practicing or engaging in, representing oneself to be practicing
or engaging in or attempting to practice” massage therapy
without a license under Utah Code section 58-1-501(1)(a).2 Ho
denied any wrongdoing and requested a hearing to challenge
the citation.
The Administrative Adjudication
¶6 	A formal hearing was held before the Utah Board of
Massage 	Therapy 	(Board) 	and 	an 	administrative 	law 	judge
(ALJ). During opening statements, DOPL’s attorney explained
that the owner of the massage business acknowledged that he
was aware that Ho had been charged with prostitution, and that
her license had been revoked through a prior hearing due to that
charge. Ho objected. The Board was then excused from the
hearing room. Outside the presence of the Board, Ho explained
that 	the 	prostitution 	charge 	had 	been 	expunged,3 	and 	she
requested an outright dismissal of the citation. Counsel for
DOPL responded that she was unaware of the expungement,
and that the prostitution charge was relevant, as it was the
reason for the revocation of Ho’s license. The ALJ ruled that the
hearing 	would 	proceed, 	but 	that 	no 	further 	reference 	to
prostitution should occur. Ho stipulated that her license had
2. In all instances that we refer to the Utah Code, we are
referring to the 2016 version, which was in effect at the relevant
times.
3. 	We 	generally 	endeavor 	not 	to 	refer 	to 	an 	individual’s
expunged criminal record. But because Ho raises the expunged
charge as an issue and because it is at the heart of her due
process argument, we address it to the extent necessary.

Ho v. Dep’t of Commerce
20190087-CA 	4 	2020 UT App 37
been revoked. The ALJ then invited the Board to re-enter the
hearing room and admonished the Board not to consider the
prostitution charge:
I’m asking you to completely disregard anything
about 	the 	subject 	of 	prostitution. 	There 	is 	no
evidence 	before 	you 	about 	that 	subject, 	none
whatsoever. . . . [The parties] have agreed that [Ho]
was once licensed as a massage therapist, and that
she is no longer licensed. . . . [E]very one of the
members of the [B]oard here was on the [B]oard
when that hearing took place. We’re not going to
rely upon the reasons why or whatever.
¶7 	The parties proceeded to present their cases. Having
considered 	the 	evidence, 	the 	Board 	found 	in 	relevant 	part
that “[a]n offer and advertisement of massage therapy services
was made by” Ho, “who orally confirmed with [Investigator]
that she was the individual who was going to provide the
massage.” The Board also found that Ho “previously had a
license to provide massage therapy, but such license had been
revoked 	by 	action 	of 	the 	Board 	in 	a 	prior 	administrative
proceeding.” Based on its findings of fact, the Board concluded
that 	Ho 	committed 	an 	unlawful 	act 	in 	two 	ways: 	(1) 	she
provided, offered, or advertised to Investigator a paid service
using 	the 	term 	massage 	under 	Utah 	Code 	section 	58-47b-
102(6)(l), 	and 	(2) 	she 	“practiced 	massage 	therapy 	by 	the
systematic manual manipulation of the soft tissue of the body (in
this case, the arm of [Investigator]), as provided” in section 58-
47b-102(6)(b)(vii). The Board finally concluded that Ho violated
section 58-1-501(1)(a)(i)–(ii), which prohibits engaging in those
actions without a license.
¶8 	The Board ultimately recommended that the director of
DOPL assess Ho a fine of $1,500. Several days later, the director
reviewed and adopted the Board’s recommend findings and
conclusions in their entirety and imposed the fine.

Ho v. Dep’t of Commerce
20190087-CA 	5 	2020 UT App 37
¶9 	The next month, Ho requested an agency review of the
director’s order from the Department. In her request, Ho made
several legal arguments; however, she did not challenge any of
the 	Board’s 	factual 	findings. 	The 	Department 	adopted 	and
recited the factual findings verbatim.
¶10 	The Department then addressed Ho’s legal arguments,
rejected them all, and upheld the fine. First, the Department
concluded 	that 	two 	of 	Ho’s 	procedural 	arguments 	were
unpreserved: (1) that the ALJ unlawfully delegated his assigned
functions to the Board, which should not have made conclusions
of fact and law, and (2) that the Board had a prejudicial conflict
of interest as “an institutionalized agent of [DOPL].” Then, the
Department rejected Ho’s argument that the reference to her
previous prostitution charge required dismissal, concluding that
Ho failed to show prejudice. Finally, the Department agreed
with the Board’s conclusions that Ho’s actions provided two
independent grounds proving that she engaged in unlawful
conduct: she “took . . . Investigator to a massage room, offered to
personally provide him a massage, and told him the rates for
different 	sessions,” 	and 	she 	“provided 	systematic 	manual
manipulation of soft tissue, here . . . Investigator’s arm.”
¶11 	Ho seeks judicial review.
ISSUES AND STANDARDS OF REVIEW
¶12 	There are two issues for us to address. First, we review
whether Utah Code section 58-47b-102(6)(l) facially violates Ho’s
right to freedom of speech under the First Amendment to the
United 	States 	Constitution.4 	“The 	interpretation 	and
4. Ho challenges the Department’s conclusion that her actions
met the definition of engaging in the practice of massage therapy
for a fee under Utah Code section 58-47b-102(6)(b)(vii)—“the
systematic manual or mechanical manipulation of the soft tissue
(continued…)

Ho v. Dep’t of Commerce
20190087-CA 	6 	2020 UT App 37
constitutionality of a statute are questions of law that we review
for correctness.” Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 5, 416
P.3d 635.
¶13 	Second, we address whether the Board violated Ho’s right
to due process—specifically, a fair hearing. As we explain, Ho
failed to preserve two of her arguments on this issue. However,
because she preserved her final argument—that the reference to
her previous prostitution charge unfairly prejudiced the Board
against 	her—we 	review 	it. 	“Constitutional 	issues, 	including
questions regarding due process, are questions of law that we
review for correctness.” Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).
“The ultimate question when faced with an allegation of a biased
decision maker is whether the appearance of unfairness is so
plain 	that 	we 	are 	left 	with 	the 	abiding 	impression 	that 	a
reasonable person would find the hearing unfair.” Nelson v. City
of Orem, 2013 UT 53, ¶ 36, 309 P.3d 237 (cleaned up).
ANALYSIS
I. Freedom of Speech
¶14 	Ho does not challenge the Department’s conclusion that
her actions met the definition of unlawfully practicing massage
by “providing, offering, or advertising a paid service using the
term massage” without a license under Utah Code section 58-
47b-102(6)(l). Her challenge instead rests on her contention that
(…continued)
of the body for” one of the included purposes. However, we
need not and do not address her contention regarding this
statutory provision because we conclude that section 58-47b-
102(6)(l)—“providing, offering, or advertising a paid service
using the term massage”—is constitutional and provides an
independent ground to support Ho’s fine.

Ho v. Dep’t of Commerce
20190087-CA 	7 	2020 UT App 37
section 58-47b-102(6)(l) facially violates her right to freedom of
speech 	under 	the 	First 	Amendment 	to 	the 	United 	States
Constitution. 	“When 	addressing 	a 	challenge 	to 	the
constitutionality of a statute, we presume the statute to be
constitutional, 	resolving 	any 	reasonable 	doubts 	in 	favor 	of
constitutionality.” South Salt Lake City v. Maese, 2019 UT 58, ¶ 8,
450 P.3d 1092 (cleaned up); see also Vega v. Jordan Valley Med.
Center, LP, 2019 UT 35, ¶ 12, 449 P.3d 31 (“We presume that
legislative enactments are constitutional and where possible will
construe 	them 	as 	complying 	with 	our 	state 	and 	federal
constitutions.”). “Moreover, in a facial challenge to a statute, . . .
we will only overturn the will of the legislature when the statute
is so constitutionally flawed that no set of circumstances exists
under which the statute would be valid.” Vega, 2019 UT 35, ¶ 12
(cleaned up). Because we conclude that section 58-47b-102(6)(l) is
constitutional as applied to Ho, her facial challenge fails. Id.;
State v. Lafferty, 2001 UT 19, ¶ 78, 20 P.3d 342 (explaining that the
statute was valid as applied to the defendant, and therefore “his
facial challenge must fail a fortiori”).
¶15 	Not all speech is treated equally in the eyes of the law.
Some speech, such as that regarding “‘politics, nationalism,
religion, or other matters of opinion,’” is often held in high
repute and receives significant protection. Janus v. American
Fed’n of State, County, & Mun. Emps., Council 31, 138 S. Ct. 2448,
2463 (2018) (quoting West Va. Board of Educ. v. Barnette, 319 U.S.
624, 642 (1943)). Some forms of speech, such as commercial
speech, 	receive 	an 	intermediate 	level 	of 	protection. 	Central
Hudson Gas & Elec. Corp. v. Public Service Comm’n of N.Y., 447 U.S.
557, 566 (1980). Other categories of speech receive minimal
protection. See, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U.S.
260, 273 (1988) (applying the rational basis test to educators’
editorial control over “school-sponsored expressive activities”).
And 	finally 	some 	forms 	of 	speech 	receive 	no 	protection
whatsoever. E.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 340
(1974) (defamation); Brandenburg v. Ohio, 395 U.S. 444, 447–48
(1969) (incitement); Schenck v. United States, 249 U.S. 47, 52 (1919)
(explaining that the “most stringent protection of free speech

Ho v. Dep’t of Commerce
20190087-CA 	8 	2020 UT App 37
would not protect a man in falsely shouting fire in a theatre and
causing a panic”). Thus, one of the crucial first steps in assessing
a restriction on speech is determining the category in which the
type of speech fits.
¶16 	The speech at issue in this case is commercial speech.
There is a “commonsense distinction between speech proposing
a commercial transaction, which occurs in an area traditionally
subject to government regulation, and other varieties of speech.”
Central 	Hudson, 	447 	U.S. 	at 	562 	(cleaned 	up). 	Speech 	is
commercial when it “propose[s] a commercial transaction” or
relates solely to the parties’ economic interests. Board of Trs. of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 473–74 (1989) (cleaned
up); see also Central Hudson, 447 U.S. at 561 (explaining that
commercial speech is “expression related solely to economic
interests of the speaker and its audience”). Ho clearly proposed a
commercial transaction when she recited the varying prices of
the massages and confirmed that she would be providing the
massage 	to 	Investigator, 	especially 	considering 	that 	this 	all
occurred in a commercial massage establishment. Moreover,
with our emphasis, section 58-47b-102(6)(l) restricts “providing,
offering, or advertising a paid service using the term massage.”
¶17 	Having determined that the speech at issue is commercial,
the 	four-part 	test 	developed 	in 	Central 	Hudson 	applies 	to
determine whether the restriction on commercial speech violates
the First Amendment. 447 U.S. at 566. Those parts consist of (1)
whether 	the 	expression 	concerns lawful 	activity 	and 	is not
misleading, (2) “whether the asserted governmental interest is
substantial,” (3) “whether the regulation directly advances the
governmental interest asserted,” and (4) whether the regulation
is more extensive than necessary. Id.
¶18 	Here, 	Ho’s 	claim 	that 	section 	58-47b-102(6)(l) 	is
unconstitutional fails at the initial step of this analysis because
her speech was misleading. When Ho explicitly stated that she
would provide the massage to Investigator for one of the two
prices, she inaccurately implied that she was licensed and could

Ho v. Dep’t of Commerce
20190087-CA 	9 	2020 UT App 37
lawfully do so. This is precisely what the statute was designed to
prevent—scenarios in which Utah consumers are misled into
believing that unlicensed individuals are qualified to practice
massage therapy. Thus, we have no trouble rejecting Ho’s claim
that her constitutional right to freedom of speech was violated.
Id. at 563 (“The government may ban forms of communication
more likely to deceive the public than to inform it . . . .”); see also
In re R.M.J., 455 U.S. 191, 203 (1982) (“Misleading advertising
may be prohibited entirely.”); Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)
(“Untruthful speech, commercial or otherwise, has never been
protected 	for 	its 	own 	sake.”); 	Accountant’s 	Society 	of 	Va. 	v.
Bowman, 860 F.2d 602, 606 (4th Cir. 1988) (“The ban on the use of
‘public accountant’ or ‘PA’ by unlicensed accountants, in [the
statute], 	is 	a 	constitutionally 	permissible 	regulation 	of
misleading commercial speech . . . .”).
¶19 	Nevertheless, 	Ho 	argues 	that 	the 	statute
unconstitutionally prohibits the mere use of the word massage in
any 	context. 	But 	this 	greatly 	misconstrues 	the 	statute 	by
overlooking the “paid service” part of the statutory definition.
Hence, no mere mention of the word massage is proscribed.
Instead, only “providing, offering, or advertising a paid service using
the term massage” is prohibited, as the statute says. Utah Code
Ann. 	§ 	58-47b-102(6)(l) 	(LexisNexis 2016) 	(emphasis added).
What’s more, section 58-47b-304(1)(l) exempts “an individual
performing gratuitous massage” from the licensure requirement.
So, not even offering a free massage without a license—let alone
mentioning the word massage—is prohibited. In short, Ho’s
argument is unpersuasive because it mischaracterizes the scope
of the statute. We find no constitutional infirmity therein.5
5. Beyond this misreading of the statute, Ho passingly argues
that 	the 	provision 	in 	its 	correct 	construction 	is 	overbroad.
However, 	“the 	overbreadth 	doctrine 	does 	not 	apply 	to
commercial speech.” Village of Hoffman Estates v. Flipside, Hoffman
(continued…)

Ho v. Dep’t of Commerce
20190087-CA 	10 	2020 UT App 37
¶20 	Accordingly, we conclude that section 58-47b-102(6)(l)
does not violate Ho’s right to freedom of speech, and we decline
to disturb the Department’s order on this basis.
II. Due Process
¶21 	Ho 	advances 	three 	arguments 	related 	to 	a 	lack 	of
procedural fairness at her hearing. She first asserts that she was
denied 	her 	right 	to 	due 	process 	when 	the 	Board 	decided
questions of both fact and law. She then posits that she did not
receive 	a 	neutral 	fact-finder 	because 	the 	Board 	“is 	an
institutionalized agent” of DOPL and the “conflict of interest is
obvious” and “inherently unfair.” Ho finally argues that she
was 	unfairly 	prejudiced 	by 	the 	reference 	DOPL’s 	attorney
made in her opening statement that Ho had been charged
with prostitution. Below, we initially explain why Ho’s first
and second arguments are unpreserved. Then, we explain why
Ho was not prejudiced by the reference to her prostitution
charge.
A. 	Preservation
¶22 	“[T]he 	preservation 	rule 	applies 	to 	appeals 	from
administrative 	agencies” 	in 	two 	different 	situations: 	“when
mandated by statute” or “when not mandated by statute, . . .
[but] the issue raised on appeal could have been resolved in the
administrative setting.” ABCO Enters. v. Utah State Tax Comm’n,
2009 UT 36, ¶¶ 10–11, 211 P.3d 382; see also Badger v. Brooklyn
Canal Co., 966 P.2d 844, 847 (Utah 1998) (“[A] party seeking
review of agency action must raise an issue before that agency to
preserve the issue for further review.”); Kunej v. Labor Comm’n,
(…continued)
Estates, Inc., 455 U.S. 489, 497 (1982); accord Board of Trs. of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 481 (1989); National Council for
Improved Health v. Shalala, 122 F.3d 878, 882 n.6 (10th Cir. 1997).
Therefore, Ho’s argument is legally misplaced.

Ho v. Dep’t of Commerce
20190087-CA 	11 	2020 UT App 37
2013 UT App 172, ¶ 23, 306 P.3d 855 (“We have consistently held
that 	issues 	not 	raised 	in 	proceedings 	before 	administrative
agencies are not subject to judicial review except in exceptional
circumstances.” 	(cleaned 	up)). 	Requiring 	parties to 	preserve
issues promotes efficiency and fairness to both the adjudicative
tribunal and the parties. See Tschaggeny v. Milbank Ins. Co., 2007
UT 37, ¶ 20, 163 P.3d 615.
¶23 	Here, 	the 	parties 	do 	not 	point 	us 	to 	any 	applicable
statutory 	command 	to 	preserve 	issues; 	nevertheless, 	Ho’s
arguments fall under the second administrative preservation
category—i.e., 	the 	issues 	could 	have 	been 	resolved 	below.
See Nielsen v. Labor Comm’n, 2020 UT App 2, ¶ 9 n.1. At the time
of 	the 	hearing, 	both 	the 	Division 	of 	Occupational 	and
Professional Licensing Act and the Administrative Procedures
Act allowed the Board, the ALJ, and the director of DOPL to
preside over the hearing in the manner in which they did in this
case.6 	Utah 	Code 	Ann. 	§ 	58-1-109(1)–(4) 	(establishing 	the
presiding 	officers 	and 	their 	duties 	in 	occupational 	and
professional licensing administrative proceedings); id. § 58-1-
202(1)(f) (dictating that the duties of boards include “acting as
presiding 	officer 	in 	conducting 	hearings 	associated 	with
adjudicative proceedings and in issuing recommended orders
when so designated by the director”); id. § 63G-4-103(1)(h)(i)
(“‘Presiding officer’ means an agency head, or an individual or
body of individuals designated by the agency head, by the
agency’s 	rules, 	or 	by 	statute 	to 	conduct 	an 	adjudicative
proceeding.”).
¶24 	Moreover, those Acts provided the means for a different
presiding officer to be appointed, such as the ALJ. Id. § 58-1-
109(1)–(3) (establishing the regular presiding officer “[u]nless
otherwise specified by statute or rule . . . [or] the director”); id.
§ 63G-4-103(1)(h)(ii) 	(“If 	fairness 	to 	the 	parties 	is 	not
compromised, an agency may substitute one presiding officer for
6. The relevant statutes remain the same.

Ho v. Dep’t of Commerce
20190087-CA 	12 	2020 UT App 37
another during any proceeding.”). Ho could have but did not
object to these roles under existing law at her hearing. Thus, Ho
failed to preserve her first two procedural arguments for judicial
review, and we therefore decline to disturb the Department’s
order on these bases.
B. 	Prejudice
¶25 	On 	judicial 	review 	of 	administrative 	proceedings, 	a
petitioner 	bears 	the 	burden 	of 	demonstrating 	that 	she 	was
substantially prejudiced. Id. § 63G-4-403(4); see also Covey v.
Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553 (explaining that the
party seeking review “has the burden of demonstrating an error
was prejudicial” (cleaned up)). “An error will be harmless if it is
sufficiently inconsequential that there is no reasonable likelihood
that 	the 	error 	affected 	the 	outcome 	of 	the 	proceedings.”
Macfarlane v. Career Service Review Office, 2019 UT App 133, ¶ 42,
450 P.3d 87 (cleaned up).
¶26 	Here, 	Ho 	has 	failed 	to 	satisfy 	her 	burden 	of
demonstrating 	substantial 	prejudice. 	There 	is 	no 	evidence
anywhere 	in 	the 	record 	that 	the 	Board 	considered 	the
prostitution charge in issuing its recommended order. In fact, in
DOPL’s presentation of its case, the word prostitution was
uttered only once in 	a single reference to Ho’s charge for
prostitution during the opening statement. The topic was never
mentioned again by DOPL.
¶27 	And after Ho objected to the prostitution reference—
outside 	the 	presence 	of 	the 	Board—the 	ALJ 	then
directly instructed the Board “to completely disregard” and
not 	rely 	upon 	the 	prostitution 	charge 	at 	all, 	noting 	that
Ho 	stipulated 	that 	her 	license 	had 	been 	revoked. See 	State
v. 	Padilla, 	2018 	UT 	App 	108, 	¶ 	26, 	427 	P.3d 	542
(“Curative instructions are ordinarily presumed on appeal to be
effective.” (cleaned up)). This presumptively effective instruction
appears to have been dutifully followed as well because the
Board’s recommended order did not make any reference to the

Ho v. Dep’t of Commerce
20190087-CA 	13 	2020 UT App 37
charge.7 Finally, all the members of the Board were members of
the Board during the proceeding 	involving the prostitution
charge, so the reference would not have been news to the Board
members and thus was not reasonably likely to have changed
how the Board assessed the hearing.8
¶28 	Accordingly, because Ho has not persuaded us that she
has 	been 	substantially 	prejudiced, 	and 	there 	is 	not 	an
“appearance of unfairness . . . so plain that we are left with the
abiding impression that a reasonable person would find the
hearing unfair,” Nelson v. City of Orem, 2013 UT 53, ¶ 36, 309 P.3d
237 (cleaned up), we decline to disturb the Department’s order
on this basis.
CONCLUSION
¶29 	We conclude that Utah Code section 58-47b-102(6)(l) is
not unconstitutional as Ho claims. We also conclude that Ho
failed to preserve two of her due process arguments and failed
to 	prove 	prejudice 	on 	her 	final 	due 	process 	argument.
Accordingly, we decline to disturb the Department’s order.
7. Ho takes issue with the language the Board used in its final
order: 	“[Ho] 	previously 	had 	a 	license 	to 	provide 	massage
therapy, but such license had been revoked by action of the
Board in a prior administrative proceeding.” However, as is
evident from the Board’s finding, it did not even mention the
prostitution charge. This in no way demonstrates Ho’s claimed
prejudice.
8. Again, although Ho knew and could have objected to the fact
that these were the same Board members from her previous
proceeding, she failed to do so and has not preserved the issue.
See supra ¶¶ 22–24.