Knoblett v. Alabama Bd. of Massage Therapy

• Decision Date: 09 March 2007
• Docket Number: 2050575.
• Citation: 963 So.2d 640
• Parties: Melvin E. KNOBLETT v. ALABAMA BOARD OF MASSAGE THERAPY.
• Court: Alabama Court of Civil Appeals

963 So.2d 640

Melvin E. KNOBLETT v. ALABAMA BOARD OF MASSAGE THERAPY.

2050575.

Court of Civil Appeals of Alabama.

March 9, 2007.

Lana K. Hawking of The Hawkins Law Firm, LLC, Arab, for appellant.

Troy King, atty. gen., and Mary Becker Windom, deputy atty. gen., for appellee.

BRYAN, Judge.

Melvin E. Knoblett appeals from a judgment of the Montgomery Circuit Court affirming an order by the Alabama Board of Massage Therapy ("the Board") revoking Knoblett's license to practice massage therapy and levying an administrative fine against him in the amount of $10,000. We affirm.

Knoblett is the co-owner of a massage-therapy establishment, where he worked as a licensed massage therapist. On May 23, 2002, the Board filed an administrative complaint against Knoblett, charging him with engaging in unprofessional conduct in violation of § 34-43-15(a)(3), Ala.Code 1975, and various rules of the Board. The charges against Knoblett were based upon a written report filed with the Board by T.D., an adult female who had received massages from Knoblett. An administrative law judge ("the ALJ") appointed by the Board held evidentiary hearings on the charges in June 2002, October 2002, and November 2002.

T.D. testified at the June 2002 hearing. The Board had hired T.D. to receive massages from Knoblett after Knoblett had entered into a consent order with the Board in April 2001 stating that he had illegally massaged the inguinal areas of female clients and had failed to follow proper draping procedures during massages.¹ T.D. testified that Knoblett touched her breast, nipples, buttocks, and genitalia during a massage on May 3, 2002. T.D. also testified that Knoblett, by virtue of his draping procedures, had exposed her breast during the May 3, 2002, massage.

Several witnesses testified at the hearings of October 2002 and November 2002, including Knoblett and expert witnesses called by both Knoblett and the Board. Knoblett gave testimony directly controverting T.D.'s testimony given at the June 2002 hearing regarding the May 3, 2002, massage. The expert testimony tended to show that, if T.D.'s allegations were accepted as true, Knoblett had engaged in unprofessional conduct as defined by statute and the rules of the Board.

On August 13, 2003, the ALJ issued a written recommendation finding that "[Knoblett] touched the breast, nipples of the breast, buttocks and genitalia[] of [T.D.], each on more than one (1) occasion and engaged in improper massage draping techniques during the massage on May 3, 2002." The ALJ concluded that Knoblett had violated § 34-43-15(a)(3), Ala.Code 1975; Rule 532-X-3-.04(5)(i), Ala. Admin. Code (Alabama Board of Massage Therapy); Rule 532-X-5-.03(1)(d), Ala. Admin. Code (Alabama Board of Massage Therapy); and Rule 532-X-7-. 01(1)(i), Ala. Admin. Code (Alabama Board of Massage Therapy).

Section 34-43-15(a)(3), Ala.Code 1975, provides:

"(a) The board may suspend, revoke, or refuse to issue or renew a license or impose a civil penalty after notice and opportunity for a hearing pursuant to the Administrative Procedures Act[, § 41-22-1 et seq., Ala.Code 1975], upon proof of any of the following:

"....

"(3) The licensee has engaged in unprofessional conduct that has endangered or is likely to endanger the health, safety, and welfare of the public, as defined by the rules of the board."

Rule 532-X-3-.04(5)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

"(5) The applicant [for licensure] may be requested to submit to the Board evidence of or written policy covering the following:

"....

"(i) clean drape material for draping clients during the massage, use of which shall be explained to the client prior to the massage, and which shall cover the buttocks and genitals of a male client at all times during the massage, and which shall cover the buttocks, breasts, and genitals of a female client at all times during the massage."

Rule 532-X-5-.03(1)(d), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

"(1) The following acts shall constitute misconduct in the practice of massage therapy for which disciplinary penalties may be imposed after opportunity to be heard pursuant to the procedure in the Alabama Administrative Procedures Act:

"....

"(d) engaging in or attempting to or offering to engage a client in sexual activity, including but not limited to genital contact, within a client-massage therapist relationship."

Rule 532-X-7-.01(1)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

"(1) Massage therapists shall:

"....

"(i) Refrain from engaging in any sexual conduct, behavior, or activities involving a client, even if the client attempts to sexualize the relationship."

In the written recommendation, the ALJ recommended that the Board revoke Knoblett's license to practice massage therapy. On August 22, 2003, the Board adopted the ALJ's written recommendation as part of the final order of the Board. In addition to revoking Knoblett's licence to practice massage therapy, the Board's order levied a $10,000 administrative fine against Knoblett, pursuant to § 34-43-15(a)(3), Ala.Code 1975. Knoblett appealed the Board's order to the circuit court, which entered a judgment affirming the Board's order on March 8, 2006. Knoblett timely appealed the circuit court's judgment to this court.

Section 41-22-20(k), Ala.Code 1975, controls judicial review of agency decisions. In pertinent part, it provides:

"(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. . . . The court may reverse or modify the decision or grant other appropriate relief from the agency action . . . if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:

"(1) In violation of constitutional or statutory provisions;

"(2) In excess of the statutory authority of the agency;

"(3) In violation of any pertinent agency rule;

"(4) Made upon unlawful procedure;

"(5) Affected by other error of law "(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or

"(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion."

Our supreme court has stated:

"This Court has further defined the standard of review of an agency ruling in Alabama as follows:

"`"Judicial review of an agency's administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency's actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency."'"

Ex parte Medical Licensure Comm'n of Alabama, 897 So.2d 1093, 1096-97 (Ala. 2004) (quoting Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ. App.1989)). "A presumption of correctness attaches to the decision of an administrative agency due to its recognized expertise in a specific, specialized area." Hall v. Alabama Alcoholic Beverage Control Bd., 631 So.2d 1047, 1048 (Ala.Civ.App.1993).

On appeal, Knoblett first argues that the April 2001 consent order that he entered into with the Board was obtained upon unlawful procedure and, therefore, should have been invalidated by the circuit court. In February 2001, the Board filed an administrative complaint against Knoblett, based upon a female client's allegations that he had engaged in unprofessional conduct during a massage. That complaint was resolved by the April 2001 consent order, which stated that Knoblett had violated § 34-43-15(a)(3), Ala.Code 1975, and Rule 532-X-7-.01(1)(i), Ala. Admin. Code (Alabama Board of Massage Therapy). The consent order placed Knoblett on probation for a year and levied an administrative fine against him in the amount of $2,000. The consent order also stated that Knoblett's "professional activities" would be "monitored" by the Board.

Knoblett argues that the "monitoring" provision in the consent order illegally enabled the Board to monitor Knoblett by hiring T.D. to receive massages from him. Knoblett notes that Rule 532-X-7-.01(1)(i), the violation of which gave rise to the consent order, was not made effective until March 5, 2001, after the Board had filed its first administrative complaint against him. Knoblett argues that, because Rule 532-X-7-.01(1)(i) was not effective when the complaint was filed against him in February 2001, the consent order was made upon unlawful procedure, the consent order should have been invalidated by the circuit court, and all evidence obtained in the present proceeding as a result of the "monitoring" provision in the consent order should have been excluded.

However, Rule 532-X-3-.04(7), Ala. Admin. Code (Alabama Board of Massage Therapy), grants the Board broad authority to initiate "inspections." Rule 532-X-3-.04(7), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

"Inspections may be initiated by the Board at any time during reasonable business hours after licensure of the establishment, which may include but are not limited to determining whether the establishment is in compliance with the rules governing the establishment's operation, facilities, personnel, safety, sanitary requirements, and review of existing insurance coverage. Failure to cooperate with such inspection may lead to disciplinary action."

Rule 532-X-3-.04(7) is broad enough to...