Ludeman v. State, Dept. of Health

• Decision Date: 24 November 1997
• Docket Number: No. 39475-4-I,39475-4-I
• Citation: 951 P.2d 266,89 Wn.App. 751
• Court: Washington Court of Appeals
• Parties: Yong Rip LUDEMAN, Appellant, v. STATE of Washington, DEPARTMENT OF HEALTH, Respondent.

Page 751

89 Wn.App. 751

951 P.2d 266

Yong Rip LUDEMAN, Appellant, v. STATE of Washington, DEPARTMENT OF HEALTH, Respondent.

No. 39475-4-I.

Court of Appeals of Washington,

Division 1.

Nov. 24, 1997.

Publication Ordered Feb. 2, 1998.

Tom P. Conom, Edmonds, for Appellant.

Mark O. Brevard, Atty Gen. Office, Olympia, for Respondent.

COX, Judge.

The Department of Health revoked Yong Rip Ludeman's massage license and imposed a fine on her for violating the uniform disciplinary act (UDA). The UDA governs the professional conduct of licensed massage practitioners. Because double jeopardy is not implicated under the facts of this case, collateral estoppel does not apply, and there was no violation of the prohibition against ex post facto laws, we affirm.

Yong Rip Ludeman was a massage practitioner licensed by the State of Washington. The Federal Way District Court found her guilty of prostitution in January 1991.

In March 1992, the State charged Ludeman in Shoreline District Court with prostitution and resisting arrest. These charges were based on an incident separate from that on which the Federal Way District Court conviction was based. The State alleged that Ludeman had sexual contact with an undercover officer during a massage. Although the court dismissed both charges, the record does not indicate the basis for the dismissals.

In June 1992, the state Department of Health's massage program charged Ludeman with violations of RCW 18.130.180(1) and RCW 18.130.180(24). The former statute prohibits acts of moral turpitude, and the latter prohibits sexual contact with a patient. The health law judge conducted an administrative hearing on the charges. The judge decided that Ludeman's prostitution conviction did not establish that she had any sexual contact with her client during the 1991 incident. But the judge concluded that Ludeman's conduct during that incident violated RCW 18.130.180(1), which prohibits acts of moral turpitude. The judge further found that Ludeman had sexual contact with the undercover officer in 1992. According to the judge, this conduct violated RCW 18.130.180(24). On the basis of these violations, the judge ordered the revocation of Ludeman's massage license for at least five years and fined her $3,000.

On review, the King County Superior Court affirmed the Department's decision. Ludeman appeals.

I. Standard of Review

Judicial review of a final administrative decision is governed by RCW 34.05.570(3). ¹ In reviewing an administrative decision, we stand in the same position as the superior court. ² We apply the appropriate standard of review directly to the administrative record. ³

We will grant relief from an agency order in an adjudicative proceeding where the agency has erroneously interpreted or applied the law, the order is not supported by substantial evidence, or the order is arbitrary and capricious. ⁴ Under the error of law standard, we accord substantial weight to the agency's interpretation of the law, but may substitute our own judgment for that of the agency. ⁵ We may defer to the agency's interpretation of the law only where the agency is interpreting the body of law it administers or enforces. ⁶

II. Double Jeopardy

Ludeman contends that the penalties the State imposed in the administrative proceeding dealing with her license as a massage professional constituted punishment for conduct that was the subject of prior prosecutions in the district courts. We disagree.

The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against multiple punishments for the same offense. ⁷ Because Ludeman makes no argument regarding the Washington Constitution and fails to perform the analysis required by State v. Gunwall, ⁸ we need only consider the federal constitution's prohibition against double jeopardy. ⁹

Double jeopardy applies where the two offenses for which the defendant is punished or tried are the same offense under the "same elements," or Blockburger ¹⁰ test. ¹¹ The test, as recently stated by the United States Supreme Court, is "whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." ¹²

Here, the State charged Ludeman with prostitution in both criminal proceedings. Prostitution is defined by RCW 9A.88.030:

(1) A person is guilty of prostitution if such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

(2) For purposes of this section, "sexual conduct" means "sexual intercourse" or "sexual contact," both as defined in chapter 9A.44 RCW.

In the administrative proceeding, the Department charged Ludeman with violations of RCW 18.130.180. That statute provides in relevant part that The following conduct, acts, or conditions constitute unprofessional conduct for any license holder or applicant under the jurisdiction of this chapter:

(1) The commission of any act involving moral turpitude, ... relating to the practice of the person's profession, whether the act constitutes a crime or not.

. . . . .

(24) Abuse of a client or patient or sexual contact with a client or patient[.]

Ludeman first contends that the courts have applied the "same conduct" test rather than the "same elements" test in cases such as this one where civil and criminal proceedings are at issue. But none of the cases Ludeman cites persuasively address the issue she raises. ¹³ We therefore apply the "same elements" test.

Ludeman next contends that even if the same elements test does apply here, the courts have interpreted that test quite liberally where both civil and criminal proceedings are involved. Again, her contention is not supported by the cases she cites. In each of these cases, the courts applied the Dixon "same elements" test where the defendants were prosecuted for crimes and the government instituted civil forfeiture proceedings against them based on those crimes. ¹⁴ For example, in Oakes the court determined that the civil forfeiture statute in question required a showing of a violation of one of several criminal offenses. Therefore,

[a]ny forfeiture under section 881(a)(7) ... requires a preceding violation of the controlled substance statutes....

The civil forfeiture action and the Petitioner's criminal prosecution addressed the identical violation of the identical laws; the only difference between the proceedings was the remedy sought by the Government.[ ¹⁵

This constitutes a straightforward application of the Dixon "same elements" test.

Applying the "same elements" test to the charges in this case, it is clear that "prostitution" and "sexual contact with a client" are not the same offense. The crime of prostitution involves sexual contact or an offer therefor in exchange for a fee. In contrast, RCW 18.130.180(24), a basis for the revocation and fine in the administrative proceeding, makes no mention of a fee. Likewise, RCW 18.130.180(24) requires proof of sexual contact. But a conviction of prostitution is possible on a showing only that an offer of sexual contact occurred.

Similarly, acts involving moral turpitude and prostitution are not the same offense. RCW 18.130.180(1) requires a showing that an act of moral turpitude relates to the practice of a person's profession. ¹⁶ This is not among the elements of prostitution. In addition, the crime of prostitution requires a specific showing that sexual contact or an offer for such contact was made in exchange for a fee. In contrast, acts of moral turpitude encompass a wide range of conduct. Each of these offenses includes an element the other does not. They are not the same offense under the "same elements" test.

Ludeman finally argues that even if the offenses of acts of moral turpitude and sexual contact with a client are not the same offense as prostitution under the "same elements" test, we may conclude that they are the same offense if there exist clear indications that the Legislature intended that the offenses be treated as the same. We do not see any such legislative intent.

In State v. Calle, ¹⁷ our Supreme Court stated that the Blockburger test and Washington's very similar "same evidence" test ¹⁸ are essentially rules of statutory construction. ¹⁹ While these tests establish a presumption that the Legislature intended two offenses with different elements to be separate offenses, the tests are not determinative where there is clear evidence of contrary legislative intent. ²⁰

In this case, there is no evidence that the Legislature intended the offenses set forth in RCW 18.130.180 and the crime of prostitution to be the same offense. First, there is nothing in the language of either statute to indicate such intent. It is true that RCW 18.130.180(1) does refer to acts that constitute crimes. But a determination that a professional has committed an act of moral turpitude does not turn on whether that individual has committed a crime. We contrast the Labor and Industries fraud statute at issue in State v. Hull, ²¹ where the court found that the Legislature intended that L & I fraud be treated as a "more specific ... species of theft." ²² That statute specifically refers to the criminal theft provision and incorporates the degrees of theft by including the value of benefits obtained as an element. ²³

It appears that the Legislature intended by way of the UDA to impose a strict set of conduct requirements on professionals in whom the public places its trust and respect in order to preserve the integrity of the profession and protect the public. ²⁴ This goal differs from that of the criminal justice system.

Because the crime of prostitution and the violations of the UDA are not the same offense for the purpose of double jeopardy analysis, we need not reach the argument that the revocation of Ludeman's massage license and the fine the Department imposed constitute punishment within the meaning of the Double...