Nacey v. Board of Massage Therapists

Under OAR 137-003-0580, summary determination is appropriate only if the evidence, when viewed in the light most favorable to the nonmoving party, establishes that “there is ‘no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought,’ and the party filing the motion[] ‘is entitled to a favorable ruling as a matter of law.’” Wolff v. Board of Psychologist Examiners, 284 Or App 792, 800 (2017)

Petitioner, a massage therapist licensed by the Oregon Board of Massage Therapists (the Board), sought judicial review of a final order of the Board in which determined that Petitioner had committed violations of four separate administrative rules governing massage therapists, imposed a civil penalty of $4,000, and ordered him to pay the costs of the administrative proceeding. Petitioner assigned error to the administrative law judge (ALJ) ruling, which granted the Board’s motion for summary determination as to three alleged rule violations, including an alleged violation of the undue influence rule violated OAR 334-040-0010(23)(h). On review, Petitioner argued that there were factual disputes in this case that precluded the ALJ from granting the Board summary determination. In response, the Board argued that summary determination was appropriate because the Board plausibly interpreted OAR 334-040-0010(23)(h) to prohibit Petitioner’s conduct of denying a customer’s refund request. The court will defer to the interpretation of a rule by the promulgating agency, if the agency offers an interpretation of the rule that is plausible, given the rule’s text and context and any other applicable sources of law. Don’t Waste Oregon v. Energy Facility Siting, 320 Or 132, 142-43 (1994) Under OAR 137-003-0580, summary determination is appropriate only if the evidence, when viewed in the light most favorable to the nonmoving party, establishes that “there is ‘no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought,’ and the party ling the motion[] ‘is entitled to a favorable ruling as a matter of law.’” Wolff v. Board of Psychologist Examiners, 284 Or App 792, 800 (2017). ). In this case, the Court of Appeals determined that the words of OAR 334-040-0010(23)(h) could not sustain the extensive scope that the Board claimed for it, and that factual disputes existed. Therefore, the Court held that the Board erred by ruling against petitioner on summary determination, and a hearing was required to resolve the relevant factual disputes. Reversed and remanded.