Knoblett v. Alabama Board of Massage Therapy

963 So. 2d 640, 2007 Ala. Civ. App. LEXIS 158, 2007 WL 704908
CourtCourt of Civil Appeals of Alabama
DecidedMarch 9, 2007
Docket2050575
StatusPublished
Cited by1 cases

This text of 963 So. 2d 640 (Knoblett v. Alabama Board of Massage Therapy) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knoblett v. Alabama Board of Massage Therapy, 963 So. 2d 640, 2007 Ala. Civ. App. LEXIS 158, 2007 WL 704908 (Ala. Ct. App. 2007).

Opinions

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 Aet[, § 41-22-1 et seq., Ala.Code 1975], upon proof of any of the following:
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“(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.”

[644]*644Rule 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:
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“(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(l)(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:
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“(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(l)(i), Ala. Admin. Code (Alabama Board of Massage Therapy), provides:

“(1) Massage therapists shall:
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“(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 fíne 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 qr 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;
[645]*645“(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.

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Cite This Page — Counsel Stack

Bluebook (online)
963 So. 2d 640, 2007 Ala. Civ. App. LEXIS 158, 2007 WL 704908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knoblett-v-alabama-board-of-massage-therapy-alacivapp-2007.