Can Utah prohibit unlicensed massage therapists from advertising their services? Ho v. Dep't of Commerce Explained

Background and Facts

Jessica Ho worked at a massage establishment despite having had her massage therapy license previously revoked. When a DOPL investigator visited the business, Ho offered him massage services at specified prices, confirmed she would personally provide the massage, and began manipulating the investigator’s arm. After the investigator disclosed his identity and requested her license, Ho immediately denied offering massage services. DOPL subsequently cited Ho for practicing massage therapy without a license under Utah Code section 58-1-501(1)(a).

Key Legal Issues

Ho raised two primary constitutional challenges: (1) whether Utah Code section 58-47b-102(6)(l), which prohibits “providing, offering, or advertising a paid service using the term massage” without a license, violates the First Amendment right to free speech, and (2) whether she was denied due process through various procedural irregularities, including reference to her expunged prostitution charge during the administrative hearing.

Court’s Analysis and Holding

The Utah Court of Appeals applied the Central Hudson test for commercial speech restrictions, finding that Ho’s speech was misleading commercial speech deserving no First Amendment protection. When Ho offered massage services for payment while unlicensed, she inaccurately implied she was qualified and licensed to provide such services. The court emphasized that the statute only prohibits offering “paid service” using the term massage, not mere mention of the word. On the due process claim, the court found Ho failed to preserve two arguments and demonstrated no substantial prejudice from the prostitution reference, particularly given the ALJ’s curative instruction to disregard it entirely.

Practice Implications

This decision reinforces that professional licensing statutes receive significant deference when challenged on First Amendment grounds, particularly when the regulated activity involves misleading commercial speech. The court’s analysis demonstrates that licensing requirements serve the substantial governmental interest of protecting consumers from unqualified practitioners. For practitioners challenging administrative actions, the decision underscores the importance of preserving constitutional arguments at the agency level and establishing substantial prejudice when claiming procedural due process violations.