In the Matter of the Application of Y.L. to Practice Massage and Bodywork Therapy in the State of New Jersey ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1226-13T1
IN THE MATTER OF THE APPROVED FOR PUBLICATION
APPLICATION OF
October 3, 2014
Y.L.
APPELLATE DIVISION
TO PRACTICE MASSAGE AND
BODYWORK THERAPY IN THE STATE
OF NEW JERSEY.
________________________________________________________________
Argued September 16, 2014 – Decided October 3, 2104
Before Judges Reisner, Koblitz and Haas.
On appeal from the New Jersey State Board of
Massage and Bodywork Therapy Examiners,
Department of Law and Public Safety,
Division of Consumer Affairs, Application
ID. 1666779.
Angela F. Pastor argued the cause for
appellant Y.L.
Shirley P. Dickstein, Deputy Attorney General,
argued the cause for respondent Division of
Consumer Affairs (John J. Hoffman, Acting
Attorney General; Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Susan Carboni, Deputy Attorney General, on
the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
Y.L. appeals from the September 25, 2013 Final Order of
Denial of Certification/Licensure issued by the Board of Massage
and Bodywork Therapy (the Board) because Y.L. engaged in
misrepresentation on her sworn application, in violation of the
Uniform Enforcement Act (UEA) governing professional and
occupational boards, N.J.S.A. 45:1-14 to -27. We reject Y.L.'s
argument that the Board must find she had an intent to deceive,
and affirm the Board's denial, which required Y.L. to wait two
years before reapplying for a license.
In both the application and the accompanying authorization
for a background check Y.L. submitted in 2012, she swore that
she had never been arrested for any crime or offense. She
signed an affidavit stating: "[a]ll information provided in
connection with this application is true to the best of my
knowledge and belief. I understand that any omissions,
inaccuracies or failure to make full disclosure may be deemed
sufficient to deny licensure[.]"
She certified similarly on the authorization. The Board
discovered that Y.L. had been arrested for prostitution,
N.J.S.A. 2C:34-1, in a massage therapy establishment in 2004.
The charge was later dismissed. Y.L. wrote the Board a letter
explaining that she did not read the application questions
carefully and mistakenly neglected to acknowledge the arrest.
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She indicated that "English is not my primary language" and
denied having engaged in prostitution.
After retaining counsel, she submitted an affidavit again
attributing the mistake to her difficulty understanding English
and also the fact that a friend had completed the application
for her. She revealed for the first time that she was licensed
as a massage therapist in Florida, another fact she had failed
to mention in her original application. She stated that it was
never her intention to deceive the Board. Y.L. is otherwise
qualified for a license.1
Our scope of review of an administrative agency action is
limited and highly deferential. So long as the Board's decision
is supported by sufficient credible evidence in the record and
was neither "arbitrary, capricious, [nor] unreasonable," it will
be affirmed. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)
(citing In re Warren, 117 N.J. 295, 296 (1989)). In making this
determination, a reviewing court must examine: "(1) whether the
agency's decision conforms with relevant law; (2) whether the
decision is supported by substantial credible evidence in the
record; and (3) whether, in applying the law to the facts, the
administrative agency clearly erred in reaching its conclusion."
1
We note that an arrest alone is insufficient to deny a license.
N.J.S.A. 45:1-21(f).
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Twp. Pharmacy v. Div. of Med. Assistance & Health Servs., 432
N.J. Super. 273, 283-84 (2013) (citing In re Stallworth, 208
N.J. 182, 194 (2011)).
We also review factual findings made by an administrative
agency deferentially. On appeal, "the test is not whether an
appellate court would come to the same conclusion if the
original determination was its to make, but rather whether the
factfinder could reasonably so conclude upon the proofs."
Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of
Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). So long as
the "factual findings are supported 'by sufficient credible
evidence, courts are obliged to accept them.'" Ibid. (quoting
Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
N.J.S.A. 45:1-21 states in pertinent part:
A board may refuse to admit a person to an
examination or may refuse to issue or may
suspend or revoke any certificate,
registration or license issued by the board
upon proof that the applicant . . .
b. Has engaged in the use or employment of
dishonesty, fraud, deception,
misrepresentation, false promise or false
pretense;
Y.L. argues that because the word "misrepresentation" is
surrounded by words that in her view require an intent to
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deceive, such as "dishonesty, fraud [and] deception[,]" such an
intent should be required for any misrepresentation.
We recently decided that the Director of the New Jersey
Division of Medical Assistance and Health Services (the
Director) did not err in denying a pharmacy's application to
participate in the State's Medicaid program due to its
unintentional failure to disclose the criminal record of one of
its employees. Twp. Pharmacy, supra, 432 N.J. Super. at 274-75.
We interpreted N.J.A.C. 10:49-11.1(d)(22), which lists as a
reason for disqualification, "[s]ubmission of a false or
fraudulent application for the provider status to the Program or
its Fiscal Agent." After a hearing, the Administrative Law
Judge (ALJ) found that the pharmacist owner's incorrect answer
was "not intentional or knowing[.]" The ALJ found, however,
that the applicant had the "duty to provide truthful, accurate,
and complete answers to all questions[.]" The Director adopted
the ALJ's findings in light of the applicant's certification to
the accuracy of the application and noted that N.J.A.C. 10:49-
11.1(d)(22) does not require an intent to deceive. Twp.
Pharmacy, supra, 432 N.J. Super. at 283.
We affirmed, discussing that "[t]he delivery of health care
to the public is a highly regulated business activity which
directly impacts upon the safety and welfare of the public."
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Twp. Pharmacy, supra, 432 N.J. Super. at 286 (citations and
quotation marks omitted). Massage therapy is also "highly
regulated" and also "directly impacts the safety and welfare of
the public." Although the wording of the administrative code
provision interpreted in Township Pharmacy is not identical to
the UEA provision, it is quite similar.
"The goal of all statutory interpretation is to give effect
to the intent of the Legislature." Maeker v. Ross, __ N.J. __,
__ (2014) (slip op. at 12) (citation and quotation marks
omitted). When enacting the UEA the legislature indicated:
The Legislature finds and declares that
effective implementation of consumer
protection laws and the administration of
laws pertaining to the professional and
occupational boards located within the
Division of Consumer Affairs require uniform
investigative and enforcement powers and
procedures and uniform standards for license
revocation, suspension and other
disciplinary proceedings by such boards.
This act is deemed remedial, and the
provisions hereof should be afforded a
liberal construction.
[N.J.S.A. 45:1-14.]
The Attorney General draws our attention to the enforcement
of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, where
"misrepresentation[,]" a violation of section two of the CFA,
does not require an intent to deceive if it results from an
"affirmative act[.]" Chattin v. Cape May Greene, Inc., 243 N.J.
6 A-1226-13T1
Super. 590, 598 (App. Div. 1990), aff'd o.b., 124 N.J. 520, 521
(1991). The CFA and the UEA are both remedial legislation
intended to protect the public. D'Agostino v. Maldonado, 216
N.J. 168, 193 (2013) (discussing the remedial nature of the
CFA); N.J.S.A. 45:1-14.
Contrary to Y.L.'s argument, misrepresentation does not
generally require the intent to deceive. "Negligent
misrepresentation is a legally sound concept. An incorrect
statement, negligently made and justifiably relied upon, may be
the basis for recovery of damages for economic loss or injury
sustained as a consequence of that reliance." H. Rosenblum,
Inc. v. Adler, 93 N.J. 324, 334 (1983). Accepting Y.L.'s
explanation for her failure to reveal her arrest, the "mistake"
legally constituted at least negligent misrepresentation.
If we were to accept Y.L.'s argument that the Board must
find an intent to deceive whenever an applicant fails to reveal
relevant negative information, a testimonial hearing would
likely be required in every instance where the applicant alleged
the failure was not intentional. The requirement that Y.L. sign
an affidavit and a certification put Y.L. on sufficient notice
of the need "to provide truthful, accurate and complete answers
to all questions[.]" Twp. Pharmacy, supra, 432 N.J. Super. at
283.
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Affirmed.
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