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

NOT FOR PUBLICATION WITHOUT THE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

4 A-1226-13T1

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."

5 A-1226-13T1

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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