A recent opinion issued by the Appellate Division confirmed that professionals in New Jersey can be denied licenses simply due to application errors even if the applicant did not have the intent to deceive. 

The case at issue is In the Matter of the Application of Y.L.  Here, the applicant was denied her license by the state Board of Massage and Bodywork Therapy because she failed to disclose that she had been arrested for prostitution in 2004.  The Board claimed that Y.L. engaged in misrepresentation by failing to disclose the prostitution arrest in response to a question asking whether the applicant had ever been arrested for any crime or offense.  Y.L.’s application included 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.”  Y.L. appealed the Board’s denial, arguing that the Board must find that she had an intent to deceive in order to deny her license application. 

The Appellate Division disagreed and affirmed the Board’s denial.  The court reasoned that “negligent misrepresentation is a legally sound concept.  An incorrect statement, negligently made and justifiably relied upon, may be the basis of recovery of damages for economic loss or injury sustained as a consequence of that reliance.”  Accordingly, the court concluded that even if the court accepted her explanation for failure to reveal her arrest (her limited ability to understand English), the mistake constituted at least negligent misrepresentation.

The court cited a 2013 appellate decision that upheld the denial of a pharmacy’s application to participate in the state’s Medicare program because of its unintentional failure to disclose the criminal record of one of its employees.  In that case, Township Pharmacy v. Division of Medical Assistance and Health Services, the court found that the nondisclosure of the criminal record justified exclusion from the program under a state regulation that listed “submission of a false or fraudulent application” as a basis for disqualification.  The court noted that the pharmacy had certified the accuracy of the application, just as Y.L. had signed an affidavit stating that all information provided was “true to the best of my knowledge and belief” and that she understood that “any omissions, inaccuracies or failure to make full disclosure may be deemed sufficient to deny licensure.”

Because most professional license applications include a similar certification or are otherwise made under oath, any errors, inaccuracies or omissions may be deemed grounds for disqualification.  Thus, Y.L. is a reminder to be meticulous in responding to all requested information, and that it is better to disclose and explain negative information than to conceal or omit it.