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Obtaining, Protecting, Saving, Or Reinstating Your Professional License in New Jersey
New Jersey strictly regulates occupations through the Department of Consumer Affairs. There are over 51 Professional and Occupational Boards and Committees. These Boards are responsible for regulating a wide variety of professions, contractors, and businesses. Licensing Boards have broad powers for investigating and imposing discipline for a variety of actions, past or present. Actions by these Boards may result in a refusal to grant a license, renew a license, suspend, revoke, or impose a variety of alternative sanctions.
- Has a customer, patient, client, filed a complaint against you with your Licensing Board?
- Are you being investigated by your Licensing Board?
- Has your Licensing Board submitted questions and requested documents relating to services you have performed?
- Is it time for you to renew your license and there are required disclosures that give you concern?
- Have you been charged or convicted of a crime or offense and you have a license that regulates your profession, occupation, or business?
- Are you considering applying for a license but there are issues in your past that give you concern that your application might be refused?
- Has a Licensing Board refused to grant you a license?
Next to health, family, faith, and friends, your professional license is one of the most important things in your life. It may be the primary source for making a living, it may be how you define yourself, and it usually is a source of self-worth and pride. You can work hard to train for a profession, occupation, and applications for a license may be refused.
You do not “own” a license. A Licensing Board may impose sanctions, require treatment, impose monitoring/supervision requirements, or even deny, suspend, or revoke your license. Your professional license is valuable. Your ability to get a license or to preserve your license is critical to your economic and emotional well-being.
It is important to understand the scope of review and the authority of Licensing Boards have in investigating, disciplining, refusing, suspending or revoking professional licenses. Violations of the Uniform Enforcement Act may even result in criminal prosecution.
Licensing Boards Authority to Issue, Regulate, and Impose Sanctions
Licensing Boards and the Division of Consumer Affairs have broad authority to investigate and regulate the issuance and maintenance of your license. The New Jersey Uniform Enforcement Act, N.J.S.A. 45:1.1 et seq., is “liberally” interpreted and there are “uniform investigative and enforcement powers and procedures and uniform standards for license revocation, suspension and other disciplinary proceedings by such boards.” The Office of the Attorney General has authority to “implement and administer enforcement activities of boards.”
Investigative Powers of Licensing Boards are Very Broad
The authority to investigate, monitor, and regulate licensed businesses, industries, contractors, occupations, and professions is expansive, Boards can:
a. Require any person to file on such form as may be prescribed, a statement or report in writing under oath, or otherwise, as to the facts and circumstances concerning the rendition of any service or conduct of any sale incidental to the discharge of any act or practice subject to an act or regulation administered by the board;
b. Examine under oath any person in connection with any act or practice subject to an act or regulation administered by the board;
c. Inspect any premises from which a practice or activity subject to an act or regulation administered by the board is conducted;
d. Examine any goods, ware or item used in the rendition of a practice or activity subject to an act or regulation administered by the board;
e. Examine any record, book, document, account or paper prepared or maintained by or for any professional or occupational licensee in the regular course of practicing such profession or engaging in such occupation or any individual engaging in practices subject to an act or regulation administered by the board. Nothing in this subsection shall require the notification or consent of the person to whom the record, book, account or paper pertains, unless otherwise required by law;
f. For the purpose of preserving evidence of an unlawful act or practice, pursuant to an order of the Superior Court, impound any record, book, document, account, paper, goods, ware, or item used, prepared or maintained by or for any board licensee in the regular course of practicing such profession or engaging in such occupation or any individual engaging in a practice or activity subject to an act or regulation administered by the board. In such cases as may be necessary, the Superior Court may, on application of the Attorney General, issue an order sealing items or material subject to this subsection;
g. Require any board licensee, permit holder or registered or certified person to submit to an assessment of skills to determine whether the board licensee, permit holder or registered or certified person can continue to practice with reasonable skill and safety; and
h. Whenever a board, the director through the Attorney General, or the Attorney General investigates a consumer complaint, the board, director or the Attorney General, as applicable, shall render a final disposition of the inquiry within 120 days of the filing of the complaint; except that the 120‐day period shall be tolled, based upon the documented approval of the Attorney General or the Attorney General’s designee, whenever additional time is required: to obtain information, records or evidence sought pursuant to this section that is necessary for the investigation or disposition of the consumer complaint; for the board, director or the Attorney General, as the case may be, to consider additional information furnished more than 30 days after the filing of the complaint; to conduct an administrative hearing in a contested case; for expert consultation related to the subject matter under investigation; because a complaint is, or becomes, the subject of a criminal investigation or prosecution; or for other good cause shown due to extraordinary or unforeseen circumstances. The number of consumer complaints for which tolling of the 120‐day period is approved shall be reported to the Attorney General on a monthly basis, and this information shall be provided to the Legislature on a semi‐annual basis. Nothing in this subsection shall be construed as affecting the jurisdiction of a board, the director through the Attorney General or the Attorney General. In order to accomplish the objectives of this act or any act or regulation administered by a board, the Attorney General may hold such investigative hearings as may be necessary and the board, director or Attorney General may issue subpoenas to compel the attendance of any person or the production of books, records or papers at any such hearing or inquiry.
Investigations may be triggered in a wide variety of ways. An investigation may result from complaints directly to a Board from consumers, clients, patients, complaints from competitors, and complaints from unions. Another trigger for an investigation may occur when there has been arrest or conviction. Arrests and convictions that are not necessarily related to the business or profession may trigger review and action by a Licensing Board. Referrals may come from Insurance Carriers who believe that a fraud may have occurred.
Applications for Licenses may be Refused, Renewals Denied, Suspensions and Revocations Imposed for Many Reasons
The authority for a Licensing Board to refuse a license, deny a renewal, impose monitoring, impose a suspension or revoke a license is very broad:
a. Has obtained a certificate, registration, license or authorization to sit for an examination, as the case may be, through fraud, deception, or misrepresentation;
b. Has engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense;
c. Has engaged in gross negligence, gross malpractice or gross incompetence which c. Has engaged in gross negligence, gross malpractice or gross incompetence which damaged or endangered the life, health, welfare, safety or property of any person;
d. Has engaged in repeated acts of negligence, malpractice or incompetence;
e. Has engaged in professional or occupational misconduct as may be determined by the board;
f. Has been convicted of, or engaged in acts constituting, any crime or offense involving moral turpitude or relating adversely to the activity regulated by the board. For the purpose of this subsection a judgment of conviction or a plea of guilty, non vult, nolo contendere or any other such disposition of alleged criminal activity shall be deemed a conviction;
g. Has had his authority to engage in the activity regulated by the board revoked or suspended by any other state, agency or authority for reasons consistent with this section;
h. Has violated or failed to comply with the provisions of any act or regulation administered by the board;
i. Is incapable, for medical or any other good cause, of discharging the functions of a licensee in a manner consistent with the public’s health, safety and welfare;
j. Has repeatedly failed to submit completed applications, or parts of, or documentation submitted in conjunction with, such applications, required to be filed with the Department of Environmental Protection;
k. Has violated any provision of P.L.1983, c.320 (C.17:33A‐1 et seq.) or any insurance fraud prevention law or act of another jurisdiction or has been adjudicated, in civil or administrative proceedings, of a violation of P.L.1983, c.320 (C.17:33A‐1 et seq.) or has been subject to a final order, entered in civil or administrative proceedings, that imposed civil penalties under that act against the applicant or holder;
l. Is presently engaged in drug or alcohol use that is likely to impair the ability to practice the profession or occupation with reasonable skill and safety. For purposes of this subsection, the term “presently” means at this time or any time within the previous 365 days;
m. Has prescribed or dispensed controlled dangerous substances indiscriminately or without good cause, or where the applicant or holder knew or should have known that the substances were to be used for unauthorized consumption or distribution; substances were to be used for unauthorized consumption or distribution;
n. Has permitted an unlicensed person or entity to perform an act for which a license or certificate of registration or certification is required by the board, or aided and abetted an unlicensed person or entity in performing such an act;
o. Advertised fraudulently in any manner. The division is authorized, for purposes of facilitating determinations concerning licensure eligibility, to require the fingerprinting of each applicant in accordance with applicable State and federal laws, rules and regulations. Each applicant shall submit the applicant’s name, address, and written consent to the director for a criminal history record background check to be performed. The division is authorized to receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation. Upon receipt of such notification, the division shall forward the information to the appropriate board which shall make a determination regarding the issuance of licensure. The applicant shall bear the cost for the criminal history record background check, including all costs of administering and processing the check, unless otherwise provided for by an individual enabling act. The Division of State Police shall promptly notify the division in the event an applicant or licensee, who was the subject of a criminal history record background check pursuant to this section, is convicted of a crime or offense in this State after the date the background check was performed.
Violations and Penalties are also Extremely Broad, including Civil Fines, Remedial Sanctions, Suspension, Revocation, and Even Exposure to Criminal Charges
Most actions commence with a complaint, inquiry, investigation, and the opportunity for a license holder to respond to an inquiry or investigation. Depending on the facts, Boards and the Office of the Attorney General may be more aggressive and seek an immediate suspension, injunctive relief, or filing summary actions. Such actions result in immediate litigation that is coercive resulting in immediate and negative impact on one’s occupation, business, or profession.
a. Any person who engages in any conduct in violation of any provision of an act or regulation administered by a board shall, in addition to any other sanctions provided herein, be liable to a civil penalty of not more than $10,000 for the first violation and not more than $20,000 for the second and each subsequent violation. For the purpose of construing this section, each act in violation of any provision of an act or regulation administered by a board shall constitute a separate violation and shall be deemed a second or subsequent violation under the following circumstances: (1) an administrative or court order has been entered in a prior, separate and independent proceeding; (2) the person is found within a single proceeding to have committed more than one violation of any provision of an act or regulation administered by a board; or (3) the person is found within a single proceeding to have committed separate violations of any provision of more than one act or regulation administered by a board.
b. In lieu of an administrative proceeding or an action in the Superior Court, the Attorney General may bring an action in the name of any board for the collection or enforcement of civil penalties for the violation of any provision of an act or regulation administered by such board. Such action may be brought in summary manner pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58‐10 et seq.) and the rules of court governing actions for the collection of civil penalties in the municipal court where the offense occurred. Process in such action may be by summons or warrant and in the event that the defendant in such action fails to answer such action, the court shall, upon finding an unlawful act or practice to have been committed by the defendant, issue a warrant for the defendant’s arrest in order to bring such person before the court to satisfy the civil penalties imposed. In any action commenced pursuant to this section, the court may order restored to any person in interest any moneys or property acquired by means of an unlawful act or practice.
c. Any action alleging the unlicensed practice of a profession or occupation shall be brought pursuant to this section or, where injunctive relief is sought, by an action commenced in the Superior Court.
d. In any action brought pursuant to this act, a board or the court may order the payment of costs for the use of the State, including, but not limited to, costs of investigation, expert witness fees and costs, attorney fees and costs, and transcript costs.
When in Doubt – Consult with Counsel
Any time there is an inquiry, investigation, or action by a Licensing Board or the Office of the Attorney General be smart and consult with counsel. Seek the advice of counsel prior to submitting to an interview, producing documents, or responding to any inquiry by a Licensing Board. You will have to cooperate but do so with sound advice of counsel.
Your livelihood, you emotional well-being, and your future may be at stake.
References:
N.J.S.A. 45:1.1 New Jersey Uniform Enforcement Act
N.J.S.A. 45:1‐2.1 Applicability of act.
N.J.S.A. 45:1‐14 Legislative findings and declarations; liberal construction of act
N.J.S.A. 45:1‐8 Contractors; application of N.J.S.A. 45:1‐9
N.J.S.A. 45:1‐17 Powers of Attorney General to implement act and administer law enforcement activities of boards
N.J.S.A. 45:1‐11 Violations; penalty
N.J.S.A. 45:1‐18 Investigative powers of board, director, or attorney general
N.J.S.A. 45:1‐21 Refusal to license or renew, grounds.
N.J.S.A. 45:1‐25 Violations, penalties
N.J.S.A. 45:1‐23 Summary proceeding in Superior Court; injunction; orders necessary to prevent unlawful practice or remedy past unlawful activity
Eric Marcy, Esq., is Of Counsel at Lyons & Associates, P.C., with Offices in Somerville, Morristown, and Freehold. His practice areas include criminal, civil rights, professional licensing, health care, and administrative law
Inquiries may be directed to him by telephone at 908-575-9777 or by email.
Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010.
Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.
Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009, 2017 to the present.
He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil, and criminal matters.
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