Opinion
No. 14–P–1634.
05-09-2016
Steven M. LONG v. BOARD OF REGISTRATION OF REAL ESTATE APPRAISERS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Steven M. Long, appeals from a Superior Court judgment affirming a decision of the Board of Registration of Real Estate Appraisers (board), and denying his motion for judgment on the pleadings. The board sanctioned Long, by way of both a monetary fine and a public reprimand, for failing to disclose a seventeen year old conviction for operating a motor vehicle under the influence of intoxicating liquor (OUI) on a 2007 license renewal application. Long asserts that the board erred in disciplining him for “unknowingly” making a false statement. We affirm the disciplinary action but remand for the imposition of first offender treatment.
Long contends that the board's disciplinary decision was improper because the regulation upon which the board relied, 264 Code Mass. Regs. § 301(4)(b) (2013), is fatally inconsistent with G.L. c. 112, §§ 189(1) and 189(9), insofar as the board's regulation, as construed by the board, permits the board to discipline a license holder without a finding that the holder “knowingly” made a false statement. However, Long was not disciplined under § 189 but, rather, under G.L. c. 112, § 61, second par. (3), which, unlike § 189, does not contain the “knowing” language. See G.L. c. 112, § 61, second par. (3), inserted by St.2004, c. 450, § 2 (“A board of registration under the supervision of the division of professional licensure may discipline the holder of a license ... issued pursuant to this chapter ... if it is determined ... that such holder has: ... (3) violated any law, rule or regulation of the board of registration governing the practice of the profession”). Moreover, as the board notes on pages nine through eleven of its brief, even if Long's argument is construed to assert that § 189 and § 61, second par. (3), are inconsistent, § 61, second par. (3), is the most recently enacted statute of the two statutes and controls. See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215 (1997) (“When a new provision conflicts with a prior statute, the new provision, as the last expression of the Legislature, controls”). We conclude, therefore, that even in the absence of an explicit finding by the hearing officer that Long's conduct was “knowing,” the board could properly discipline his failure to disclose the OUI conviction on his renewal application. The board's imposition of a second offender sanction, however, stands on different footing.
The relevant portions of G.L. c. 112, §§ 189(1), (9), as amended by St.1992, c. 286, § 180, provide that: “The rights of any applicant or holder under a certificate or license as a state-certified or state-licensed real estate appraiser may be revoked or suspended, or the holder of the certificate or license may be otherwise disciplined in accordance with the provisions of this chapter, upon any of the grounds set forth in this section ... (1) procuring or attempting to procure a certificate or license by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for certification or licensing or through any form of fraud or misrepresentation; ... (9) willfully disregarding or violating any of the provisions of this chapter, or the regulations of the board” (emphasis supplied).
The board asserts that Long could be properly penalized as a repeat offender because he failed to disclose his OUI conviction on two distinct applications—the one he initially submitted to obtain a real estate license and the renewal application at issue here. We are not persuaded. Long was not disciplined in connection with the initial licensing application. There is no evidence that he acted in disregard of having been disciplined for similar conduct before; therefore, second offender treatment is not warranted. Accord Commonwealth v. Hernandez, 60 Mass.App.Ct. 416 (2004) (“[t]he controlling fact is that at the time of his ‘commission of the offense,’ he had not yet been convicted of the earlier charges”).
Equally unpersuasive is the board's alternative assertion. The board contends that remand is not warranted because it has the discretion to impose the sanction of a public reprimand on even a first infraction, resulting in only a $400 difference between the sanction Long received and the one that could be imposed upon remand, which they claim can be adjusted without remand. We disagree. While it is correct that the board has the discretion to impose a public reprimand on a first offense, it is not required to do so. See G.L. c. 112, § 61, third par. (2). We are not convinced that the board would have imposed the harsher sanction of a public reprimand absent its improper consideration of the unadjudicated earlier conduct. Indeed, it is not clear from this record that the board would have exercised its discretion to impose a public reprimand on a first infraction involving Long's failure to apprise the board of what was, after all, a seventeen year old OUI conviction on his application for renewal of a real estate license.
General Laws c. 112, § 61, third par. (3), provides, in pertinent part, that the board may “assess upon the [license] holder a civil administrative penalty, as determined by the board, not to exceed $100 for a first violation; $500 for a second violation; $1,500 for a third violation; or $2,500 for a fourth or subsequent violation.”
The portion of the judgment affirming the board's decision to discipline Long is affirmed. The portion of the judgment affirming the board's sanctions is vacated, and a new judgment is to enter remanding the matter to the board for resanctioning as a first time offender.
The plaintiff's request for attorney's fees and costs in connection with this appeal is denied.
So ordered.