In reviewing the agency decision, this Court is required to give due weight to the agency's experience, technical competence, specialized knowledge, and the discretionary authority conferred upon it by statute. Iodice v. Architectural Access Bd., 424 Mass. 370, 375-76 (1997) (citing G.L.c. 30A, § 14(7)); Arnone v. Comm'r of the Dep't. of Soc. Services, 43 Mass. App. Ct. 33, 34 (1997); Foxboro Harness, Inc. v. State Racing Comm'n, 42 Mass. App. Ct. 82, 87, rev. denied at 424 Mass. 1107 (1997); Cahalen v. Comm'r of the Dep't of Employment and Training, 41 Mass. App. Ct. 26, 27 (1996); Van Munching Co. v. Alcoholic Beverages Control Comm'n, 41 Mass. App. Ct. 308, 309 (1996); Flint v. Comm'r of Pub. Welfare, 412 Mass. 416, 420 (1992). The reviewing court may not substitute its judgment for that of the agency.
Iodice v. Architectural Access Bd., 424 Mass. 370, 375-76 (1997), citing G.L.c. 30A, § 14(7): Arnone v. Comm'r of the Dept. of Social Services, 43 Mass. App. Ct. 33, 34 (1997). Foxboro Harness, Inc. v. State Racing Comm'n, 42 Mass. App. Ct. 82, 87 (1997); Cahalen v. Comm'r of the Dept. of Employ. and Training, 41 Mass. App. Ct. 26, 27 (1996); Van Munching Co. v. Alcoholic Beverages Control Comm'n, 41 Mass. App. Ct. 308, 309 (1996); Phillip's case, 41 Mass. App. Ct. 612, 615 (1996) (workers' compensation); Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). The reviewing court may not substitute its judgment for that of the agency.
Finally, we note that at least one other jurisdiction wherein a racing association's ejectment is subject to administrative review has recognized, without addressing the issue, that the burden of proof was properly placed on a racetrack to demonstrate “that its decision to exclude ... was reasonable.” See Foxboro Harness, Inc. v. State Racing Comm'n, 42 Mass.App.Ct. 82, 86, 674 N.E.2d 1322, 1325 (1997). Based upon the foregoing analysis, we now hold that the West Virginia Racing Commission has properly established, by procedural rule promulgated at 178 W. Va.C.S.R. 6 § 4.7.d., that, “[i]n any hearing on an appeal by a permit holder of an ejection [of said permit holder] by an association, the association shall have the burden of proving by a preponderance of the evidence that the permit holder acted improperly or engaged in behavior that is otherwise objectionable pursuant to 178 W. Va.C.S.R. 1, § 6.2. or 178 W. Va.C.S.R. 2, § 6.2.”
March 28, 1997Further appellate review denied: Reported below: 42 Mass. App. Ct. 82 (1997).
The issue has therefore been waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015) (failure to address issue on appeal waives right to appellate review); Foxboro Harness, Inc. v. State Racing Commn., 42 Mass.App.Ct. 82, 86 n. 5 (1997) ; Northern Assur. Co. of America v. Payzant, 80 Mass.App.Ct. 223, 227 (2011). “Parental unfitness, in this context, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's [guardian].
As a result, any argument that the promissory note was not a disqualifying transfer is waived. See Gordon v. State Bldg. Code Appeals Bd., 70 Mass. App. Ct. 12, 16 (2007), quoting from Foxboro Harness, Inc. v. State Racing Commn., 42 Mass. App. Ct. 82, 85 (1997). This was done because it was determined the plaintiff was over assets when the second application was originally reviewed.
Although [G.R.] possesses these rights, this argument was not presented at DALA or in the Superior Court and is deemed waived. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493–494 (1983); Foxboro Harness, Inc. v.State Racing Commn., 42 Mass.App.Ct. 82, 85 (1997).” M.D., supra at 476 n. 28, 985 N.E.2d 863.
Although M.D. possesses these rights, this argument was not presented at DALA or in the Superior Court and is deemed waived. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493–494, 446 N.E.2d 1385 (1983); Foxboro Harness, Inc. v. State Racing Commn., 42 Mass.App.Ct. 82, 85, 674 N.E.2d 1322 (1997). However, assuming, without deciding the issue, it would appear that the notice section in par.
We deem the argument waived. See Foxboro Harness, Inc. v. State Racing Commn., 42 Mass.App.Ct. 82, 85 (1997); Namundi v. Rocky's Ace Hardware, LLC, 81 Mass.App.Ct. 665, 673 n. 13 (2012). The guardians' argument about the violation of the “safety and well-being” mandate was based upon an improper truncating of an ISP regulation implementing the principle.
Because Doe did not raise this claim before the hearing examiner, we decline to consider it on appeal. See Boston v. Massachusetts Commn. Against Discrimination, 39 Mass.App.Ct. 234, 242, 654 N.E.2d 944 (1995) ; Foxboro Harness, Inc. v State Racing Commn., 42 Mass.App.Ct. 82, 85, 674 N.E.2d 1322 (1997). The hearing examiner also considered the regulatory factors that would tend to mitigate the risk posed by Doe.