Property, License to sell. License. Administrative Law,
Judicial review. Due Process of Law, Administrative hearing.
Thomann, a licensed real estate broker, appeals from the
judgment of a single justice of this court affirming a
decision of the Board of Registration of Real Estate Brokers
and Salesmen (board) suspending Thomann's license for ten
days. We affirm.
Michael Thomann, pro se.
Healey, Attorney General, & Kimberly A. Parr, Assistant
Attorney General, for Board of Registration of Real Estate
Brokers and Salesmen.
Proceedings before the board of registration.
October 2014, the board initiated adjudicatory proceedings
against Thomann, alleging that he had engaged in the business
of real estate brokering through an unlicensed limited
liability company, in violation of 254 Code Mass. Regs.
§ 2.00(11) (2013) and 254 Code Mass. Regs. §
3.00(14)(e) (2005); and had failed to provide a certain
notice of agency disclosure to the seller of real property,
in violation of 254 Code Mass. Regs. § 3.00(13)(a)
(2005). The board asserted, on the basis of those
violations, that discipline was warranted pursuant to G. L.
c. 112, § 61. Thomann denied the allegations against
him; asserted that he had conducted his real estate brokering
activities through a properly registered business or trade
name; and alleged that it was his routine business practice
to provide his clients with a specific form of agency
disclosure. Over Thomann's opposition, an administrative
hearing officer eventually granted the board's motion for
a summary decision, concluding that there were no genuine
issues of material fact in dispute and that the alleged
violations had been established. See 801 Code Mass. Regs.
§ 1.01(7)(h) (1998). The parties, through counsel, then
submitted memoranda in lieu of a sanctions hearing.
hearing officer's tentative decision, which referenced
her summary ruling, determined that the violations had been
proved and concluded that a sanction against the
respondent's license was therefore
warranted. See 801 Code Mass. Regs. §
1.01(11)(c) (1998). Thomann, both individually and through
his attorney, filed written objections. The board's final
decision, dated September 15, 2016, considered Thomann's
objections and adopted the tentative decision with certain
modifications. It ordered suspension of Thomann's license
for ten days, beginning on October 3, 2016, with
reinstatement conditioned on his written certification that
he did not practice during the period of suspension; payment
of a $1, 200 civil administrative penalty; and submission of
an application for an appropriate license for Thomann's
limited liability company or a certification that the company
had been dissolved. See G. L. c. 112, §§ 61, 65A.
The board's decision notified Thomann that he could
appeal from the decision either by filing a petition for
judicial review in the Superior Court within twenty days of
his receipt of the decision, pursuant to G. L. c. 112, §
87BBB, or by filing a petition for review in the county court
within thirty days, pursuant to G. L. c. 112, § 64.
October 19, 2016, Thomann filed a motion in the county court
seeking an extension of time to file a petition there, and
representing that he received the board's final order on
September 30, 2016. The clerk of the county court treated
this motion as a petition for review under G. L. c. 112,
§ 64, and docketed it as such. After the board filed the
administrative record and both parties filed their briefs,
the single justice affirmed the board's final decision
and denied all other requests for relief. This appeal
Procedure for judicial review.
review of the final decisions of many boards of registration
is properly sought by filing a petition in the county court
within thirty days of the receipt of notice of the decision.
This procedure is established by G. L. c. 112, § 64, and
by G. L. c. 3OA, § 14 (7). See, e.g., Hamel v. Board
of Registration of Funeral Directors & Embalmers,
449 Mass. 1008, 1009 (2007); Friedman v. Board of
Registration in Med., 414 Mass. 663, 664 & n.1
(1993). The board in this case, at the end of its written
decision, informed Thomann that he could proceed in that
fashion, and that is essentially what he did. The single
justice also decided the matter under those statutes.
case of this particular board, however, another statute
applies. General Laws c. 112, § 87BBB (C), states, with
respect to decisions of this board, that any person aggrieved
by the decision "may appeal to the superior
court sitting in equity for the county wherein he
resides or has his principal place of business, or to said
court sitting in equity for the county of Suffolk"
(emphasis added). The statute requires the appeal to be filed
in the Superior Court within twenty days of receipt of
notification of the board's decision; authorizes the
Superior Court to hear all the pertinent evidence and to
determine the facts; and authorizes the Superior Court to
annul the board's decision if it exceeded the board's
authority or to grant other relief as justice and equity may
require. Id. Significantly, § 87BBB (C) then
also states that "[t]he foregoing remedy shall be
exclusive," and further provides that, from the
decision of the Superior Court, "the parties shall have
all rights of appeal and exception as in other equity
cases" (emphasis added). Id. Thus, the statute
specific to this particular board, § 87BBB, unlike the
more generic statute applicable to boards of registration
generally, G. L. c. 112, § 64, identifies the Superior
Court, not this court, as the forum for judicial review, and
states that this remedy "shall be
notice given by the board at the end of its written decision
in this case appeared to give the parties two options for
obtaining judicial review of the decision. It informed them
that they could proceed either in the county court,
pursuant to § 64, cur in the Superior Court, pursuant to
§ 87BBB. That appears to us to be at odds with the plain
language of § 87BBB (C), which states that the remedy
provided therein shall be exclusive. We encourage parties in
future cases to pursue their appeals from this particular
board in the Superior Court, pursuant to § 87BBB (C)
(see, e.g., Rao v. Board of Registration of Real Estate
Brokers & Salesmen, 13 Mass.App.Ct. 922, 922
), and we invite the board to consider clarifying its
notice so that it is consistent with the language of §
87BBB (C), namely that the remedy provided therein
"shall be exclusive."
though we believe that Thomann should have sought judicial
review in the Superior Court under § 87BBB, and not in
the county court directly under § 64, we shall proceed
to consider his appeal. The single justice clearly had the
authority to transfer the matter that was commenced in this
court to the Superior Court; and, vice versa, had it been
commenced in the Superior Court, as we believe it should have
been, she clearly would have had the authority to transfer it
here. See G. L. c. 211, § 4A. See also Beres v.
Board of Registration of Chiropractors, 459 Mass. 1012,
Correctness of the board's decision and
single justice reviewed the record before her, including the
pleadings and the administrative record filed by the board,
and affirmed the board's final decision and order. We
agree with the single justice that there was no error in the
board's decision. See Weinberg v. Board of
Registration in Med., 443 Mass. 679, 685 (2005) (under
G. L. c. 3OA, § 14 , court "reviews the decision