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SJC-12360

   MICHAEL THOMANN   vs. BOARD OF REGISTRATION OF REAL ESTATE
                      BROKERS AND SALESMEN.1



                       December 10, 2018.


Real Property, License to sell. License. Administrative Law,
     Judicial review. Due Process of Law, Administrative
     hearing.


     Michael 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.

     1. Proceedings before the board of registration. In
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).2 The board asserted, on the basis of those

     1 The board, so named, is established by G. L. c. 13, § 54.
The board refers to itself as the "Board of Registration of Real
Estate Brokers and Salespersons."

     2 The board additionally alleged that Thomann assumed duties
and responsibilities of a business entity engaged in the real
estate brokering business without adequate preparation or
competency, in violation of 254 Code Mass. Regs. § 3.00(14)(e),
                                                                   2


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.

     The 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.3 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.




by failing to comply with certain liability insurance
requirements. See 254 Code Mass. Regs. § 2.00(12) (2013).
Although the hearing officer determined that the violation had
been established, the board did not consider it a separate
violation for purposes of sanction. The violation was not
challenged on appeal, and we do not address it further.

     3 The tentative decision did not repeat all of the facts and
conclusions of law on which the summary ruling was based. It
did, however, expressly provide that "the Ruling on Summary
Decision established liability in this forum."
                                                                   3


c. 112, § 87BBB, or by filing a petition for review in the
county court within thirty days, pursuant to G. L. c. 112, § 64.

     On 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 followed.

     2. Procedure for judicial review. Judicial 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. 30A,
§ 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.

     In the 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
                                                                   4


Superior Court, not this court, as the forum for judicial
review, and states that this remedy "shall be exclusive."4

     The 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, or 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
[1982]), 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."5

     Even 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

     4 Contrast G. L. c. 112, § 84A, which governs decisions of
the Board of Registration in Embalming and Funeral Directing.
That statute, like § 87BBB, also identifies a procedure other
than a petition in the county court under G. L. c. 112, § 64, as
a means of obtaining judicial review. It states that judicial
review may be obtained by filing a petition in the District
Court within ten days of the board's decision. Unlike § 87BBB,
however, § 84A states that the District Court procedure provided
therein "is in the alternative to that provided by [§ 64], and a
decision of the court upon a petition brought under [§ 84A]
shall be final and conclusive" (emphasis added). A party
aggrieved by a decision of the Board of Registration in
Embalming and Funeral Directing thus can proceed in one of two
ways: either in the county court pursuant to § 64, or in the
District Court pursuant to § 84A. See Hamel v. Board of
Registration of Funeral Directors & Embalmers, 449 Mass. 1008,
1009 n.1 (2007).

     5 If the Legislature believes that we have misconstrued what
appears to us to be the plain language and purpose of
§ 87BBB (C), it is, of course, free to clarify the statute
accordingly.
                                                                   5


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, 1013 (2011).6

     3. Correctness of the board's decision and sanction. The
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. 30A, § 14 [7], court
"reviews the decision of the board directly, despite this matter
being brought as an appeal of a decision of the single
justice").

     a. Facts. We summarize the facts stated by the hearing
officer, as modified and adopted by the board, reserving other
facts for later discussion.7 We conclude that the findings were
supported by substantial evidence. See Weinberg, 443 Mass. at
685.

     Thomann is the sole manager of Boston International Group,
LLC (LLC), a Massachusetts limited liability company. Its
certificate of organization represented publicly that it would
engage in business including "commercial real estate." It does
not have its own real estate broker's license. See G. L.
c. 112, § 87UU; 254 Code Mass. Regs. § 2.00(11) (2013). The
board found that, "[o]n or about January 3, 2013, Boston

     6 As stated, actions commenced in the Superior Court in
accordance with § 87BBB (C) must be brought within twenty days
of receipt of notice of the board's decision in order to be
timely, whereas actions commenced in the county court pursuant
to § 64 must be brought within thirty days. Thomann represents
that he received the final decision on September 30, 2016, and
there is nothing to suggest he received any earlier notice.

     7 Like the single justice, we decline to consider evidence
that was not before the board. See G. L. c. 112, § 64
(incorporating standards of review provided in G. L. c. 30A,
§ 14 [3]-[7]); G. L. c. 112, § 87BBB (C) (on appeal, reviewing
court shall hear all "pertinent evidence"). See also Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 630 (2011) (judicial review of administrative
agency decision confined to administrative record).
                                                                   6


International Group, LLC, [doing business as] Boston
International Group, entered into a Marketing Agreement for
Exclusive Right to Sell (the 'Marketing Agreement') real
property located at 167 Revere Beach Parkway in Chelsea,
Massachusetts (the 'Property')." Although the marketing
agreement identified only "Boston International Group" and not
"Boston International Group, LLC," as the "Broker," substantial
evidence supports the board's finding that the LLC was both a
party to the agreement and the entity that was actively engaged
in the real estate brokering activities for the property. See
Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674
(2010). In addition, in August 2013, the LLC (identifying
itself in its complaint as "Boston International Group, LLC[,
doing business as] The Boston International Group, Ltd")
commenced an action in the Superior Court against the other
parties to the marketing agreement, alleging breach of the
agreement and seeking payment of a brokerage commission to the
LLC. The complaint averred:

         "5. On January 3, 2013, the Defendants, Nobrega's
    Inc. and Robert J. Nobrega, individually and as agent of
    the [Nobrega Nominee] Trust, and the Plaintiff, entered
    into an Exclusive Right to Sell Agreement (hereinafter 'the
    Agreement'), regarding the sale of the Property owned by
    the Trustee Defendants located at 167 Revere Beach Parkway,
    Chelsea, Massachusetts.

         " . . .

         "10. Under the Exclusive Right to Sell Agreement, the
    Defendants, Nobrega's, Inc. and Robert J. Nobrega,
    individually and as Trustee of the Nobrega Nominee Trust
    are obligated to pay the Plaintiff a brokerage commission
    ([six percent]) upon the sale of Defendant's property
    during the term of the agreement."

In its answer to a counterclaim filed by the defendants, the LLC
also expressly admitted the allegation that "Boston
International Group, Boston International Group, Ltd., and
Boston International Group, LLC, are not duly licensed as . . .
real estate brokers."8

    8  The LLC subsequently amended its complaint to substitute
"Michael Thomann [doing business as] The Boston International
Group" for the LLC as the plaintiff in the action. Nonetheless,
the board was entitled to find, and did so find, based on all
the evidence in the record, including the representations made
                                                                   7


     b. Conducting brokering activities through unlicensed
entity. The gravamen of Thomann's argument is that he performed
all of the brokering activity under his individual real estate
broker's license using his business name, "Boston International
Group," and not through the LLC.9 On the evidence before it,
however, the board was warranted in concluding, as it did, that
Thomann had actually engaged in the business of real estate
brokering through the LLC (which had no license) without first
obtaining a separate license for the LLC, in violation of 254
Code Mass. Regs. §§ 2.00(11) and 3.00(14)(e). That conclusion
was supported by substantial evidence.

     The LLC's certificate of organization indicates that
Thomann is its sole manager. The LLC's business was described
in this public filing to include services related to "commercial
real estate" and "any activities directly or indirectly related
thereto."10 Additionally, in a draft fee agreement for the
transaction in this case, Thomann had presented the LLC and
himself to the client as the "Seller's Agent," and outlined the
fee for services due on the sale of property. A notation on the
agreement indicates that it was provided to the client.
Further, when the dispute later arose, the lawsuit was commenced
against the client in the LLC's name demanding payment of a real
estate brokerage fee; in the same action, the LLC acknowledged
that it was not licensed to engage in the real estate business.
The board did not err in concluding that Thomann's conduct --
acting through the unlicensed LLC to broker the sale of the
property -- violated 254 Code Mass. Regs. §§ 2.00(11) and
3.00(14)(e).




in the original complaint, that the LLC was both a party to the
marketing agreement and the entity that served as the broker.

     9 A real estate broker may "operat[e] under a business or
trade name (doing business as)," provided notice is given to the
board. 254 Code Mass. Regs. § 3.00(3) (1998). Thomann had in
fact earlier provided notice to the board that he was doing
business as "Boston International Group." The board apparently
never was told, however, and would have had no reason to know,
that Thomann was actually operating through a limited liability
company.

     10 In addition, Thomann stated to the board's investigator
that "Boston International Group LLC is registered with MA RE
Board."
                                                                   8


     c. Notice of agency disclosure.11 On appeal, Thomann also
challenges the determination that he violated the agency
disclosure requirements of 254 Code Mass. Regs. § 3.00(13)(a).
That regulation requires real estate brokers to provide
prospective purchasers and sellers of real estate with "a notice
developed and approved by the board which clearly discloses the
relationship of the broker or salesperson with the prospective
purchaser or seller of the real estate . . . at the time of the
first personal meeting between the prospective purchaser or
seller and the broker or salesperson for the purpose of
discussing a specific property" (emphasis added). Id.

     In the summary decision ruling, the hearing officer
determined that there was no evidence that Thomann gave the
board-approved agency disclosure notice to the seller of the
property that was the subject of the marketing agreement.
Although Thomann asserted -- without a supporting affidavit or
other evidence -- that he had in fact provided notice, the
sample agency disclosure form he claimed to have provided to his
real estate clients differed in material respects from the form
approved by the board. The hearing officer also found that
Thomann failed to provide the form to the client at the
appropriate time, i.e., in 2013, at the time the LLC entered
into the marketing agreement and undertook to provide broker
services, and that he failed to retain a copy of the form for
the time period required by the regulations. See 254 Code Mass.
Regs. § 3.00(13)(a)(1) (three years from date of notice). There
was substantial evidence in the record to support the finding of
a violation in this respect.12

     d. Other claims of error. On appeal, Thomann also raises
assorted other claims. He contends that the board failed to

    11 On appeal from the single justice's judgment, Thomann
asserts for the first time that he used the board-approved
disclosure form, and appended a blank copy of the form to his
brief. We decline to reach claims and assertions like this that
were not raised during the administrative proceedings or before
the single justice. See Weinberg v. Board of Registration in
Med., 443 Mass. 679, 688 (2005).

    12 Although the board's final decision and order does not
contain express findings concerning the hearing officer's
summary ruling, it references the summary ruling, and it adopts
the tentative decision (with certain modifications), which in
turn referenced both the regulatory violations and the
supporting summary ruling.
                                                                   9


reasonably accommodate his alleged disability, and otherwise
violated his right to due process. He also claims that he was
denied the assistance of legal counsel. While we do not address
each of his claims specifically, we have reviewed each of them
and find them without merit. With respect to the right to
counsel, the record indicates that Thomann was in fact
represented by multiple attorneys during the course of the
administrative proceedings, and that he discharged his attorney
after objections to the tentative decision had been filed. The
record also demonstrates that Thomann was given multiple
extensions of time to file materials at various stages of the
proceedings. With respect to his claim of disability, there is
nothing in the administrative record to suggest that Thomann
requested or was denied any reasonable accommodation by the
board, or that he substantiated any such claim. In sum, the
record amply supports the conclusion that the proceedings before
the board comported with due process requirements. See, e.g.,
Langlitz v. Board of Registration of Chiropractors, 396 Mass.
374, 377 (1985).

     4. Sanction. Once statutory or regulatory violations have
been established, the administrative agency has discretion in
determining the appropriate sanction. See G. L. c. 112, §§ 61,
65A. On appeal, we consider only whether the sanction imposed
was a reasonable exercise of that discretion. See Sugarman v.
Board of Registration in Med., 422 Mass. 338, 347-348 (1996).
See also Vaspourakan, Ltd. v. Alcoholic Beverages Control
Comm'n, 401 Mass. 347, 355 (1987). A reviewing court will not
interfere with the agency's imposition of a penalty except in
the most extraordinary circumstances. Id. No such
circumstances are present here.

     In this case, we conclude that the board reasonably
exercised its discretion when it sanctioned Thomann. The $1,200
civil administrative penalty was within the range permitted by
statute. See G. L. c. 112, § 61; G. L. c. 112, § 65A. "Given
that the range of penalties is for the agency, the fact that the
[board] imposed more lenient penalties for similar violations in
the past does not render the sanctions against [Thomann]
arbitrary or capricious." BAA Mass., Inc. v. Alcoholic
Beverages Control Comm'n, 49 Mass. App. Ct. 839, 849 (2000).
The ten-day suspension given to Thomann is actually less than
the period imposed by the board for similar violations in other
cases, and is reasonable in the circumstances of this case.
With respect to the requirement that Thomann either obtain a
real estate brokering license for the LLC or certify that the
LLC has been dissolved, we conclude that that requirement is
                                                                  10


also reasonable, particularly in light of the business purposes
articulated in the LLC's certificate of organization.

     5. Conclusion. For all of these reasons, we agree with
the single justice that the board's decision suspending
Thomann's license for ten days, imposing a $1,200 civil penalty,
and imposing certain conditions on the reinstatement of his
license was supported by substantial evidence and free from any
errors of law.

                                   Judgment affirmed.


     The case was submitted on briefs.
     Michael Thomann, pro se.
     Maura Healey, Attorney General, & Kimberly A. Parr,
Assistant Attorney General, for Board of Registration of Real
Estate Brokers and Salesmen.
