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“Repeat offender” sanctions not applicable for two failures to disclose same conviction

hearing-roomAn appellate court in Massachusetts, in a May 9 decision, overturned a sanction issued against a real estate appraiser after the state’s appraiser board disciplined the licensee as a repeat offender, despite the fact that he had not been previously disciplined (Long v. Board of Registration of Real Estate Appraisers).

After the Massachusetts Board of Registration of Real Estate Appraisers sanctioned licensee Steven Long for failing to disclose a seventeen-year-old conviction for driving under the influence on a license renewal application and for being a repeat offender, Long appealed, arguing that the board did not have the authority to discipline him for making a statement he claims he did not know was false.

The Appeals Court of Massachusetts, hearing the case, quickly disposed of Long’s primary argument, noting that the statute under which he was disciplined did not require that his untruthful nondisclosure be made knowingly.

However, the court rejected the board’s decision to discipline Long as a “repeat offender” because Long failed to disclose his conviction on both his initial application for licensure and on his renewal form. The court held that, because the board had not disciplined Long for his nondisclosure on the initial licensing form, “there is no evidence that he acted in disregard of having been disciplined for similar conduct before,” removing any justification for second offender treatment.

Also, while the board is authorized to impose a penalty even for a first offense, the court noted that “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 DUI conviction on his application for renewal of a real estate license.”

The case was remanded to the board to reconsider its sanctions.