Licensure Policy 04-07-08

Title

Determination of Good Moral Character Compliance for Initial Broker or Salesperson Licensure by Examination, Reciprocity, Waiver of Educational Requirement or as an Attorney Broker. This policy also applies to the renewal of a license.

Purpose

The Board of Registration of Real Estate Brokers and Salespersons (Board) establishes this policy to identify its criteria for determining whether an applicant for initial licensure by examination, reciprocity, waiver of educational requirement or as an attorney broker (permitted by the licensing law)meets the prerequisite for licensure that such applicant be "of good moral character" (GMC) as required by Massachusetts General Laws (G.L.) Chapter 112, section 87AAA and the Board's regulations at 254 CMR 2.00. The Board will also use this policy as a guide for determinations of GMC of salespersons and brokers licensed by the Board if and when such questions arise.

Date Adopted/Revised: April 7, 2008; effective April 7, 2008.

Application of Policy

The Board will evaluate each application for initial licensure permitted by the licensing law under the policy governing the determination of GMC in effect on the date the Board receives the application.

GMC is Prerequisite for Licensure and licensure Renewal

DETERMINATION OF GMC COMPLIANCE

Each applicant must be "of good moral character" for the Board to approve the applicant for licensure. The word "applicant" shall hereinafter be used to mean any applicant for initial Massachusetts licensure as a real estate salesperson or broker.

Attributes of GMC

The Board shall determine whether an applicant possesses the GMC essential for the safe and competent practice as a real estate agent by evaluating the applicant's demonstrated honesty, trustworthiness, integrity, accountability, reliability, ability to distinguish between right and wrong and to observe the difference between the two, avoidance of aggression to self and others, and avoidance of injustice and deceit, among other relevant attributes.

Conduct Demonstrating Absence of GMC

The Board has determined that certain conduct demonstrates the absence of the GMC essential for safe and competent practice as a real estate agent. Such conduct includes hostile or destructive conduct to another or to self and conduct that demonstrates a disregard for the welfare, safety or rights of another or disregard for honesty, integrity or trustworthiness. Examples of such conduct include, but are not limited to, the conduct underlying certain criminal convictions and disciplinary actions taken by a licensing authority, commission or board in another jurisdiction based on a criminal conviction.

Burden of Demonstrating GMC is on the Applicant

The burden of demonstrating that an applicant for initial licensure or renewal licensure is of "good moral character" is on the applicant. The applicant bears the burden of submitting to the Board for its evaluation documentation and other information upon which the Board may rely in determining whether the applicant possesses the requisite GMC. In evaluating an applicant's GMC, the Board considers all available pertinent information as to the applicant's present and past conduct

"Conviction" Defined

For the purpose of this Policy, "conviction" means the final judgment on a verdict or finding of guilty, a plea of guilty, a plea of nolo contendere (no contest), or a plea treated by the court as a guilty plea, regardless of the jurisdiction in which the conviction was entered.

All Criminal Cases and Disciplinary Actions Must be Closed

The Board will not evaluate any application for compliance with the GMC requirement submitted by an applicant with any conviction(s) or with disciplinary action(s) imposed by a licensure authority, commission or board until the applicant has provided documentation satisfactory to the Board that the applicant has met:

1) all court-ordered requirements and that all criminal matters involving the applicant have been closed including the completion of any probation; and
2) all requirements imposed by a licensure authority, commission or board in connection with disciplinary action.

Mandatory Permanent Exclusion

CONDUCT WARRANTING MANDATORY PERMANENT EXCLUSION FROM LICENSURE AND LICENSURE RENEWAL

The Board has determined that the conduct underlying certain felony convictions poses an unacceptable risk to the public health, safety or welfare or to the provision of safe and competent practice as a real estate agent. Such conduct includes, but is not limited to, any of the following:

1) the conduct underlying the crimes listed on Attachment A;
2) the conduct underlying any violent crime against any person(s) that exhibits intentional or deliberate extreme disregard of human life;
3) trafficking in, or illegally manufacturing, any controlled substance; and
4) exploitation or criminal mistreatment of a vulnerable individual including, but not limited to, a minor, elder and/or disabled person.

The Board shall permanently exclude from licensure as a real estate agent in Massachusetts an applicant who has engaged in such conduct as identified above and as evidenced by certified official records or other similarly reliable documentation.

Mandatory Temporary Exclusion

CONDUCT WARRANTING MANDATORY TEMPORARY EXCLUSION FROM LICENSURE AND LICENSURE RENEWAL

The Board has also determined that unless the exception to mandatory temporary exclusion set forth in the section below applies, an unreasonable risk to the public health, safety or welfare, or to the provision of safe and competent services as a real estate agent, or both, is posed where the applicant has engaged in any of the following conduct within the five (5) year period immediately preceding the date the applicant submits an application for licensure:

1) any criminal conviction that does not otherwise require mandatory permanent exclusion under this Policy;
2) knowingly falsifying, or knowingly attempting to falsify, any documentation or information submitted on an application for examination or licensure that is directly related to the qualifications for such examination or licensure, or
3) cheating on any examination for licensure offered by the Board or through its agent.

The Board shall temporarily exclude from licensure, for the duration set forth below, an applicant who has engaged in any of the conduct described above and as evidenced by certified official records or other similarly reliable documentation.

Duration of the Mandatory Temporary Exclusion

The period of such mandatory temporary exclusion shall be as follows:

1) at least five (5) years from the date of the most recent conviction or date the conduct at issue last occurred whichever is later, and
2) at least one (1) year from the date of the applicant's successful completion of all court-ordered requirements where any such requirements have been imposed.

Exception to the Mandatory Temporary Exclusion

EXCEPTION TO THE MANDATORY TEMPORARY EXCLUSION

An applicant who falls under the Mandatory Temporary Exclusion section of this Policy as set forth above, due to his or her criminal conviction may nevertheless request that the Board evaluate his or her compliance with the GMC licensure requirement in accordance with the case by case evaluation process set forth in the section below, provided that, the applicant meets all of the following requirements:

1) the applicant has submitted a written request for the Board's determination of his or her compliance with the GMC requirement, together with substantiating documentation satisfactory to the Board;
2) the applicant:

a) during the five (5) years immediately preceding the date that the applicant submits an application for licensure he or she has only one criminal conviction for a single misdemeanor offense or multiple criminal convictions for misdemeanor offenses that are all based on the same criminal incident or episode;
b) was not sentenced to any period of incarceration, whether suspended or stayed; and
c) has successfully completed all related court-ordered requirements, if any, including probation;

3) the applicant's criminal conduct, if it occurred outside Massachusetts, would constitute a misdemeanor if it had occurred in Massachusetts;
4) the crime(s) for which the applicant was convicted was victimless and nonviolent; and
5) the applicant has no open criminal case(s) against him or her.

If the Board finds that an applicant meets all of the above-referenced requirements for it to approve an exception to mandatory temporary exclusion, the applicant's GMC compliance will then be determined by the Board in accordance with the case by case evaluation process set forth in the section below.

Case by Case GMC Evaluation

CASE BY CASE EVALUATION PROCESS FOR DETERMINATION OF GMC COMPLIANCE

In each case where an applicant is not required to be permanently or temporarily excluded from licensure under this Policy the Board will evaluate the applicant's compliance with the GMC requirement on a case by case basis in accordance with the process and factors enumerated as follows:

The Board will evaluate any conduct of the applicant that demonstrates an absence of the necessary attributes of GMC as set forth above in this Policy to determine whether the conduct:

1) poses a threat to the public health, safety or welfare;
2) is of significance to the provision of safe and competent services as a real estate agent; and
3) is characteristic of the applicant's conduct.

In making its determination of an applicant's compliance with the GMC requirement, the Board will evaluate factors including, but not limited to:

1) the nature and seriousness of all conduct at issue, including any criminal conviction(s) or disciplinary action(s) by a licensure authority, commission or board;
2) the sufficiency of the applicant's sustained rehabilitation;
3) the applicant's age at the time all conduct at issue occurred;
4) the frequency of occurrence of all conduct at issue;
5) the recency of all conduct at issue;
6) any mitigating or aggravating circumstances related to the
conduct; and
7) the applicant's acknowledgment of her or his accountability for her or his conduct and recognition of its significance to licensure as a real estate agent.

Determination of GMC Compliance and Eligibility

An applicant who the Board determines to be in compliance with the GMC requirement will be eligible for licensure upon the applicant's successful completion of all other licensure requirements or both.

An applicant who the Board determines is not in compliance with the
GMC requirement will not be eligible for licensure and such licensure will be denied.

Notice of Denial

The Board will notify in writing each applicant whom the Board does not find eligible under this Policy of its decision to deny licensure, the reason(s) for the denial, and the opportunity for review of the denial. As part of its notification, the Board, in its discretion, may also inform the applicant of the requirements, if any, that the applicant must satisfy before the applicant may reapply for licensure.

Review of Denial Based on Noncompliance with GMC Licensure Requirement

When licensure is denied under this Policy, the Board shall afford the applicant an opportunity for a hearing where the applicant alleges, and can reasonably substantiate, the existence of specific areas of material factual dispute relevant to the issue of licensure under this Policy. If there are no areas of material factual dispute, the Board may consider the applicant's written submissions in rendering a final decision on review. Judicial review of a Board final decision to deny licensure may be sought as provided by G.L. c. 30A, § 14.

ATTACHMENT A

Criminal Convictions Excluding Individuals from Initial Licensure as a Licensed Real Estate Salesperson or Broker by Examination, Reciprocity, Waiver of Educational Requirements or as an Attorney Broker

The felony convictions that will result in the mandatory permanent ineligibility for initial Massachusetts licensure as a Licensed Real Estate Salesperson or Broker by the Board include, but are not limited to, convictions (as defined by Licensure Policy 06-04-07) for any of the following criminal offenses by any court in the Commonwealth of Massachusetts, or convictions for any similar criminal offenses by a court in another state or by a federal court:



CONVICTION

DEFINITION

Murder

First degree murder is the killing of a human being committed with deliberately premeditated malice aforethought (intentionally), or with extreme cruelty. All other murder, arising from reckless or negligent conduct, is second degree murder.

Rape

Sexual intercourse by a person with another person who is compelled to submit against their will by force or threat of bodily injury or sexual intercourse with a child under sixteen years of age.

Aggravated sexual assault

The unwanted touching of the genitals, mouth or anus of one person by the genitals of another person as the result of violence, force or the threat of force.

Assault with intent to rape

The use of force or the threat of force with intent to commit rape.

Armed assault with intent to murder with felony intent

Assaulting another with intent to commit murder or maim or disfigure that person.

Armed assault with intent to rob

While being armed with a dangerous weapon assaulting another and robbing, stealing or taking money or personal property from that person.

Burglary, armed assault on occupant

Breaking and entering a dwelling in the nighttime, to commit a felony, armed with a dangerous weapon at the time of such breaking, with any other person being lawfully therein.

Kidnapping

Without lawful authority, forcibly or secretly confining or imprisoning another person within this commonwealth against his will or forcibly carrying a person from the commonwealth against their will or secretly confining or imprisoning a person.

Breaking and entering, day/night, intent to commit felony, fear

Entering or breaking and entering, in the day time, a building, ship, vessel or vehicle with intent to commit a felony and placing any person lawfully therein in fear.

Burning a building

Willfully and maliciously setting fire to, burning or causing to be burned a building other than a dwelling.

Burning dwelling house (attempt)

Willfully and maliciously setting fire to, burning or causing to be burned a dwelling house or a building adjacent to a dwelling house.

Indecent assault and battery, child under 14

Any unwanted touching of the breast or genitals either directly or indirectly, enhanced penalty if the victim is fourteen years of age.

Indecent assault and battery, child 14 or over

Any unwanted touching of the breast or genitals either directly or indirectly, enhanced penalty if the victim is fourteen years of age.

Unnatural acts with child under 16

Committing any unnatural and lascivious act with another person, enhanced penalty if the other person is under sixteen years of age.

Assault and battery dangerous intimidation, race, color, religion

Committing an assault or a battery upon a person or damaging the real or personal property of a person with the intent to intimidate such person because of such person's race, color, or religion; an enhanced penalty is imposed if serious bodily injury occurs.

Administering drugs to obtain sex

Administering to or Causing to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have unlawful sexual intercourse.

Induce sex, minor

Inducing any person under eighteen of chaste life to have unlawful sexual intercourse.