Kaplan v. Board of Public Accountancy
Kaplan v. Board of Public Accountancy
Opinion of the Court
The Board of Public Accountancy (board) suspended the license of Kenneth L. Kaplan (petitioner) to practice public accounting for three years. The petitioner appealed unsuccessfully to a single justice of this court, under G. L. c. 112, § 64. The petitioner now appeals to this court. We affirm.
Background. The petitioner was first licensed to practice accountancy in 1976. Some time thereafter, he allowed his license to lapse while he pursued other business ventures. Among those ventures was a retail home appliance business. In 2003, the Attorney General commenced a G. L. c. 93A action in the Superior Court against the petitioner, claiming, among other things, that he had falsely charged customers for goods they did not receive. The case was resolved in April, 2005, by a consent judgment, under which the petitioner, while admitting no wrongdoing, agreed not to engage in any similar business for five years.
Before the G. L. c. 93A matter was resolved, the petitioner was charged in the District Court with larceny over $250, in connection with another appliance business that he ran: he had failed to pay a supplier for kitchen appliances that he had ordered for a customer. In October, 2004, following a jury-waived trial, the petitioner was found guilty, sentenced to two years of probation, and ordered to pay restitution in the amount of $9,400. He appealed.
In May, 2005 —■ one month after he settled the G. L. c. 93A matter and agreed not to engage in retail businesses of the type he had previously engaged in — the petitioner applied to renew his accountant’s license. One of the questions on the application was whether the petitioner had “been found guilty of any criminal offense.” Under the pains and penalties of peijury, the petitioner falsely answered, “[N]o.” The following year, in March, 2006, in filling out an application to become a notary public, he answered, “[Y]es,” to a similar question — “Have you ever been convicted of a crime or admitted to facts sufficient to warrant a finding of guilty?” The petitioner appended a
Based on the petitioner’s larceny conviction and his false statement on his renewal application, the board, in May, 2006, issued to the petitioner an order to show cause why it should not suspend, revoke, or take other action against his license. Prosecuting counsel for the division of professional licensure moved for summary decision. See 801 Code Mass. Regs. § 1.01(7)(h) (1998). The board allowed the motion, concluding that the undisputed evidence showed the petitioner had been convicted of larceny over $250, and had lied about that conviction on his renewal application. See G. L. c. 112, §§ 61, 87C
A sanctions hearing took place, at which the petitioner and his defense counsel in the larceny case testified. Thereafter, the board issued a final decision in which it incorporated its earlier decision allowing the motion for summary decision; found no mitigating circumstances; found aggravating circumstances (a pattern of similar financial misconduct shown by the G. L. c. 93A matter and the petitioner’s criminal charges above and beyond the larceny conviction; and the petitioner’s demeanor during the hearing); and ordered his accountant’s license suspended for three years.
Discussion. We review the board’s decision in accordance with the standards set forth in G. L. c. 30A, § 14(7). See Birudavol v. Board of Registration in Med., 448 Mass. 1031, 1031 (2007). The board neither abused its discretion nor made any other error of law in sanctioning the petitioner based on his felony conviction and his false denial of that conviction on his renewal application. See G. L. c. 112, § 87CV2 (board may suspend license up to five years for, inter alla, fraud or deceit in obtaining license; or conviction of a felony or any crime of which dishonesty or fraud is an element). See also G. L. c. 112, § 61 (if license holder knowingly makes false statement in license application where statement made under penalties of perjury, board “shall” revoke license).
As for the sanction, the board did not abuse its discretion in suspending the
We have reviewed the petitioner’s procedural challenges to the sanctions hearing — the striking of testimony about the facts underlying the larceny conviction; and the limiting of the petitioner’s testimony to answering the questions posed by prosecuting counsel — and find them lacking in merit. See Kobrin v. Board of Registration in Med., 444 Mass. 837, 846 (2005) (conviction conclusive proof petitioner convicted of Medicaid fraud); G. L. c. 30A, § 11 (2); 801 Code Mass. Regs. §§ 1.01(10)(d) (1998). We do not address the petitioner’s claim about how much time he was allotted to present his case, as he raised that claim for the first time in this appeal. See Friedman v. Board of Registration in Med., 408 Mass. 474, 479 (1990), cert. denied, 498 U.S. 1107 (1991).
Judgment affirmed.
In December, 2007, the Appeals Court affirmed the conviction but, in accordance with a concession by the Commonwealth, reduced the amount of restitution to $4,700. See Commonwealth v. Kaplan, 70 Mass. App. Ct. 1115 (2007). In January, 2008, this court denied further appellate review. See Commonwealth v. Kaplan, 450 Mass. 1108 (2008).
See also G. L. c. 112, § 61 (5) (discipline authorized where license holder “engaged in dishonesty, fraud or deceit which is reasonably related to the practice of the profession”); Gurry v. Board of Pub. Accountancy, 394 Mass. 118, 121-125 (1985) (suspending accountant’s license for two years where he misappropriated funds of company for which he served as treasurer).
The petitioner complains that the board articulated an unfairly low standard in stating that he knew or should have known that his denial of his conviction was false. The petitioner, however, raised no genuine issue of fact on the question whether he knew the
See Gurry v. Board of Pub. Accountancy, supra at 123 (“our decisions involving the medical board provide some guidance as to the nature of the statutory disciplinary authority granted to other such regulatory boards”).
Reference
- Full Case Name
- Kenneth L. Kaplan v. Board of Public Accountancy
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- Published