MICHAEL BOTELHO v. DIRECTOR OF THE DIVISION OF MARINE FISHERIES & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-342

MICHAEL BOTELHO

vs.

DIRECTOR OF THE DIVISION OF MARINE FISHERIES & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Michael Botelho, appeals from an order of a

Superior Court judge allowing the defendants' motion for

judgment on the pleadings, thereby affirming a decision of the

Division of Marine Fisheries (division) not to renew certain of

the plaintiff's fishing and charter boat permits. We affirm.

To successfully challenge the division's decision under

G. L. c. 30A, § 14 (7), the plaintiff must establish that "it

was not supported by substantial evidence, was arbitrary or

capricious, or was otherwise based on an error of law." Ten

1The Division of Marine Fisheries. We have corrected the
misnomer of the division as identified in the complaint and
substituted the title of the director for the individual
defendant named in the complaint.
Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228

(2010). "This standard is highly deferential to an agency and

requires according due weight to the experience, technical

competence, and specialized knowledge of the agency, as well as

to the discretionary authority conferred upon it" (quotations

and citations omitted). Id. We review de novo a Superior Court

judge's order allowing a motion for judgment on the pleadings,

as our review is based on, and limited to, the same

administrative record. See Sullivan v. Superintendent, Mass.

Correctional Inst., Shirley, 101 Mass. App. Ct. 766, 772 (2022);

Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App. Ct.

729, 733-734 (2018).

The plaintiff's principal claim on appeal is that the

sanction of "nonrenewal of licenses with no path toward

reinstatement" was "excessive" under the circumstances. The

plaintiff did not raise this claim at the agency level. In

fact, even though the presiding officer's tentative decision

recommended "to not renew, or in the alternative, to suspend

[the plaintiff's licenses] for a substantial length of time,"

and the plaintiff filed ten written objections, he did not make

any argument that the recommended sanction was excessive. "A

party is not entitled to raise arguments on appeal that he could

have raised, but did not raise, before the administrative

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agency" (quotation and citation omitted). Foxboro Harness, Inc.

v. State Racing Comm'n, 42 Mass. App. Ct. 82, 85 (1997).

Even if the plaintiff's claim were properly before us, he

offers no basis in law or in fact on which we could conclude

that the sanction was excessive. Not one of the four cases he

cited in support of this claim 2 stands for the proposition that

an agency decision may be reversed on the ground that the

penalty imposed was excessive. He does not raise an Eighth

Amendment claim or make any reasoned argument that nonrenewal is

"grossly disproportional to the gravity of [his] offense."

United States v. Bajakajian, 524 U.S. 321, 334 (1998). See,

e.g., Public Employee Retirement Admin. Comm'n v. Bettencourt,

474 Mass. 60, 71-75 (2016) (applying multifactor test to

conclude that forfeiture of $659,000 in retirement benefits was

excessive fine for crime of unauthorized access to computer

system); Bisignani v. Justices of the Lynn Div. of the Dist.

Court Dep't of the Trial Court, 100 Mass. App. Ct. 618, 622-626

(2022) (applying multifactor test to conclude that forfeiture of

2 Bagley v. Contributory Retirement Appeal Bd., 397 Mass.
255 (1986), and Retirement Bd. of Brookline v. Contributory
Retirement Appeal Bd., 33 Mass. App. Ct. 478 (1992), have no
apparent bearing on the plaintiff's claim. Silva v. Director of
the Div. of Marine Fisheries, 46 Mass. App. Ct. 608 (1999), and
Commonwealth v. Weiss, 2004 Mass. App. Div. 144 (2004), both
held that civil sanctions, including the suspension of a
lobstering license in Silva, were not so punitive that they
amounted to criminal punishment for double jeopardy purposes.

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approximately $1.5 million in retirement benefits was not

excessive fine for procurement fraud and related offenses).

Nothing in the administrative record, the Superior Court record,

or the plaintiff's brief provides any basis to conclude that the

nonrenewal of his licenses based on his record of infractions

presented circumstances "that would justify our interference in

the [division's] exercise of its discretion in terms of the

sanction." Anusavice v. Board of Registration in Dentistry, 451

Mass. 786, 802 (2008), quoting Korbin v. Board of Registration

in Med., 444 Mass. 837, 850 (2005).

The plaintiff also summarily suggests, with no citation to

legal authority, that the division (1) erred by holding him

responsible for his charter patrons' violations of size and

catch limitations without establishing any negligence on his

part and (2) engaged in selective enforcement by sanctioning him

while others were merely given verbal warnings. "Briefs that

limit themselves to 'bald assertions of error' that 'lack[]

legal argument . . . [do not] rise[] to the level of appellate

argument' required by rule 16" of the Massachusetts Rules of

Appellate Procedure. Kellogg v. Board of Registration in Med.,

461 Mass. 1001, 1003 (2011), quoting Zora v. State Ethics

Comm'n, 415 Mass. 640, 642 n.3 (1993). "As both a legal and a

practical matter, [the plaintiff's] submissions provide an

insufficient basis for this court reasonably to consider his

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claims." Kellogg, 461 Mass. at 1003. In any event, we are

persuaded by the division's arguments that (1) the relevant

regulation does not require a showing of negligence, but rather

imposes strict liability on charter captains for their

customer's violations and (2) the plaintiff's selective

enforcement claim has no basis in law.

Judgment affirmed.

By the Court (Massing,
Neyman & Wood, JJ. 3),

Clerk

Entered: June 2, 2025.

3 The panelists are listed in order of seniority.

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