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SJC-13864
MD ZAFAR vs. STATE LOTTERY COMMISSION.
Plymouth. March 2, 2026. - May 13, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
State Lottery Commission. Lottery. License. Administrative Law, Regulations, Agency's interpretation of statute, Substantial evidence, Judicial review. Regulation. Statute, Construction. Constitutional Law, Regulation. Due Process of Law, Vagueness of regulation. Practice, Civil, Burden of proof, Judgment on the pleadings. Evidence, Acquittal in prior criminal trial. Rape.
Civil action commenced in the Superior Court Department on March 7, 2024.
The case was heard by Mark A. Hallal, J., on motions for judgment on the pleadings.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Konstantin Tretyakov, Assistant Attorney General, for the defendant. Jason C. Howard for the plaintiff. 2
KAFKER, J. As provided by statute, the director of the
State Lottery Commission (commission) "shall license as agents
to sell lottery tickets such persons as in his opinion will best
serve the public convenience," and "may refuse to issue a
license to any person who has been convicted of a felony . . .
and who, in the opinion of [the] director, is not of good moral
character to act as a licensed agent to sell lottery tickets."
G. L. c. 10, §§ 26, 27. Here, the plaintiff, MD Zafar, sought
to renew his sales agent license for one of his convenience
stores. The commission learned during the application process
that Zafar had been charged with and acquitted of raping his
wife. Relying on the transcripts from Zafar's criminal trial,
and discrediting Zafar's testimony before him, a hearing officer
found by a preponderance of the evidence that Zafar had raped
Esha.1 The hearing officer then applied the commission's
regulations, 961 Code Mass. Regs. § 2.13(3) and (7) (1998),2 and
concluded: "Rape is an abhorrent crime that demonstrates a
deficient moral character. Awarding a sales agent license to an
individual of deficient moral character does not serve the
Lottery, the public, or the Commonwealth."
1 A pseudonym.
2 A new version of 961 Code Mass. Regs. §§ 2.00 took effect on February 13, 2026, but § 2.13 does not substantively differ and subsections (3) and (7) are unchanged. 3
Zafar sought judicial review of the commission's decision,
arguing that (1) § 2.13(7) of the commission's regulations,
which provides for the denial of a license based on deficient
moral character alone, exceeds the commission's statutory
authority, (2) the commission's decision was not supported by
substantial evidence, and (3) § 2.13(7) is unconstitutionally
vague. A Superior Court judge allowed Zafar's motion for
judgment on the pleadings, concluding that the statute, G. L.
c. 10, § 27, requires both a felony conviction and a moral
character determination before the commission can deny an
applicant a sales license. Because § 2.13(7) of the
commission's regulations allows the commission to deny a sales
license upon a finding of deficient moral character alone,
without a felony conviction, the judge held that the regulation
exceeds the commission's statutory authority. The judge also
held that the commission's finding that Zafar had raped Esha was
not supported by substantial evidence because the hearing
officer relied only on the trial transcripts and not live
testimony. The judge did not reach Zafar's constitutional
argument.
We conclude that the statute and regulations provide the
commission the discretion to deny a license to sell lottery
tickets based on deficient moral character, even if the
applicant has been acquitted of the crime upon which the finding 4
of deficient moral character is based. The statute provides the
commission significant discretionary authority to issue licenses
that, in the director's opinion, best serve the public
convenience. In this context, the regulations reasonably
interpret the statute to allow the director to consider
deficient moral character and a felony conviction as separable
bases for such denials, as the § 2.13(7) regulation expressly
recognizes. Furthermore, unlike in a criminal trial where the
burden of proof on the Commonwealth is proof beyond a reasonable
doubt, the burden of proof of deficient moral character in a
licensing proceeding is by a preponderance of the evidence.
Where the hearing officer found by a preponderance of the
evidence that Zafar had raped Esha, the commission was justified
in determining that Zafar had deficient moral character pursuant
to § 2.13(7). Moreover, the transcripts from Zafar's criminal
trial satisfy the substantial evidence test, and § 2.13(7) is
not unconstitutionally vague as applied in these circumstances.
Accordingly, we reverse the Superior Court order allowing
Zafar's motion for judgment on the pleadings and denying the
commission's cross motion for judgment on the pleadings, and
judgment shall enter for the commission.
1. Background. We summarize the facts as found by the
hearing officer and adopted by the commission, which we conclude
are supported by substantial evidence, as discussed infra. See 5
Craft Beer Guild, LLC v. Alcoholic Beverages Control Comm'n, 481
Mass. 506, 509 (2019), citing G. L. c. 30A, § 14 (7) (e).
In February 2015, Zafar raped his then wife, Esha. About
one week later, Esha told her doula, who was also a close
friend, about the rape. A few days later, Esha went to see her
physician regarding injuries suffered during the rape, but the
physician did not mention the rape in her report, as Esha
preferred. About one month after the rape, Esha reported it to
the police and obtained an abuse prevention order. On September
2, 2015, Zafar was arraigned on indictments alleging two counts
of rape and one count each of assault by means of a dangerous
weapon, assault on a family or household member, assault and
battery, threatening to commit assault, and witness
intimidation.
At the time, Zafar owned several convenience stores for
which he maintained licenses authorizing lottery sales. During
a routine criminal records check in connection with a renewal
application for one such license, the commission learned of
Zafar's then-pending criminal charges.
On December 31, 2016, the commission notified Zafar that it
intended to deny his license renewal application. On January
12, 2017, the commission held a hearing. On February 7, 2017,
the commission formally denied Zafar's renewal application
without prejudice to refiling. 6
On September 1, 2017, after a jury trial, a jury acquitted
Zafar of all charges.
In January 2020, Zafar submitted applications for lottery
licenses for two of his stores. On November 8, 2021, the
commission notified Zafar that it intended to deny his
applications. Zafar requested a director-level hearing, which
took place on May 24, 2022. On August 12, 2022, the director
designee affirmed the commission's decision to deny Zafar's
applications, and on September 2, 2022, the commission issued a
posthearing denial letter. On September 12, 2022, Zafar timely
requested a commission-level hearing.
The commission-level hearing took place on March 27, 2023.
The evidence included the transcripts and complete Superior
Court file from Zafar's criminal case, in addition to live
testimony from Zafar and the commission's director of compliance
and security.
On January 19, 2024, the commission hearing officer
recommended that the commission deny Zafar's applications based
on the factual finding that a preponderance of the evidence
showed Zafar raped Esha, and "[r]ape is an abhorrent crime that
demonstrates a deficient moral character" pursuant to 961 Code
Mass. Regs. § 2.13(7).3 The hearing officer also rejected
3 The hearing officer also determined that denying Zafar's applications was "in the best interests of the Lottery, the 7
Zafar's argument that the commission's regulations are void for
vagueness, because Zafar was on notice that a person who rapes
another is morally deficient under any societal standard. On
February 27, 2024, the commission adopted the hearing officer's
recommendations and affirmed the denial of Zafar's license
applications.
On March 7, 2024, Zafar timely sought judicial review in
the Superior Court under G. L. c. 30A. The parties cross-moved
for judgment on the pleadings. On March 20, 2025, a judge
allowed Zafar's motion and reversed the commission's denial of
his license applications. The judge concluded that the agency's
determination was an error of law because G. L. c. 10, § 27,
"includes a two-part inquiry": the applicant must both be
convicted of a felony and lack good moral character before the
commission can deny a sales license under that provision. Thus,
the judge concluded that because a felony conviction is a
"requisite element of G. L. c. 10, § 27," the commission's
decision exceeded the statutory limits of its licensure
authority. The judge further concluded that the commission's
decision lacked substantial evidence because the hearing officer
relied upon the trial transcripts only, without live testimony
public welfare, [and] the Commonwealth" pursuant to G. L. c. 10, § 26, and 961 Code Mass. Regs. § 2.13(3). 8
from Esha or the people to whom she reported the assault. The
judge did not reach Zafar's constitutional vagueness arguments.
The commission appealed from the judge's ruling. We
transferred the case to this court on our own motion.
2. Discussion. a. Standard of review. A final agency
decision may be set aside or modified on judicial review under
G. L. c. 30A, § 14, where, among other reasons, it is "[b]ased
upon an error of law," under § 14 (7) (c); "[u]nsupported by
substantial evidence," under § 14 (7) (e); or "[i]n violation of
constitutional provisions," under § 14 (7) (a). Zafar
challenged the commission's denial of his license applications
in the Superior Court on each of these bases. We address his
arguments in turn.
b. Whether the license denials were based upon an error of
law. "Duly promulgated regulations of an administrative agency
are presumptively valid and must be accorded all the deference
due to a statute" (quotation and citation omitted). Craft Beer
Guild, LLC, 481 Mass. at 520. "[R]egulations are not to be
declared void unless their provisions cannot by any reasonable
construction be interpreted in harmony with the legislative
mandate" (citation omitted). Duarte v. Commissioner of Revenue,
451 Mass. 399, 408 (2008). We "give due weight to the
commission's experience, technical competence and specialized
knowledge, as well as to the discretionary authority conferred 9
upon it" (quotation and citation omitted). Craft Beer Guild,
LLC, supra at 512. See G. L. c. 30A, § 14 (7). "This deference
is not, however, 'abdication'; we will not hesitate to overrule
agency interpretations of statutes or rules when those
interpretations are arbitrary or unreasonable" (quotation and
citation omitted). Freiner v. Secretary of the Executive Office
of Health & Human Servs., 494 Mass. 198, 205 (2024).
i. Statutory framework. The Massachusetts State lottery
is governed by the State lottery law, G. L. c. 10, §§ 22 to 35,
37 to 40, and 56 to 58. General Laws c. 10, § 24, provides:
"The commission is hereby authorized to conduct a state lottery
and shall determine," inter alia, the "types of locations at
which tickets or shares may be sold," and "the method to be used
in selling tickets or shares." See Bretton v. State Lottery
Comm'n, 41 Mass. App. Ct. 736, 740 (1996); Ruggiero v. State
Lottery Comm'n, 21 Mass. App. Ct. 686, 690 n.2 (1986). Section
24 also empowers the commission to establish and revise "such
rules and regulations as it deems necessary or desirable."
G. L. c. 10, § 24 (b).
General Laws c. 10, §§ 26 and 27, govern the licensing of
sales agents to sell lottery tickets. Pursuant to G. L. c. 10,
§ 26, the director of the commission "shall supervise and
administer the operation of the lottery in accordance with the
provisions of the state lottery law, and rules and regulations 10
made thereunder." This authority includes broad discretion:
the director "shall license as agents to sell lottery tickets
such persons as in his opinion will best serve the public
convenience." G. L. c. 10, § 26. The director is also
empowered to "suspend or revoke any license for violation of the
state lottery law or of the rules and regulations made
thereunder." Id.
General Laws c. 10, § 27, further describes the director's
discretion in issuing or refusing to issue a license:
"Before issuing such license the director shall consider the financial responsibility and security of each applicant for licenses, his business or activity, the accessibility of his place of business or activity to the public, the sufficiency of existing licenses to serve the public convenience, and the volume of expected sales. Said director may refuse to issue a license to any person who has been convicted of a felony by a court of competent jurisdiction in the commonwealth or of any other state or of the United States and who, in the opinion of said director, is not of good moral character to act as a licensed agent to sell lottery tickets." (Emphases added.)
The commission has set forth additional regulatory guidance
concerning the lottery in Title 961 of the Code of Massachusetts
Regulations. As relevant here, 961 Code Mass. Regs. § 2.13
provides:
"A Sales Agent's license may be revoked, suspended or an application may be denied or its renewal rejected by the Director . . . for one or more or all of the outlets listed thereon for any one or more of the following reasons.
". . .
"(7) If the moral character of the Applicant or Sales Agent . . . is found by the Director to be deficient. Conviction 11
at any time of a felony or of any violation of [G. L. c. 271] or any other anti-gambling law or law relating to the taxation of gambling or the proceeds thereof shall create a presumption of deficient moral character."
On appeal, the commission contends the judge erred in
concluding that § 2.13(7) exceeds the commission's statutory
authority because G. L. c. 10, § 27, provides the commission the
discretionary authority to deny a license to an applicant based
on deficient moral character alone. Reading the statute as a
harmonious whole, as we must, we agree.
ii. General Laws c. 10, § 27, and 961 Code Mass. Regs.
§ 2.13(7). In construing G. L. c. 10, § 27, "we interpret the
statutory language according to the intent of the Legislature
ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfection to be
remedied and the main object to be accomplished, to the end that
the purpose of its framers may be effectuated" (quotation and
citation omitted). Boston Police Patrolmen's Ass'n v. Boston,
435 Mass. 718, 719-720 (2002). Furthermore, "[i]n interpreting
a statute, we look not only to the specific words at issue but
also to other sections, and 'construe them together . . . so as
to constitute an harmonious whole consistent with the
legislative purpose.'" Malloy v. Department of Correction, 487
Mass. 482, 496 (2021), quoting Pentucket Manor Chronic Hosp., 12
Inc., v. Rate Setting Comm'n, 394 Mass. 233, 240 (1985).
Finally, as discussed supra, regulations that constitute
reasonable constructions of statutes are entitled to deference.
The statute here provides the commission broad
discretionary authority to issue licenses that, in the
director's opinion, best serve the public convenience. See
G. L. c. 10, § 26. In furtherance of that discretionary
authority, G. L. c. 10, § 27, states that the director "may
refuse to issue a license to any person who has been convicted
of a felony . . . and who, in the opinion of said director, is
not of good moral character." G. L. c. 10, § 27. "This court
consistently has interpreted statutory language using the word
'may' as 'generally permissive, reflecting the Legislature's
intent to grant discretion or permission . . . .'" Perez v.
Department of State Police, 491 Mass. 474, 483 (2023), quoting
Commonwealth v. Dalton, 467 Mass. 555, 558 (2014). Here, § 27
is clearly a permissive and not a mandatory provision, thereby
enhancing and not restricting the agency's authority.
In this statutory context -- which empowers the director
with significant discretionary authority regarding who is
entitled to a license to sell lottery tickets -- where the
statute provides that the director may deny a license to an
applicant who has been convicted of a felony and who, in the
director's opinion, is not of good moral character, we conclude 13
the word "and" may reasonably be interpreted by the agency
empowered to enforce the statute as providing independent
discretionary authority. Therefore, § 27 may be interpreted by
the commission in its regulations to authorize the director to
deny a license to an applicant who has been convicted of a
felony and to deny a license to an applicant who, in the
director's opinion, is not of good moral character; it does not
require both a felony conviction and a finding that the
applicant is not of good moral character. Although § 27 is not
written as clearly as it could be, we conclude the agency
charged with its enforcement has reasonably interpreted it. The
commission's regulations reasonably recognize the importance of
a deficient moral character without requiring a felony
conviction. See 961 Code Mass. Regs. § 2.13(3), (7).
Section 2.13(7) is thus consistent with G. L. c. 10, § 27.
Section 2.13(7) provides that a license application may be
denied "[i]f the moral character of the Applicant or Sales Agent
. . . is found by the Director to be deficient. Conviction at
any time of a felony . . . shall create a presumption of
deficient moral character." 961 Code Mass. Regs. § 2.13(7).
Because G. L. c. 10, § 27, may reasonably be interpreted not to
require a felony conviction, § 2.13(7) does not exceed the
commission's statutory authority; the director may deny a 14
license application based on an applicant's deficient moral
character alone.
c. Whether the commission's decision was supported by
substantial evidence. We next consider whether the commission's
denial of Zafar's sales license applications was supported by
"substantial evidence." G. L. c. 30A, § 14 (7) (e).
The judge below concluded that the commission's decision
was unsupported by substantial evidence because the underlying
factual findings were predicated on transcripts from Zafar's
criminal trial. On appeal, the commission argues that this was
error and the hearing officer's reliance on the transcripts was
proper. We agree with the commission.
In the instant case, the hearing officer found by a
preponderance of the evidence that Zafar had raped his wife. On
appeal, we review that factual determination and the hearing
officer's conclusion that the rape demonstrated deficient moral
character according to the substantial evidence test.4
"'Substantial evidence' means such evidence as a reasonable mind
might accept as adequate to support a conclusion." G. L.
c. 30A, § 1 (6). Therefore, "[a] finding of the [commission]
4 See, e.g., Narducci v. Contributory Retirement Appeal Bd., 68 Mass. App. Ct. 127, 136 (2007) (describing preponderance of evidence standard applicable to fact finding at administrative level and substantial evidence standard applicable on appeal); Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 255, 257 (1996) (same). 15
must be set aside if 'the evidence points to no felt or
appreciable probability of the conclusion or points to an
overwhelming probability of the contrary.'" New Boston Garden
Corp. v. Assessors of Boston, 383 Mass. 456, 465-466 (1981),
quoting Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79,
92 (1968). See Welter v. Board of Registration in Med., 490
Mass. 718, 728-729 (2022), cert. denied, 143 S. Ct. 2561 (2023).
Although "[t]he substantiality of evidence must take into
account whatever in the record fairly detracts from its weight"
(citation omitted), Cohen v. Board of Registration in Pharmacy,
350 Mass. 246, 253 (1966), "as long as there is substantial
evidence to support the findings of the agency, we will not
substitute our view of the facts," Pacewicz v. Board of
Registration of Massage Therapy, 497 Mass. 1004, 1007 (2026),
quoting Duggan v. Board of Registration in Nursing, 456 Mass.
666, 673-674 (2010).
Here, the hearing officer primarily relied on transcripts
of Esha's testimony at Zafar's criminal trial to conclude by a
preponderance of the evidence that Zafar raped Esha. Adopting
these findings, the commission denied Zafar's licenses due to
his deficient moral character. See 961 Code Mass. Regs.
§ 2.13(7). Because the commission is not "bound by the rules of
admissibility of evidence observed by courts," Embers of
Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 16
526, 529 (1988), "[s]ubstantial evidence may be based on hearsay
alone if that hearsay has indicia of reliability" (quotation and
citation omitted), Covell v. Department of Social Servs., 439
Mass. 766, 786 (2003). Esha's trial testimony bears such
indicia of reliability. Her account of the alleged rape was
detailed, based on firsthand observations, given under oath,
subject to cross-examination, and largely consistent with both
her report to the police and the testimony at trial of her doula
and doctor. See Covell, supra. See also Embers of Salisbury,
Inc., supra at 530-531. The hearing officer assessed these and
other relevant reliability factors, and he assigned Esha's
testimony probative weight. This he was entitled to do. Id. at
530 ("the credibility of and the weight to be given [trial
transcript testimony is] a matter squarely within the ambit of
the [agency's] fact-finding responsibility").
Pointing to Salem v. Massachusetts Comm'n Against
Discrimination, 404 Mass. 170 (1989), Zafar contends that
because the commission's denial of his applications turned on a
credibility determination -- namely, the hearing officer's
decision to credit Esha's rape allegation and not credit Zafar's
denials -- the trial transcripts alone cannot satisfy the
substantial evidence test. But Salem is inapposite. In that
case, we held that where live witnesses gave differing accounts
of a material event at an agency hearing, a decision relying on 17
an assessment of such witnesses' credibility could not be made
by someone who was not present at the hearing. See Salem, supra
at 174-175. See also Covell, 439 Mass. at 787 n.19. Here, by
contrast, Esha did not testify during the agency proceedings,
and the hearing officer who heard Zafar's live testimony also
issued the recommendation that his applications be denied.
Indeed, we have already considered and rejected the more
expansive reading of Salem on which Zafar now relies. See id.
(Salem "do[es] not suggest that credibility disputes can only be
resolved by live testimony. Rather, [it] stand[s] for the
proposition that when parties do present live testimony, they
are entitled to have the credibility determination made by
someone who heard the testimony that was presented"). "[T]he
fact that parties before an agency have differing versions of
critical events does not make live testimony the sine qua non
for satisfying the substantial evidence test." Id. at 787.
Nor does the jury's decision to acquit Zafar compel a
different result. As we have previously emphasized, "[t]hat
. . . trial testimony had not, in the jury's opinion, met the
standard of proof 'beyond a reasonable doubt' -- the highest
standard of proof imposed by our jurisprudence -- does not mean 18
that it was unreliable for purposes of the substantial evidence
test." Covell, 439 Mass. at 786.5,6
d. Vagueness. Finally, we address Zafar's argument that
961 Code Mass. Regs. § 2.13(7) is unconstitutionally vague. "A
law is void for vagueness if persons of common intelligence must
necessarily guess at its meaning and differ as to its
application, or if it subjects people to an unascertainable
standard" (citations and quotations omitted). Chief of Police
of Worcester v. Holden, 470 Mass. 845, 854 (2015). "The degree
of vagueness that is permissible under principles of due process
varies with the interests involved." Id. As applicable here, a
regulation that "merely regulates business interests need not
specify with great particularity the relevant considerations
with respect to whether to revoke [or deny] a license. . . . It
5 Zafar also argues that, even assuming consideration of the trial transcripts was proper, the hearing officer impermissibly ignored evidence that contradicted his conclusions. We disagree. In his written decision, the hearing officer expressly acknowledged Zafar's testimony denying the alleged rape and that of his alibi witness, identified certain inconsistencies in Esha's testimony, and considered whether Esha was motivated to make false allegations against Zafar. That the hearing officer ultimately declined to give such evidence decisive weight does not mean he failed to "take[] into account the entire record" as required by the substantial evidence test. Covell, 439 Mass. at 783. See G. L. c. 30A, § 14 (7).
6 We likewise reject Zafar's suggestion that the hearing officer's decision was unduly speculative. There was substantial evidence to support his conclusion that it was more likely than not that Zafar raped Esha. 19
is enough that the [agency] exercise its discretion fairly and
not act in an arbitrary and capricious manner." Gurry v. Board
of Pub. Accountancy, 394 Mass. 118, 128 (1985), quoting LaPointe
v. License Bd. of Worcester, 389 Mass. 454, 462 (1983).
Moreover, in the business context, "we limit our vagueness
analysis to whether [the regulation] is unconstitutionally vague
as applied in this case." Caswell v. Licensing Comm'n for
Brockton, 387 Mass. 864, 873 (1983) ("Since neither First
Amendment [to the United States Constitution] freedoms nor
criminal conduct are concerned in this case, a less stringent
vagueness standard applies").
Section 2.13(7) is not unconstitutionally vague as applied
to the present case. As explained supra, the hearing officer's
conclusion that Zafar raped Esha was supported by substantial
evidence. Accordingly, the relevant question is whether a
person of common intelligence would understand that if he
committed that offense, he could be found to be of deficient
moral character and denied a license to sell lottery tickets.
See 961 Code Mass. Regs. § 2.13(7). The answer to that question
is clearly yes.7
7 Zafar also contends that 961 Code Mass. Regs. § 2.13(3), which provided an alternative basis for the commission's denial, exceeds the commission's statutory authority and is unconstitutionally vague. Zafar's argument in this regard is barely developed and does not rise to the level required for 20
3. Conclusion. For the reasons discussed supra, we
conclude that the commission's decision was not based on an
error of law and was supported by substantial evidence. The
regulation at issue was also not unconstitutionally vague. The
order allowing Zafar's motion for judgment on the pleadings and
denying the commission's cross motion for judgment on the
pleadings is therefore reversed, and judgment shall enter for
the commission.
Judgment reversed.
appellate argument. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). We therefore decline to address it.