Opinion

Einsenberg v. Maine Real Estate Commission

Court
Superior Court of Maine
Filed
Nov 28, 2016
Status
Unpublished
On the bench
Robert E. Mullen
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

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STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. AUGUSTA

DOCKET NO. AP-16-02

DEREK EISENBERG,

Petitioner

v. ORDER ON PETITION FOR

REVIEW OF FINAL AGENCY ACTION

MAINE REAL ESTATE

COMMISSION,

Respondent

I. Posture of the Case.

This case is before this Court on Petitioner Derek Eisenberg's (hereinafter "Petitioner")

Petition of Final Agency Action pursuant to Rule 80C, Maine Rules of Civil Procedure.

II. Factual and Procedural History.

Petitioner is licensed in Maine as a designated real estate broker. (R. 12.)

1.

Respondent, the Maine Real Estate Commission (the "Commission"), is the body that

regulates and licenses Maine real estate brokers. (R. 13.) The Commission requires that

applicants for renewal of designated broker licenses complete 21 hours of continuing

education ("CE") credits in the two years prior to renewal, including one "core course."

(R. 13.)

2. On March 1, 2013, the Commission established as its mandatory "core

course" for designated brokers a course entitled, "Working With Buyers-What Have We

Agreed To?" (R. 30.)

3. On September 29, 2014, the Commission sent an email to members of its

subscription email list stating that the mandatory "core course" for designated brokers

with license renewal dates on or after April 1, 2015, was a course entitled, "Core Course

for Designated Brokers - I," but that designated brokers with license renewal dates prior

to April 1, 2015, could take either the new "core course" ("Core Course for Designated

Brokers - I") or the prior "core course" ("Working With Buyers - What Have We

Agreed To?") to fulfill their "core course" requirement. (R. 37, 42-43, 86.) Eisenberg's

e-mail address was on the subscription e-mail list beginning September 26, 2013. (R. 37.)

4. Also on September 29, 2014, the Commission updated the front page and

continuing education page of its website to reflect the different "core course"

requirements for designated brokers with license renewal dates on or after April 1, 2015

and those with license renewal dates prior to April 1, 2015. (R. 33-37.) Those updates

remained on the website until April 1, 2015, when the website was updated again to

remove the information regarding requirements for designated brokers with license

renewal dates prior to April 1, 2015. (R. 36.)

5. On March 25, 2015, Eisenberg completed "Working With Buyers-What Have

We Agreed To?" (R. 3.)

6. On June 16, 2015, Eisenberg completed an application to renew his

designated broker's license. (R. 2.) On his application, Eisenberg certified that he had

met all the requirements for renewal, including the completion of the required "core

course." (R. 4.) Eisenberg's renewal licensed was issued thereafter, effective June 22,

2015. (R. 2.)

7. On July 8, 2015, the Commission notified Eisenberg that he was being audited

for compliance with the Commission's CE requirements. (R. 2.)

8. On July 13, 2015, Eisenberg submitted to the Commission certificates for the

CE courses that he had taken in the past two years. (R. 2.) These certificates confirmed

that Eisenberg had exceeded the minimum 21 hours of CE credits, and that he taken

"Working With Buyers - What Have We Agreed To?" but that he had not taken "Core

Course for Designated Brokers -1." (R. 2.)

9. On August 5, 2015, the Commission Director issued a "staff complaint and

petition for hearing" alleging that Eisenberg had violated 10 M.R.S.A. §§ 8003(5­

A)(A)(4), (5); 32 M.R.S.A. §§ 13197(1), (3); and 02-039 C.M.R. ch. 370 § lO(A) by

falsely certifying on his renewal application that he had met all the renewal requirements,

including completion of the mandatory "core course," and requesting that the

Commission fine Eisenberg $500 for the violation. (R. 13-14.)

10. On August 17, 2015, Eisenberg completed "Maine Core Course for

Designated Brokers-I." (R. 37-38.)

2

11. On November 19, 2015, the Commission held an adjudicatory hearing on the

issue of whether the Commission Director could show by a preponderance of the

evidence that Eisenberg had violated 10 M.R.S.A. §§ 8003(5-A)(A)(4), (5); 32 M.R.S.A.

§§ 13197(1), (3); and 02-039 C.M.R. ch. 370 § lO(A) "by certifying that he met all

requirements for renewal of his real estate license, including completion of the applicable

core course as part of his 21 hours of approved continuing education, when he had not

completed the applicable core course as part of his approved continuing education." (R.

1-2.)

12. On December 17, 2015, the Commission issued its decision finding that "the

violation had been proven by a preponderance of the evidence" and imposed as a sanction

a fine of $800, which exceeded the Commission Director's requested sanction by $300.

(R. 5.)

13. On January 19, 2016, Eisenberg filed this Petition For Review of Final

Agency Action pursuant to M.R. Civ. P. 80C.

14. On August 8, 2016, pursuant to an amended scheduling order, Eisenberg filed

a brief.

15. On September 12, 2016, the Commission filed an opposition to Eisenberg's

brief.

16. On September 26, 2016, Eisenberg filed a reply to the Commission's

opposition to his brief.

III. Standard of Review.

17. "A party seeking to overturn an agency decision bears the burden of

persuasion on appeal." Anderson v. Me. Pub. Emples. Ret. Sys., 2009 ME 134, ~ 3, 985

A.2d 501 (citations omitted). The agency's factual determinations must be sustained

unless shown to be clearly erroneous. Turner v. Sec '.Y ofState, 2011 ME 22, ~ 8, 12 A.3d

1188 (quoting Imagineering, Inc. v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me.

1991)).

Although we generally defer to an agency's interpretation of an ambiguous

regulation or statute that is within its area of expertise, we will reject an

agency's interpretation if it is unreasonable, or if the statute or regulation

plainly compels a contrary result. For example, even where there were two

reasonable interpretations of a statute, we have rejected an agency's

construction of a statute because "the statutory scheme as a whole and its

3

underlying policy" compelled a different construction. Similarly, we did

not defer to an agency's interpretation of a statute where the plain

language of the statute compelled a contrary result. The plain meaning of a

statute always controls over an inconsistent administrative interpretation.

Lippitt v. Bd. of Certification for Geologists & Soil Scientists, 2014 ME 42, ~ 17, 88

A.3d 154 (internal quotes and citations omitted).

18. Eisenberg argues that because the imposition of a fine is punitive, rather than

remedial in nature, any statute or rule upon which a punitive sanction is imposed must be

strictly construed. (Pet'r's Br. 10.) However, the Law Court has held that former statutes

governing real estate brokers in Maine were regulatory and not penal because (1) "the

manifest purpose" of the statues was "to protect the public," (2) "[e]xamination of the

larger statutory scheme reveal[ed] that the legislative purpose of the sanctions set forth

[therein] is regulatory and not penal, (3) the Commission was "an agency ... within a

department "whose function [was] to license and regulate professions and occupations,"

and (4) "[b ]rokers [were] to be supervised by the Commission in a manner to insure that

they meet standards which will promote public understanding and confidence in the

business of real estate." Me. Real Estate Com. v. Anderson, 512 A.2d 351, 353-54 (Me.

1986). The statutes and rules governing Maine brokers have been updated since 1986, but

Eisenberg makes no case that they are any more punitive and less regulatory than they

were back then.

IV. Analysis.

A. Whether Eisenberg preserved his equal protection and statutory interpretation

claims.

19. The Commission argues that Eisenberg failed to preserve for review his

claims that the Commission (1) violated his right to equal protection and (2)

misinterpreted the relevant rules and statues regarding the "core course" requirement.

(Resp.' s Br. 8, 17.) Eisenberg counters that he raised both the equal protection issue and

the statutory interpretation issue in his closing statement at the hearing. (Pet'r's Br. _.)

Specifically, with regard to equal protection, Eisenberg stated in closing,

[p ]eople are not being treated equally here. A quarter of the renewals can

take two courses and the other three quarters can only take one course. So

I think you have a constitutional issue there with respect to equal

protection and you're not treating all the people the same.

(R. 63.) With respect to statutory interpretation, Eisenberg stated in closing,

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[i]n fact, the laws cited in the complaint really only say that the

Commission can establish a core course, but there's been no reference to a

rule about it being the core course at the time of renewal. I couldn't find

any statute or rule cited anywhere in the complaint with respect to that. So

I think that the complaint is deficient in charging me with what they're

charging me with.

(R. 64.)

20. During public deliberations immediately following the hearing, Commission

member David Kitchen stated, "[i]n ... his closing argument [Eisenberg] says that we

apparently have an equal protection issue with the audit system .... And then also in the

closing argument, he challenges that there is no provision in the law for changing of the

core course." (R. 67.)

21. The case law regarding preservation of issues for appellate review is fairly

straightforward:

In order to preserve an issue for appellate review, a party must timely

present that issue to the original tribunal; otherwise, the issue is deemed

waived. See Ford Motor Co. v. Darling's, 2014 ME 7, ~ 41, 86 A.3d 35.

The preservation rule ensures that the decision-making body has the

opportunity to consider the issue and correct any perceived error in order

to avoid having its decision vacated or remanded after an appeal. See

Wells v. Portland Yacht Club, 2001 ME 20, ~ 5, 771 A.2d 371; Alexander,

Maine Appellate Practice§ 402(a) at 242-43 (4th ed. 2013). It also ensures

that any appellate review is informed by a ruling of the original tribunal.

Alexander, Maine Appellate Practice § 402(a) at 242-43. "An issue is

raised and preserved if there was a sufficient basis in the record to alert the

court and any opposing party to the existence of that issue." Verizon New

England, Inc. v. Pub. Utils. Comm'n, 2005 ME 16, ~ 15, 866 A.2d 844

(quotation marks omitted).

Brown v. Town of Starks, 2015 ME 47, ~ 6, 114 A.3d 1003. "[W]here the decision on

appeal is that of an administrative agency, it is important for a party to raise an issue of

statutory interpretation during the proceedings before that agency to give it an

opportunity to consider the argument first." Cent. Me. Power Co. v. Pub. Utils. Comm'n,

2014 ME 56, ~ 20, 90 A.3d 451.

5

22. The Commission cites both Verizon New England, Inc. and Cent. Me. Power

Co. to support its proposition that Eisenberg failed to preserve the issues he raised in

summation (Resp't's Br. 8-9), but the undersigned does not read those cases to do so. As

Eisenberg notes, the Court in Verizon New England v. Pub. Utils. Comm 'n held that

Verizon' s First Amendment argument was properly preserved when Verizon wrote in the

letter that functioned as a request for review,

when Verizon entered into the ILP Stipulation, it agreed to temporarily

refrain from exercising certain of its First Amendment rights . . .. In this

proceeding . .. Verizon has conclusively shown that both the toll market

in general, and individual toll customers in particular, no longer need the

extraordinary regulatory measure of prior restraint put in place by the

Stipulation .... The extraordinary abridgement of Verizon Maine's free

speech with respect to inbound telemarketing is plainly no longer required

to protect toll competition. 2005 ME 16, ~ 15, 866 A.2d 844. The Court

held that "the contents of the letter were sufficient to make the [PUC]

aware of the looming free speech issue" even though the letter itself was

never entered into the official record. Id. The Court in Cent. Me. Power

Co., meanwhile, held that an issue was preserved for appeal by Central

Maine Power Company ("CMP") when CMP had not raised the issue at all

in the hearing, PUC raised it for the first time in its decision, CMP moved

for reconsideration, and the PUC denied CMP's motion. Cent. Me. Power

Co. v. Pub. Utils. Comm'n, 2014 ME 56, ~ 21, 90 A.3d 451.

23. The Commission presents no case law or other evidence showing that an

argument brought up for the first time in the summation of an administrative hearing is

not thereby preserved. Although the Commission apparently misinterpreted Eisenberg's

equal protection argument as applying to the Commission's audit system rather than its

"core course" requirement, it is clear from the record that the Commission had notice of

Eisenberg's arguments when it reached its decision, although admittedly the arguments

might have been clearer, and consequently the undersigned finds that Petitioner raised the

issues sufficiently in order for them to be preserved for appeal.

B. Whether the Commission erred by finding that Eisenberg violated 10 M.R.S.A. §§

8003(5-A)(A)(4)-(5); 32 M.R.S.A. §§ 13197(1), (3); and 02-039 C.M.R. ch. 370 §

lO(A).

24. Eisenberg argues that the Commission erred in finding that he violated 10

M.R.S.A. §§ 8003(5-A)(A)(4)-(5); 32 M.R.S.A. §§ 13197(1), (3); and 02-039 C.M.R. ch.

370 § lO(A).

6

25. "The ... commission may deny or refuse to renew a license, may suspend or

revoke a license and may impose other discipline as authorized in this subsection

for ... [a]ny violation of the governing law of an office, board or commission [or] [a]ny

violation of the rules of an office, board or commission .... " 10 M.R.S.A. §§ 8003(5­

A)(A)(4)-(5) (Supp. 2015). Eisenberg argues that the Commission erred in finding that he

violated 10 M.R.S.A. §§ 8003(5-A)(A)(4)-(5) because "it is not a statutory provision

which is capable of being violated." (Pet'r's Br. 7.) Rather, he argues, "[i]t simply

confers authority on the Commission to impose discipline." (Pet'r's Br. 7.)

26. "As a prerequisite to renewal of a license, applicants must complete 21 clock

hours of continuing education within 2 years prior to the date of application in programs

or courses approved by the commission ...." 32 M.R.S.A. § 13197(1) (Supp. 2015).

Eisenberg argues that the Commission erred in finding that he violated 32 M.R.S.A. §

13197(1) because "[t]he record as a whole not only indicates that Eisenberg completed 21

hours of valid CE credits, but in fact exceeded the number of credits, submitting a total of

26 credit hours." (Pet'r's Br. 8 (citing R. 29).)

27. "The commission may establish a core educational requirement for each license

type, not to exceed 6 clock hours, in which case the remaining requirement shall be

fulfilled from elective programs approved by the commission." 32 M.R.S.A. § 13197(3)

(Supp. 2015). Eisenberg argues that the Commission erred in finding that he violated 32

M.R.S.A. § 13197(3) because "this statutory provision vests the Commission with the

authority to establish core education requirements" and so "it is not possible for

Eisenberg to violate [it]." (Pet'r's Br. 8.)

28. Pursuant to 02-03 9 C.M.R. ch. 370 § 1O(A) (1996), "no real estate license may be

renewed or activated unless the licensee has completed a three hour continuing education

program approved as meeting the core educational requirement." Furthermore, "[a]

licensee, for purposes of renewal or reactivation, shall use only those clock hours which

were accumulated during the two (2) years immediately preceding such renewal or

activation." 02-039 C.M.R. ch. 370 § 7(8) (1996). "The Commission, on an annual basis,

shall review the prescribed curriculum for the core educational requirement." 02-039

C.M.R. ch. 370 § lO(B) (1996).

29. Eisenberg argues that the Commission erred in finding that he violated 02-039

C.M.R. ch. 3 70 § 1O(A) because "at the time Eisenberg renewed his license, the core

course, 'Working with Buyers-What Have We Agreed To?' was an 'applicable core

course,' under the Rule established by the Commission and the relevant statute." (Pet'r's

Br. 9.) According to Eisenberg, because, pursuant 02-039 C.M.R. ch. 370 § 7(B) and 32

M.R.S.A. § 13197( 1), CE credits earned within two years prior to a renewal count

7

towards that renewal, "[t]he only reasonable interpretation of the Rule and the statute lead

to the conclusion that a CE credit must be honored by the Commission for a period of

two years," and since "Working with Buyers-What Have We Agreed To?" was an

approved "core course" for a time within the two years prior to Eisenberg's renewal, the

Commission must honor it as such. (Pet'r's Br. 9-10.)

30. The Commission counters that the 21-hour minimum for total CE credits and

the "core course" requirement are "two distinct.. .requirements." (Resp't's Br. 10.) The

Commission also argues that "[t]he plain language of the statute and rule lack any

provisions that would limit the Commission's ability to designate a new course or

program as the core educational requirement." (Resp't's Br. 11.) Furthermore, the

Commission argues that since 02-039 C.M.R. ch. 370 § lO(B) states that the Commission

"shall review the prescribed curriculum for the core educational requirement" annually,

"the plain language of the rule contemplates that the Commission will frequently change

what course or program will satisfy the core education requirement." (Resp't's Br. 11.)

31. Eisenberg is correct that, strictly speaking, 10 M.R.S.A. §§ 8003(5-A)(A)(4)­

(5) or 32 M.R.S.A. § 13197(3), merely empower the Commission and do not directly

regulate licensees. However, there is no indication that the Commission's finding that

Eisenberg violated those statutes was anything more than a harmless semantic error.

There was clearly sufficient evidence for the Respondent to conclude Petitioner had

violated the operative statutes and rules.

C. Whether the Commission violated Eisenberg's right to Due Process by

failing to give him fair notice of what core course he was required to

complete.

32. Eisenberg argues that the Commission's failure to give him fair notice of the

change in "core course" requirement is evident because (1) the Commission did not send

him notice via regular mail, (2) the Commission failed to provide documentary evidence

of the contents of its website prior to November 17, 2015, and (3) the Commission had

not adopted any "official interpretation" of the "core course" rule. (Pet'r's Br. 14.)

Eisenberg adds that "the Commission has adopted a piecemeal schedule for

implementing new core CE requirements," and that under the Commission's

interpretation of its rules, "a broker could take an 'approved' core course on a Monday,

renew their license on Tuesday certifying that they had taken the required core course,

and find themselves being disciplined because the core course expired on Tuesday."

(Pet'r's Br. 14-15 (citing R. 31, 84).) According to Eisenberg, this issue is exacerbated by

the fact that the license renewal application does not identify the mandatory "core

course" by title. (Pet'r's Br. 15-16 (citing R. 74-75).)

8

3 3. The Commission counters that "the record is replete with competent evidence

supporting the Commission's finding that Eisenberg received adequate notice." (Resp't's

Br. 16.) To wit: (1) testimony by the Commission's education coordinator Cathy

Pendergast that the Commission's website was updated to reflect the new requirement on

September 29, 2014 (R. 32-37); (2) the Commission's Exhibit 4, a memo dated July 20,

2015 from Ms. Pendergast to Ms. Bivens stating, inter alia, that the website had been

updated on September 29, 2014 in the manner to which Ms. Pendergast testified (R. 84­

85); (3) the Commission's Exhibit 6, a screenshot of the Commission's website taken

November 17, 2015, containing contemporary information about the "core course"

requirement (R. 90-91 ); ( 4) testimony by Ms. Bivens that the Commission had sent a

mass email regarding the changes on September 29, 2014 (R. 37-38); and (5) the

Commission's Exhibit 5, a copy of the September 29, 2014, email and screenshot from

the email list administrator's page showing that Eisenberg had been on the list since

September 26, 2013 (R. 86-89). (Resp't's Br. 16-17.)

34. Eisenberg's argument is based on the standard applied in Central Maine

Power Co., v. Public Utilities Comm 'n, 2014 ME 56, 90 A.3d 451:

It is well settled law that persons engaged in activities subject to state or

local regulation are entitled to know with reasonable clarity what they

must do to engage in the regulated activities without violation of the law.

The Court does not defer to agency interpretation when an agency takes

enforcement action in a manner that deprives regulated parties of adequate

notice about how to comply with the law and promotes practices that are

contrary to the purpose of the law.

(Pet'r's Br. 13 (quoting Central Maine Power Co., 2014 ME 56, ~ 29, 90 A.3d

451) (internal quotation marks omitted).)

35. The Commission counters that Eisenberg "seeks to impose on the

Commission a notice requirement far beyond anything required under Maine law."

(Resp't's Br. 15.) According to the Commission, "Central Maine does not require that an

agency seek out all licensees and affirmatively inform them of the requirements of their

license. Rather, it merely requires that the agency make the information publicly

available to the licensee." (Resp't's Br. 15 (citing Central Maine Power Co., 2014 ME

56, ,i 35, 90 A.3d 451 (Central Maine Power Co. had reasonable notice of the Public

Utilities Commission's interpretation of its fund allocation regulations because it "had

access to" an applicable rule amendment and a Public Utilities Commission ruling on

9

point, and because it "could readily observe" the effect of its improper allocation of

funds).)

36. The Court finds that due process requires the Commission to provide notice

reasonably calculated under all the circumstances to apprise interested parties of changes

in the rules, and that the notice as articulated above was sufficient. Although Petitioner

informed the Commission that he "possibly" might testify at the hearing below, Petitioner

made the conscious decision not to do so. Petitioner could have offered testimony that he

never received notice; instead, he chose to argue that the Commission "didn't know" if he

in fact received e-mail notice of the change in the rules and/or "couldn't prove" that he

had in fact had actual notice of the core course change. Petitioner does not prevail on this

argument either.

D. Whether the Commission violated Eisenberg's Equal Protection rights.

37. Where a law does not affect a fundamental right or involve a suspect class, it

"need not operate uniformly on all individuals as long as those affected are reasonably

different from those excluded and there is a rational basis for treating them differently."

Brann v. State, 424 A.2d 699, 703 (Me. 1981) (internal quotes omitted).)

When those who appear similarly situated are nevertheless treated

differently, the Equal Protection Clause requires at least a rational reason

for the difference, to assure that all persons subject to legislation or

regulation are indeed being "treated alike, under like circumstances and

conditions." Thus, when it appears that an individual is being singled out

by the government . . . the Equal Protection Clause requires a "rational

basis for the difference in treatment."

(Pet'r's Br. 19 (quoting Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602

(2008)

(quoting Hayes v. Missouri, 120 U.S. 68, 71 (1887); Willowbrook v. Olech, 528 U.S. 562,

564

(2000))).)

38. Eisenberg admits that he is not a member of a "suspect class" but he states

that he "is not required to be a member of a suspected classification to receive protection

from arbitrary government action that treats him differently than other similarly situated

persons." (Pet'r's Br. 21.) Eisenberg argues that he "was subject to ... arbitrary action"

because "according to the Commission he could only satisfy his core CE requirement by

completing one core course, whereas other applicants could meet their requirements by

completing one of two core CE courses." (Pet'r's Br. 19.)

10

39. The Commission counters that its "core course" policy (1) does not treat

similarly situated individuals differently and (2) is rationally related to a legitimate

government interest. (Resp't's Br. 20, 21.)

40. The Commission argues that designated brokers with license renewal dates

prior to April 1, 2015 are not "similarly situated" to designated brokers with license

renewal dates on or after April 1, 2015 because "[Equal protection principles do] not

forbid statutes and statutory changes to have a beginning, and thus to discriminate

between the rights of an earlier and later time." (Resp't's Br. 20 (quoting Sperry &

Hutchinson Co. v. Rhodes, 220 U.S. 502, 505 (1911) (alteration in brief)).) The

Commission also cites Madmage ofMaine, LLC v. Androscoggin County, 2012 ME 44,

~ 34, 40 A.3d 975; Brann v. State, 424 A.2d 699, 703 (Me. 1981); People v. Jones, 1

Cal.App5th 221, 232 (Cal. Ct. App. 4t\ July 7 2016); Russo v. Shapiro, 309 F.Supp. 385,

392 (D. Conn. 1969); and Bean v. State, 2008 MT 67, ~ 17, 179 P.3d 524, all to support

its argument that there is no equal protection violation "where a change in statute results

in change in rights of individuals between an earlier and later time." (Resp't's Br. 20-21.)

41. Eisenberg distinguishes the cases cited by the Commission, namely Sperry &

Hutchinson Co., Maclmage ofMaine, LLC, and Brann, by arguing that they all concerned

one-time rule changes, where as "here the structure of rotating CE requirements creates a

never ending cycle where similarly situated individuals ... are continuously treated

differently based upon the date that they must renew their licenses" (Pet'r's Reply 4-5.)

While Eisenberg is correct that none of the cases cited by the Commission specifically

involve what Eisenberg calls a "never ending cycle" of rule changes, Eisenberg does not

present any case that does. Eisenberg does, however, liken the Commission's policy to a

hypothetical Bar policy setting different CLE requirements by attorney birthdate.

42. Still, the Commission argues, its "core course" policy is valid because it

passes the "rational basis" test. (Resp't's Br. 21.) The "rational basis" test is highly

deferential to the government actor. "The burden is on the party challenging the

government action to demonstrate that there exists no fairly conceivable set of facts that

could ground a rational relationship between the challenged classification and the

government's legitimate goals." (Resp't's Br. 21 (quoting Doe Iv. Williams, 2013 ME

24, ~ 54, 61 A.3d 718).) The Commission argues that it has a legitimate interest in

ensuring a smooth transition between approved "core courses" and that the transition

period policy is rationally related to that interest. (Resp't's Br. 21.)

43. Eisenberg counters that the Commission's policy does not ensure a smooth

transition between "core courses" but rather "makes the process more confusing." (Pet'r's

Reply 6.) Eisenberg adds that "while [the policy] may provide one quarter of all renewal

11

applicants extra flexibility in regard to course selection, that same benefit is not conveyed

to all applicants" and that there is no rational basis for a system "that confers such

beneficial treatment to one group of designated brokers." (Pet'r's Reply 6.)

44. The Commission apparently does not disagree with Eisenberg that if his license

renewal date had been March 31, 2015, he would have had a choice of "core course," and

he would not have been sanctioned for failing to comply with the Commission's rules.

The Commission also does not seem to disagree that certain designated brokers will

always have a choice between two "core courses" and others will not, simply because

they have different renewal dates. The Commission simply likens its rotating "core

course" policy to the every-changing legal landscape as a whole. Rules change, after all,

and it is incumbent upon citizens to stay up-to-date with those changes and comply

accordingly. Does the rotating quality of the Commission's policy set it apart somehow?

Regardless, all it takes for the policy to be found valid is some "fairly conceivable set of

facts" tying it to the Commission's legitimate interest in keeping designated brokers

properly educated. Doe I, 2013 ME 24, ~ 54, 61 A.3d 718.

45. After a careful review of the record in this matter, the undersigned is

convinced there is no violation of Petitioner's equal protection rights present. The core

course requirement changed, as it apparently had approximately every two years or so for

the foreseeable past. As the Respondent pointed out in its brief, equal protection

principles do not forbid statutes and statutory changes to have a beginning, and "thus to

discriminate between the rights of an earlier and later time." Sperry and Hutchinson Co.

v. Rhodes, 220 U.S. 502, 505 (1911), Maclmage ofMaine, LLCv. Androscoggin County,

2012 ME 44.

46. The undersigned declines to find that Petitioner was within a set of similarly

situated persons who were not treated equally under the law. Friends ofLincoln Lakes,

2010 ME 18. Moreover, even if the Court were to find otherwise, here the Court also

finds that the temporal classification based upon differing license expiration dates is

rationally related to a legitimate goal that survives constitutional scrutiny. It is rational,

and reasonable, to change the core course education requirement from time to time. It is

also rational and reasonable to have a transition period between the "old" core course

requirement and the "new" core course requirement so as to insure the process proceeds

fairly and smoothly and not umeasonable burden impacted licensees.

47. It is unfortunate in the Court's mind that the sanction of Petitioner was

increased by the Commission, but this does not provide grounds for relief for Petitioner.

The Commission obviously found that the arguments of Petitioner to be without any

merit; this Court does not hold the same belief. Regardless, the Court does not find any

12

abuse of discretion, error of law, or findings not supported by the evidence, and thus

affirms the decision below.

The Clerk is directed to incorporate this Order by reference into the docket for this

case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.

Date: 11/28/16 UJ ~

8

i o b ~ l e I Deputy Chief Justice

Maine Superior Court

13

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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