The opinion
'
.
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.)
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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
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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.
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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).
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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
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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).)
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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
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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.)
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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
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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
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