Eisenberg v. Me. Real Estate Comm'n, SUPERIOR COURT AUGUSTA DOCKET NO. AP-16-02
| Decision Date | 28 November 2016 |
| Docket Number | SUPERIOR COURT AUGUSTA DOCKET NO. AP-16-02 |
| Parties | DEREK EISENBERG, Petitioner v. MAINE REAL ESTATE COMMISSION, Respondent |
| Court | Maine Superior Court |
STATE OF MAINE
KENNEBEC, ss.
ORDER ON PETITION FOR REVIEW OF FINAL AGENCY ACTION
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.
1. Petitioner is licensed in Maine as a designated real estate broker. (R. 12.) 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 - I." (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 § 10(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.)
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 § 10(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.
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 of State, 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 itsunderlying 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.
(R. 64.)
20. During public deliberations immediately following the hearing, Commission member David Kitchen stated, (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...
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