ALJDEC decisions subject to certification as final

17F-DI-268-REL · Department of Real Estate · 2017-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Application of Original Real Estate Salesperson’s License of:

Sterbenz, Christopher, License Number SA581072000,

Respondent.

No. 17F-DI-268-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 10, 2017, at 1:00 p.m.

APPEARANCES: Christopher Sterbenz (“Respondent”) appeared on his own behalf; the Arizona Department of Real Estate (“the Department”) was represented by Ryan Krench, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about January 2, 2007, the Department initially granted real estate salesperson’s License Number SA581072000 to Respondent.

On or about September 13, 2016, Respondent pled guilty to Extreme Driving under the Influence of Alcohol (“DUI”), a class one misdemeanor, in violation of A.R.S. §§ 28-1382(A)(1), 13-707, and 13-802, based on a crime that Respondent committed on March 26, 2016, in Justice Court, Precinct No. Eight--Maricopa/Stanfield County of Pinal, State of Arizona Case No. TR2016-0373.

On or about September 13, 2016, pursuant to the plea agreement in Case No. TR2016-0373, Respondent was sentenced to pay $2,780.00 in fines and $266.13 in court costs, to serve 30 days’ incarceration, with 21 days suspended upon his installation of an interlock device on his vehicle, and to undergo alcohol counseling and MADD impact panel.

On or about January 17, 2017, Respondent submitted an application to renew License Number SA581072000 to the Department. Respondent checked “yes” in response to the question on the renewal application about whether he had “[b]een convicted or entered into a plea agreement . . . to ANY misdemeanor,” including a DUI. This was the first time that Respondent disclosed to the Department his conviction for extreme DUI on September 13, 2016 pursuant to his plea agreement in Case No. TR2016-0373.

Respondent submitted a letter that explained the circumstances of his conviction, in relevant part as follows:

On the evening of March 26, 2016, I attended an event at the Ak-Chin Circle UltraStar Multi-Tainment Center in Maricopa, AZ. At ̃10:00PM, I exited a temporary parking lot adjacent to the center that was opened just for this event, and less than 30 seconds later, made a right hand turn onto a tertiary road. This intersection was 1/8 mile away from the Ak-Chin Tribal Police Department. I was pulled over by an Ak-Chin police officer for “rolling through the stop sign” at this intersection, and after a plethora of sobriety tests, arrested for suspicion of DUI. I was released from custody, without any bail requirement, at ̃2:30AM. I never received a copy of the police report, nor did I receive a ticket for any moving violation.

On September 13, 2016, as a defendant in a DUI case against the State of Arizona at the Maricopa Stanfield Justice Court, I was encouraged by my lawyer to accept a plea bargain, and did. All court requirements were completed expeditiously, with the chronology of events being as follows:

3/26/16 to 3/27/16 – citation, arrest, and release

9/13/16 – conviction (via plea bargain – see attached documentation); all court fines paid in full

9/30/16 -- ignition interlock device installation (12 month requirement on-going)

10/3/16 – Traffic Survival School completion

10/3/16 – MADD session completion

10/4/16 to 10/6/16 – jail time completion (48 hours)

10/6/16 to 10/13/16 – home detention with work release (7 days)

10/8/16 and 10/15/16 – DUI education class completion (16 hours)

1/2/17 – council [sic] review of documentation regarding completion of sentencing requirements and case closure

10-Year Work History

I’ve been a full-time employee at Intel Corporation . . . since February 27, 2006. . . . The arrest, conviction, and completion of all sentencing requirements did not impact my employment in any way, nor were they required to be disclosed to Intel. In this regard, I’m requesting that I remain the lone individual who directly informs Intel about this matter, and only if absolutely necessary.

Because the renewal application that Respondent submitted to the Department on January 17, 2017, was administratively incomplete, the Department did not immediately process the application. On May 23, 2017, Respondent submitted additional supporting documentation that allowed the Department to process the renewal application.

On May 31, 2017, the Department sent a letter to Respondent, stating that it was renewing his real estate salesperson’s License Number SA581072000, but reserving the right to pursue disciplinary action based on Respondent’s late disclosure to the Department of his September 13, 2016 conviction for DUI.

Respondent requested a hearing on the Department’s stated intent to assess against his license a civil penalty for his late disclosure to the Department of his September 13, 2016 conviction for DUI. The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On June 28, 2016, the Department issued a Notice of Hearing, which summarized the events set forth above and charged grounds to impose a civil penalty in the amount of $1,000.00 on his license under A.R.S. § 32-2160.01(A) and 32-2153(A)(3) and A.A.C. R4-28-301(F) and R4-28-303(D).

A hearing was held on August 10, 2017. The Department presented the testimony of its Senior Investigator Tom Adams and submitted six exhibits. Respondent testified on her own behalf and submitted one exhibit.

Respondent did not dispute that on September 13, 2016, he had entered into the plea agreement in Case No. TR2016-0373. Instead, Respondent testified that his criminal attorney had advised him that “anything can happen” before the prosecutor reviewed the plea agreement.

Respondent testified that he did not know that he needed to disclose to the Department the plea agreement and that he had misconstrued the difference between being convicted of DUI pursuant to the plea agreement and the criminal case being closed pursuant to the prosecutor’s review of the case. Respondent submitted documentation that the prosecutor reviewed the plea agreement and Respondent’s completion of his sentence and determined to close the criminal until April 13, 2017.

Respondent also expressed the opinion that his license history on Department’s public website should reflect simply his conviction of a “reportable crime,” rather than DUI, and that the website should reflect that his failure to timely report the conviction to the Department was unintentional.

CONCLUSIONS OF LAW

This matter lies within the Department’s jurisdiction.

The Department bears the burden of proof to establish cause to impose a civil penalty against Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the amount of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

When Respondent initially applied for his real estate salesperson’s license, he was required to disclose on the application “[c]onviction for a misdemeanor or felony, or deferral of a judgment or sentencing for a misdemeanor or felony.” A.A.C. R4-28-301(F) and A.A.C. R4-28-303(D) required Respondent to disclose to the Department within ten days any change in the information that he provided to the Department to become licensed, including any convictions subsequent to his licensure.

Everyone is presumed to know the law. “As a matter of public policy, all persons are charged with knowledge of law pertaining to their transactions . . . .” Because everyone is presumed to know the law’s requirements, a mistake as to such requirements does not excuse failure to meet them. Neither A.A.C. R4-28-301(F) nor A.A.C. R4-28-303(D) requires any intent. Because Respondent was required to disclose his conviction for DUI within ten days of the date of his conviction, September 13, 2016, the Department established that Respondent’s disclosure of the conviction on January 17, 2017, was untimely and in violation of the Department’s regulations.

Respondent argued as a factor in mitigation of the penalty that he was confused about when he should have disclosed the conviction because the prosecutor had not reviewed his completion of the terms of the plea agreement until April 13, 2017. Respondent’s testimony was not credible because he referred to the plea agreement as a conviction in the January 17, 2017 renewal application. A.A.C. R4-28-301(A)(1)(a) and R4-28-303(D) both unequivocally refer to a conviction, not the prosecutor’s final review of a defendant’s compliance with the terms of a plea agreement. Cause therefore exists under A.R.S. § 32-2153(A)(3) to discipline Respondent’s real estate salesperson’s license, including by assessing a civil penalty against the license under A.R.S. § 32-2160.01(A).

Respondent argued that the Department should not be able display accurate information on its public website about the reason for the civil penalty because of the potential embarrassment that such display could cause Respondent at his job at Intel. The Arizona legislature created the Department “to protect the public health, safety and welfare by regulating the sale of real estate . . . .” Applicable statutes and regulations do not allow the Department to post incomplete or inaccurate information to avoid potentially embarrassing a licensee.

/ / / /

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that within 45 days of the effective date of the Order entered in this matter, Respondent Christopher Sterbenz is liable to pay to the Department a civil penalty in the amount of $1,000.00, and such payment shall be made by cashier’s check or money order made payable to the Department.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, August 28, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate