ALJDEC - Licensing

23F-329-REL · Department of Real Estate · 2024-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

DUBINKA, STEVE, holder of license number BR006215000

Respondent

No. 23F-329-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 14, 2023

APPEARANCES: Steve Dubinka appeared on his own behalf. James Rollstead, Esq., Assistant Attorney General, represented the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

EXHIBITS ADMITTED INTO EVIDENCE: The Arizona Department of Real Estate’s exhibits 1 through 10.

FINDINGS OF FACT

Steve Dubinka (Respondent) is the holder of an active Real Estate Broker license number BR006215000. The license was first issued by the Arizona Department of Real Estate (Department) on March 13, 1985.

On February 2, 2023, a contractor was doing work for Michael and Deborah Nichols (the Nichols) inside their home. The contactor parked his work van in front of the Nichols’ outer courtyard gate. The contractor was working inside the Nichols’ residence; he was traveling back and forth from his truck and the jobsite. At approximately 3:04 p.m. surveillance video of the Nichols’ outer courtyard gate showed Respondent walk through the open gate to the Nichols’ front door. The Nichols’ front doorbell video footage showed Respondent paused and looked at the front door. Respondent then leaned over and peered into the Nichols’ home through the glass front door. Respondent turned toward the doorbell camera and paused again. Respondent then turned back to the door, reached for the door handle, pushed open the front door, and entered the Nichols’ home.

While in the Nichols’ home, Respondent spoke with the contractor and asked if he could speak with Mrs. Nichols. The contractor summoned Mrs. Nichols. Mrs. Nichols testified, initially, she believed Respondent was with the contractor. Respondent attempted to have a conversation with Mrs. Nichols regarding the sale of her home and Mrs. Nichols demanded Respondent leave. After Respondent exited the premises, the contractor spoke with Mrs. Nichols and told her that he could not believe that man just walked into her home. At that moment, Mrs. Nichols became visibly shaken when she realized Respondent had illegally entered her house.

The Nichols filed a police report with the Paradise Valley Police Department on February 4, 2023. An officer was dispatched to speak with Respondent. The conversation between the officer and Respondent was recorded on the officer’s body camera. The officer asked Respondent about the February 2, 2023 incident and Respondent admitted he was not invited to the Nichols’ home, nor did he knock on the door. Respondent claimed the door was open and he followed a construction worker into the home. Respondent then repeated himself to the officer that the door was “wide open.” The officer then told Respondent the Nichols have a video of him opening the door and walking into their home. Respondent recanted his previous statement when he said the door was open, he meant unlocked. The officer also told Respondent, “if you were in my house, I’d probably put a gun in your face.”

On February 9, 2023, the Nichols submitted a complaint to the Department which outlined the events of the February 2, 2023 incident. The Nichols’ complaint provided additional context to the incident. Approximately six months prior to the February 2, 2023 incident, Respondent slid a note under the Nichols’ outer courtyard gate. The note claimed Respondent could get the Nichols up to 4 million dollars for their home. The Nichols ignored the offer. Six months after the initial note, Respondent left two more notes stating he could provide a buyer for their home. Once again, the Nichols ignored the offer. Approximately three or four months prior to the February 2, 2023 incident, Respondent attempted to leave another note for the Nichols. This time, Mr. Nichols saw Respondent on his surveillance camera and approached Respondent. Mr. Nichols told Respondent the Nichols were not interested in selling their home, and told him to leave and stop coming back.

On February 10, 2023, the Department began an investigation into the Nichols’ February 9, 2023 complaint. Bret Biesenthal, Senior Investigator at the Department, was assigned to investigate the Nichols’ complaint. Mr. Biesenthal sent a letter to Respondent and Don Dickinson, the designated broker on Respondent’s license, which notified them of the complaint. The letters requested a written reply no later than February 24, 2023.

On February 23, 2023, Mr. Dickinson replied to Mr. Biesenthal. Mr. Dickenson stated that he spoke with Respondent’s manager and reinforced that entering a property without permission was unacceptable.

Respondent replied to Mr. Biesenthal’s letter and stated, “I saw a contractor was exiting his company van and walked inside to do a job. I thought one of the owners could be there so I followed the contractor into the property.” Respondent’s letter went on to state the contractor retrieved the homeowner, Respondent spoke with homeowner who told him she was not interested in selling, Respondent thanked homeowner and left.

During Mr. Biesenthal’s investigation, he obtained the Paradise Valley Police Incident Report. The report detailed the February 4, 2023, interaction between the officer and Respondent. According to the report, Respondent admitted being at the house but stated he was let in by a construction worker. The officer advised him this was untrue and that there was a video recording of the incident. The officer advised Respondent to stay away from the property or he would be arrested for trespassing.

On June 13, 2023, a notice of hearing was sent to Respondent which notified him of the hearing set for July 20, 2023, at 1:00 p.m. at the Office of Administrative Hearings. After three continuances were granted, a hearing was held on December 14, 2023.

At hearing, the Nichols and Mr. Biesenthal testified on behalf of the Department. Respondent testified on his own behalf.

At hearing, Mr. Biesenthal testified the Department’s primary concern is safety for the public and its members. Mr. Biesenthal testified the actions of Respondent on February 2, 2023, could have led to violence.

At hearing, Respondent testified the reason he was so aggressive in his attempts to speak with the Nichols was because he had a wealthy client and that client’s representative was in town for a limited amount of time. Respondent met with his client’s representative and they discussed the Nichols’ home. Respondent confirmed the client wanted to make an offer on the Nichols’ house. Respondent testified he had to know whether the Nichols were interested in selling. Respondent admitted if he had the opportunity to do it again, he would have rang the doorbell. Respondent admitted he saw the contractor open and close the door. After the contractor entered, Respondent waited 15 minutes, then entered the Nichols’ home without notifying the homeowners or announcing himself. Respondent admitted he did not have permission to enter the home. Respondent testified he has had his license for 45 years and has never had any complaints.

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence.

The evidence in this matter established violations by Respondent of A.R.S. § 32-2153(B)(3), (7) and (9).

Respondent made substantial misrepresentations to both Mr. Biesenthal and the Paradise Valley Police Officer. Respondent’s reply to Mr. Biesenthal claimed he followed a contractor into the Nichols’ home, however, the surveillance video showed Respondent entering the home alone. At hearing, Respondent recanted his statements in his reply and to the officer. Respondent testified he waited 15 minutes after the contractor entered the home before entering without permission. Respondent made the same misrepresentation of fact to the police officer. The next substantial representation Respondent made was regarding the open door statement to the officer. The officer’s body camera footage showed Respondent stated multiple times the front door was open. It wasn’t until the officer informed him there was a video recording that he recanted his story. The police report stated Respondent’s story “was untruthful.” Thus, the evidence established Respondent violated A.R.S. § 32-2153(B)(3).

Respondent demonstrated incompetence to perform his duty when he took the extraordinary and dangerous step of entering a stranger’s home without permission. Respondent could have taken the most basic of step of knocking on the Nichols’ door or making a phone call.

Furthermore, Respondent failed to appreciate the probable consequences of his actions of entering a stranger’s home without permission. The police officer had to explain to Respondent that if a person entered the officer’s home without permission, they would have a gun in their face. Respondent’s testimony and written statements to the Department showed a single motivation for his actions, money. Respondent was so motivated to find a home to sell to his wealthy buyer, he failed to appreciate the consequences of his actions. Mrs. Nichols testified that as a result of Respondent’s actions she was visibly shaken. Thus, the evidence established Respondent violated A.R.S. § 32-2153(B)(7).

Respondent’s actions violated Arizona state law A.R.S. § 13-1504 when he committed criminal trespass. A.R.S. § 13-1504 states in pertinent part “[a] person commits criminal trespass in the first degree by knowingly . . . [e]ntering or remaining unlawfully in or on a residential structure.” The Nichols’ testimony showed Respondent did not have permission to enter their home. Respondent admitted he entered the Nichols’ residential structure without permission. Thus, Respondent violated A.R.S. § 13-1504 and therefore violated A.R.S. § 32-2153(B)(9).

Accordingly, the Department established grounds to revoke Respondent’s license pursuant to A.R.S. § 32-2153(B)(3), (7) and (9).

RECOMMENDED ORDER

Respondent’s Real Estate Broker license shall be revoked on the effective date of the Order entered in this matter.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, January 3, 2024.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Steve Dubinka

[email redacted]

James Rolstead

Attorney General's Office

[email redacted]

By: OAH Staff