BEFORE THE STRUCTURAL PEST CONTROL BOARD DEPARTMENT OF CONSUMER AFFAIRS

STATE OF CALIFORNIA

In the Matter of the Amended Accusation Against: Case No. 2017-53

SHAWN KENNETH ZUELZKE OAH No. 2017061171

Field Representative License No. FR 34246,

Respondent.

DECISION

The Proposed Decision of Theresa M. Brehl, Administrative Law Judge, dated November 3, 2017, in San Diego, California is attached hereto. Said decision is hereby amended, pursuant to Government Code section 11517(c)(2) (c) to correct technical or minor changes that do not affect the factual or legal basis of the proposed decision. The proposed decision is amended as follows:

1. On page 2, paragraph number 1, "Extermination" is stricken and replaced with "Exterminators".

2. On page 2, paragraph number 1, "Ms. Zuelzke's" is stricken and replaced with. "Mr. Zuelzke's".

3. On page 3, footnote number 7, "23450" is stricken and replaced with "23540".

4. On page 11, "Mr. Zuelske's Hearing Testimony" is stricken and replaced with "Mr. Zuelzke's Hearing Testimony"

5. On page 12, paragraph number 15, "Zuelske's" is stricken and replaced with "Zuelzke's". '

6. .On page 15, paragraph number 25, "Mr. Ramirez" is stricken and replaced with "Ms. Ramirez .

7. On page 15, paragraph number 27, "director" is stricken and replaced with "officer".

The Proposed Decision as amended is hereby accepted and adopted as the Decision and Order by the Structural Pest Control Board, Department of Consumer Affairs, State of California

This Decision shall become effective on February 23, 2018

IT IS SO ORDERED January 24, 2018

FOR THE STRUCTURAL PEST CONTROL BOARD DEPARTMENT OF CONSUMER AFFAIRS

BEFORE THE STRUCTURAL PEST CONTROL BOARD

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Amended Accusation Against: Case No. 2017-53

SHAWN KENNETH ZUELZKE OAH No. 2017061171

Field Representative's License No. FR 34246,

Respondent.

PROPOSED DECISION

Theresa M. Brehl, Administrative Law Judge, Office of Administrative Hearings, State of California, heard this matter on October 5, 2017, in San Diego, California.

Stephen A. Aronis, Deputy Attorney General, represented complainant Susan Saylor, Registrar and Executive Officer, Structural Pest Control Board, Department of Consumer Affairs, State of California.

James L. Frederick, Attorney at Law, represented respondent Shawn Kenneth Zuelzke.

The matter was submitted on October 5, 2017.'

SUMMARY

Complainant sought to revoke Mr. Zuelake's field representative license based on allegations that he was convicted of several violent and/or alcohol related crimes between

Counsel was given the opportunity to redact confidential information from the exhibits at the time of the hearing. However, a vast amount of respondent's and third parties' personal identifying information, including their dates of birth, social security numbers, driver's license numbers, home addresses, home telephone numbers, and cell phone numbers remained unredacted. Therefore, such confidential identifying information was redacted from the exhibits after submission.

2004 and 2017. Complainant also sought to recover prosecution costs of $8,605. Mr. Zuelake acknowledged he was convicted of the crimes alleged. He contended his criminal conduct occurred outside of work and he had not engaged in similar conduct while he was working. He asserted he was rehabilitated, but he did not accept full responsibility for all his criminal conduct. Mr. Zuelzke also offered evidence regarding the adverse financial impact revocation would have on him and his family.

Based on the evidence presented, Mr. Zuelake's license is revoked, and Mr. Zuelzke is ordered to pay prosecution costs of $5,000, which shall be paid as a condition of any future reinstatement of licensure.

FACTUAL FINDINGS

License History and Jurisdictional Background

1. On July 20, 2001, the board issued Applicator's License No. RA 18584, in Branches 2 and 3, to Mr. Zuelake. That license was cancelled after Mr. Zuelake was issued a Branch 2 and 3 Field Representative's License." On February 11, 2002, the board issued Field Representative's License No. FR 34246, in Branch 3, to Mr. Zuelake, as an employee of Southern California Extermination. On December 30, 2002, the board upgraded Mr. Zuelzke's Field Representative's License No. FR 34246 to include Branches 2 and 3.' Mr. Zuelzke's field representative's license will expire on June 30, 2019, unless renewed.

No prior discipline has been taken against either Ms. Zuelake's Applicator's License or his Representative's License.

2. On May 16, 2017, complainant signed the amended accusation." The amended accusation alleged that Mr. Zuelzke's field representative's license was subject to discipline because he was convicted of six convictions between 2004 and 2017 that were substantially related to the qualifications, functions, and duties of a field representative.

Although the amended accusation contained allegations regarding Mr. Zuelzke's applicator's license, that license was not mentioned in the license history certification received in evidence.

Under Business and Professions Code section 8560, subdivision (a), licenses are limited to the branch or branches of pest control for which the field representative and/or applicator has qualified. Branch 2, "General pest," relates to "the control of household pests, excluding fumigation with poisons or lethal gases." (Bus. & Prof. Code, $ 8560, subd. (a)(2).) Branch 3, "Termite," relates to "control of wood-destroying pests or organisms by the use of insecticides, or structural repairs or corrections, excluding fumigation with

poisonous or lethal gases." (Bus. & Prof. Code, $ 8560, subd. (a)(3).)

* The initial accusation was not submitted.

2

Mr. Zuelzke timely submitted a notice of defense, and this hearing ensued.

Convictions Established Through Certified Court Records

3. Certified court records were received in evidence as proof of the convictions alleged in the first, second, and third causes for discipline."

THE JUNE 27, 2008, DUI CONVICTION

4. On June 27, 2008, Mr. Zuelake was convicted in Orange County Superior Court, on his plea of guilty, of violating Vehicle Code section 23152, subdivision (a), driving under the influence, and Vehicle Code section 23152, subdivision (b), driving with a blood alcohol concentration of 0.08 percent or more, both misdemeanors. He was subject to enhancement of punishment under Vehicle Code section 23540 because he had a prior violation within the previous 10 years." In his written plea agreement, Mr. Zuelake admitted that on November 18, 2006, he drove with a blood alcohol concentration of 0.21 percent.

The court suspended imposition of sentence and placed Mr. Zuelzke on five years' summary probation. The court ordered Mr. Zuelake to complete an 18-month Multiple Offender Alcohol Program, pay fees and fines, and serve 13 days in Orange County Jail in lieu of paying a $390 fine plus penalty assessment, with 13 days credit for time served and good behavior. Mr. Zuelake was ordered to report to Alcohol Services within 10 days after his release from state prison in case number 07NF1856. Proof of completion of the 18-month Multiple Offender Alcohol Program was filed with the court on March 6, 2012, and the case was closed on September 12, 2016.

As is discussed further below, no court records were offered as evidence of the

convictions alleged in the fourth, fifth, or sixth causes for discipline.

"The criminal complaint alleged that the prior conviction was entered on February 18, 2004, for violation of Vehicle Code section 23152, subdivision (a), based on conduct that occurred on December 19, 2003.

Vehicle Code section 23450, subdivision (a), provides an enhanced punishment as follows: "If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). . . ."

Case No. 07NF1856 is discussed below under the heading "June 27, 2008, Involuntary Manslaughter Conviction."

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The incident that led to this conviction was described in a Fullerton Police Department report." According to the report, officers responded to a vehicle collision on November 18, 2006. Mr. Zuelzke was one of the drivers involved in the two-car accident, and the reporting officer's observations of Mr. Zuelake were described in the report as follows:

I made contact with the driver of the vehicle, ZUELZKE. As I spoke to ZUELZKE, I immediately smelled a strong odor of an alcoholic beverage emitting from his breath and person. His eyes were red, watery, bloodshot, and droopy. ZUELZKE'S speech was slurred and slow. I asked how much alcohol ZUELZKE had to drink and he said, "one."

CO . . . CO

Based on my observations, the results of the field coordination tests, and the totality of ZUELZKE'S symptoms, I believed he was driving under the influence of an intoxicant that impaired his ability to properly operate a motor vehicle. I arrested ZUELZKE for CVC 23152(a).

THE JUNE 27, 2008, INVOLUNTARY MANSLAUGHTER CONVICTION

5. On June 27, 2008, Mr. Zuelake was convicted in Orange County Superior Court, on his plea of guilty, of violating Penal Code section 192, subdivision (b), involuntary manslaughter, a felony, " with a hate crime enhancement pursuant to Penal Code section 422.75, subdivision (a), because Mr. Zuelake committed the crime due to the victim's race, ethnicity, and/or national origin. " In his written plea agreement, Mr. Zuelake stated: "In Orange County, on 5/6/07, I unlawfully with gross negligence committed and [sic] act which

"Police reports were received in evidence under Lake v. Reed (1997) 16 Cal.4th 448. The Lake case considered the admissibility of police reports in administrative proceedings and concluded that an officer's direct observations memorialized in a police report were admissible under Evidence Code section 1280, the public employee records exception to the hearsay rule, and admissions by a party memorialized in a police report were admissible under Evidence Code section 1220. (Id. at pp. 461-462.) The Lake court noted that other witness statements in the police report, which were not otherwise admissible under any hearsay exception, were not sufficient to establish a finding, but could be used to supplement or explain other admissible evidence, citing Government Code section 11513. (Id. at p. 461.)

10 As a result of Mr. Zuelake's plea, the original murder charge was dismissed, and the Felony Complaint was amended to include the involuntary manslaughter charge.

"The amended accusation erroneously alleged violation of Penal Code section 422.75, subdivision (a), as a separate felony.

resulted in the death of [victim] which was committed against him because of his race and national origin."

The court sentenced Mr. Zuelake to serve three years in state prison, with an additional three years as a result of the enhancement under Penal Code section 422.75, subdivision (a), for a total of six years, with 630 days credit for time served and good conduct. The court also ordered Mr. Zuelake to pay fees, fines, and restitution. Mr. Zuelake was paroled on August 24, 2010.

The incident that led to Mr. Zuelake's conviction occurred on May 6, 2007, and was described in the Fullerton Police Department's Report. On May 6, 2007, at approximately 2:15 a.m., officers were flagged down by a woman who reported that someone had been knocked down in the middle of the street. When the officers arrived at the scene, they saw a Yellow Cab Taxicab with the engine running and the driver's door open. A black man was lying on the ground approximately three feet behind the vehicle. The man's eyes were open, and he was breathing. His lip was bleeding and swollen. The man was nonresponsive, his eyes appeared glossed over, and his pupils appeared to be different sizes. Fullerton Fire Department paramedics were called, and they treated the man at the scene and transported him to the Santa Ana Western Medical Center. He was in a coma for several days, and he died after he was taken off life support on May 12, 2007.

According to the police report, three men who were at the scene told the officers that they had been waiting for a cab outside the Palapa Grill when men with tattoos and shaved heads asked them their races. While they were arguing with the tattooed men, a taxi cab arrived, and the three men got into the cab. As the cab began to pull away, the tattooed men hit the cab with their hands. The driver stopped the cab and got out, while the three passengers remained inside. One of the tattooed men punched the driver in the face, and the driver fell. The tattooed men then ran from the scene.

Police officers were later dispatched to Garden Grove Community Hospital regarding a possible stabbing. Mr. Zuelzke, who was being treated for a leg injury he sustained, was there with another man. Mr. Zuelake and his companion matched the descriptions of the men involved in the incident with the taxi cab driver, and they admitted that they had been in Fullerton for Cinco de Mayo and witnessed a verbal altercation involving a taxi cab driver. Mr. Zuelake denied that he hit the taxi cab driver, denied knowing who argued with the taxi cab driver, and denied seeing the taxi cab driver being punched. He also denied running away, and instead stated that he "took off' "two to ten minutes" after the altercation.

12 Although the witnesses' accounts constitute inadmissible hearsay that may not be considered alone to establish a factual finding, their statements were considered in reaching this decision because they supplemented and explained Mr. Zuelake's admissions in his written plea agreement and his testimony during the instant hearing regarding the circumstances leading to this conviction. (See Gov. Code, $ 11513, subd. (d).)

The police report described Mr. Zuelake's statements to one of the officers on May 6, 2007, and that officer's observations of Mr. Zuelake, as follows:

I asked ZUELZKE if he got stabbed and he said he slipped and hit a fire hydrant. I saw the cut to his right thigh just above his knee. It was an approximate four-inch laceration due to blunt trauma.

I noticed that ZUELZKE had numerous tattoos up and down his legs and arms. I specifically saw "14" and "88" tattooed on ZUELZKE. Based on my training and experience, I know "14" and "88" are hate-group symbols for neo-nazi/white supremacists.

I asked ZUELZKE what happened. ZUELZKE said, he was in downtown Fullerton drinking at the Tuscany Club. I asked ZUELZKE how much he had to drink tonight. He said a couple of (schooners) of beer. ZUELZKE said that they were going to the Back Alley Bar when they were confronted by a couple of white subjects and one was a lawyer. ZUELZKE referred to them as "White Yuppie Fuckers". ZUELZKE said that they got into a fight but could not give me any details about the fight or what the other subjects looked like. . . . OWENBY-COLLINS [Zuelzke's friend] and ZUELZKE returned back to the Tuscany Club to drink some more. ZUELZKE said, they were smoking out in front of the Tuscany Club when a yellow cab taxi pulled up and stopped on Harbor Blvd. in front of Palpa's [sic] Grill. ZUELZKE stated he got into a verbal argument with patrons from the Tuscany Club who were getting into the yellow cab, in addition to getting into a verbal argument with the cab driver. I asked ZUELZKE to describe the cab driver. He said, "Arabic, Sand Person, Sand Nigger." I asked ZUELZKE what was said between him and the taxi driver. He stated he could not recall. ZUELZKE said it was only verbal and could not give me any description of the patrons from the bar or what was said.

ZUELZKE said he and OWENBY-COLLINS walked southbound on Harbor Blvd., then eastbound on Commonwealth and found a cab to go home. ZUELZKE did not know how bad the cut to his leg was until he got home. ZUELZKE'S friend HERNADEZ drove him and OWENBY-COLLINS to the hospital.

The report also described statements Mr. Zuelake made about his tattoos to one of the other officers on May 6, 2007, as follows:

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I asked Zuelake about his tattoos that he had on his arms, and he showed me where he had "1488" on his left arm. I asked what it meant, and he told me it was the fourteen words and the "88" was Heil Hitler. I asked him if he belonged to OC Skins or Peni, and he told me he did not, but he had friends that he associated with that were.

One of the men who had been out drinking with Mr. Zuelake on the night of the incident agreed to allow police officers to tape-record a telephone conversation with Mr. Zuelzke. He spoke with Mr. Zuelake over the telephone on May 11, 2007, while the police officers listened in and recorded the call. The police report summarized that call as follows:

COLLINS told ZUELZKE that he did remember much of what happened that night. He asked ZUELZKE about the fight and ZUELZKE started talking about the first fight they were involved in. When COLLINS said that he thought they had had [sic] gotten beaten pretty good, ZUELZKE said they held their own against them. ZUELZKE said he was "pissed off and started shit with the taxi thing. I hit that taxi driver once and knocked him out cold." ZUELZKE said he ran away and hit his leg on the fire hydrant causing the injury to his leg. ZUELZKE stated again that he pretty much remembers the two incidents and stated, "I hit the mother fucker one time and knocked him out, O.K."

On May 15, 2007, officers executed a search warrant at Mr. Zuelake's residence. According to the police report, the officers found weapons and numerous items that the officers believed, based on their training and experience, "to be related to White Supremacist Ideology." The items and weapons included numerous pieces of clothing and jewelry with an "Iron Cross Insignia"; a Confederate flag; several letters from Orange County Jail inmates; photographs of Mr. Zuelake posing while giving a "Nazi salute"; ticket stubs from various "white power/punk rock type bands"; a book by Adolf Hitler entitled "Mein Kampf"; a loaded Ruger 10-22 .22 caliber rifle; a dagger with a fixed five-inch blade; a spring loaded knife with a four-inch blade; a safe containing "Adolf Hitler" and "Swastika" stamps; albums and CDs from "punk rock/white power bands"; T-shirts with "Iron Crosses," "White Pride," and various white power symbols; and a photo album containing pictures of Mr. Zuelake and others showing off their tattoos.

THE APRIL 3, 2017, BATTERY CONVICTION

6. On April 3, 2017, Mr. Zuelzke was convicted in Orange County Superior Court, on his plea of guilty, of violating Penal Code section 242, battery, a misdemeanor. In his written plea agreement, Mr. Zuelake admitted under penalty of perjury that: "On 3/3/16 in Orange County I did fully, knowingly, and unlawfully use force and violence upon the

person Andrew N. and not in self defense."

7

The court suspended imposition of sentence and placed Mr. Zuelake on three years' informal probation. The court also ordered Mr. Zuelake to not knowingly possess any type of dangerous or deadly weapon, with the exception of a Turner manufactured knife with a four-inch blade to be used for only employment purposes; attend and successfully complete a 10-week anger management program; pay fines and fees; pay restitution in an amount to be determined; and stay away from the victim and the bar were the incident leading to his conviction occurred. Mr. Zuelzke's probation is scheduled to end in April 2020.

Mr. Zuelake was arrested on March 2, 2016, for the incident that resulted in his recent April 2017 conviction. The circumstances leading to the conviction were described in the Tustin Police Department's Crime/Incident Report. Police officers were dispatched to a bar in Tustin on March 2, 2016, where one of the bartenders accused Mr. Zuelake of punching him. The officers observed that the bartender had redness on his upper neck and right jaw. While Mr. Zuelzke and another man were in the bar that night, an altercation occurred in the

men's room of the bar, after a poster was torn from the wall, and the bartender asked the two men to leave. At the time of the arrest, Mr. Zuelake denied that either he or the man he was with struck the bartender. The police report described the information the bartender gave the officers as follows:

A heated discussion ensued and one of the subjects, later identified as Shawn Zuelake, swung a closed fist at [victim's] head. [Victim] was struck in the lower right jaw / upper neck.

Additional Convictions Identified in a Department of Justice Printout

7 . The fourth, fifth, and sixth causes for discipline in the accusation alleged Mr. Zuelzke was convicted of three additional crimes during 2004. No certified court records were offered or received regarding those alleged convictions. Complainant relied on a Department of Justice search printout, which was generated on May 11, 2016, after Mr. Zuelzke's submitted his fingerprints through Live Scan, as evidence of those 2004 convictions. However, printouts generated by the Department of Justice only provide case numbers, dates, cryptic abbreviations of code sections, and "dispos" of the cases listed. Such printouts are not reliable evidence to establish that someone was convicted of a specific

Mr. Zuelzke admitted striking the bartender in Mr. Zuelzke's written plea agreement. Therefore, the victim's statement to the officers supplemented and explained Mr. Zuelake's plea agreement admission even though Mr. Zuelake denied hitting the victim when he spoke to the police and during his hearing testimony in this matter. Other statements made by the bartender who was struck, the other man involved, and another bartender who witnessed the incident were not considered in reaching this decision because those statements were inadmissible hearsay, which did not supplement or explain other admissible evidence. (See Gov. Code, $ 11513, subd. (d).)

8

crime. Indeed, several of the entries on the printout submitted in this case state "This Entry Not Substantiated by Verified Fingerprints."

The Department of Justice printout listed the following information which appeared to relate to allegations in the fourth, fifth, and sixth causes for discipline:

. February 18, 2004, conviction for violating Vehicle Code section 23152, subdivision (a), "DUI ALCOHOL/DRUGS," a misdemeanor.

June 15, 2004, conviction for violating Penal Code section 12020, subdivision (a)(1), "MANUFACTURE/POS DANG WPN/ETC," a misdemeanor.

June 28, 2004, conviction for violating Penal Code section 647, subdivision (f), "DISORDERLY CONDUCT: INTOX DRUGS/ALCOH," a misdemeanor.

8 . Complainant Susan Saylor testified about what she read in the Department of Justice printout and her interpretation of the information noted in that document. However, even though respondent's attorney may not have raised any objections, her testimony was not probative of whether Mr. Zuelake was convicted of any crimes, as she had no personal knowledge of the information and she was merely reading from the Department of Justice printout. Accordingly, her testimony on this topic was not given any weight.

9 . During the hearing, Mr. Zuelzke admitted that he was convicted of carrying a set of brass knuckles, and he had two DUI convictions. However, he was not asked to provide any further details about those convictions. He did, however, provide some additional information about those convictions in a letter he sent to the board, dated September 21, 2016.

Mr. Zuelzke's Written Explanation of His Criminal History

10. On September 2, 2016, a board criminal history analyst sent Mr. Zuelzke a letter requesting additional information about his criminal history." The analyst's letter

"Respondent's failure to object to the admission of this document does not make it reliable evidence upon which to base a finding, without more evidence, that Mr. Zuelzke was actually convicted of the crimes noted.

That letter also accused Mr. Zuelake of misleading the board on his December 2, 2002, field representative application by allegedly failing to then disclose his criminal history. However, the amended accusation did not include a cause for discipline based on misrepresentation in an application. Furthermore, complainant did not prove Mr. Zuelzke was convicted of any crimes before December 2, 2002.

9

listed several court cases that had been identified as a result of the Live Scan submission, along with handwritten notations about another court case."

1 1. Mr. Zuelake responded in a letter dated September 21, 2016, in which he stated the following regarding his criminal history:

In December 2003, after a night of drinking with my cousin, I went to sleep in a parking lot in my personal truck. I made the mistake of leaving the keys in the ignition so I could use the heater and radio. In February 2004, I was convicted of my first misdemeanor charge for a DUI, in which I had to complete a six month alcohol program, along with AA classes, and I had a restricted driver's license for one year.

In June of 2004, I was convicted of another misdemeanor for Possession of a Deadly Weapon. I was stopped by the police and searched because I was on informal probation. At that time, I had a pair of brass knuckles on me. Fortunately, I never used them but I was given community service for that conviction, in [sic] which I completed on the weekends so it wouldn't affect my job. All documents in regards to this case have been destroyed because it has been over ten years. A few weeks later, I was also convicted of a misdemeanor for Drunk in Public. I was stopped outside of a bar, while I was waiting for a taxi. I was ordered to pay a small fine for this conviction.

In November of 2006, I was charged with another DUI. This case was pending due to other charges that occurred shortly after, in May 2007. In June of 2008, I was convicted of Involuntary Manslaughter. This was an unfortunate accident that will carry on with me for the rest of my life. I was sentenced to six years in prison but only served three for good behavior and no write ups during my time there. While I was there, I was able to take classes and I also completed my continuing education hours through the mail. The same day I signed for this conviction, I also signed for the prior DUI charge from November of 2006.

[] . . . C.]

Although this letter was received in evidence without any objection, there was no evidence submitted regarding who added the handwritten notes or when those notes were

added.

10

In March of this year, I was charged with a misdemeanor for Vandalism and Assault and Battery." The case is still pending and I have full confidence that the charges will be dropped due to lack of evidence and wrongful accusations. The District Attorney originally offered a small fine and a few classes but I did not accept because I am not guilty. The person who I was with is actually the one who is guilty and wrongfully accused me for his actions. We are currently in the process of fighting the case with my lawyer and it should be dismissed soon.

12. Based on Mr. Zuelake's September 21, 2016, letter and his hearing testimony, supplemented and explained by the Department of Justice printout, sufficient evidence was presented to establish that Mr. Zuelake was convicted of violating Vehicle Code section 23152, subdivision (a), driving under the influence of alcohol, a misdemeanor, on February 18, 2004; violating Penal Code section 12020, subdivision (a)(1), possession of a dangerous weapon, a misdemeanor, on June 15, 2004; and violating Penal Code section 647, subdivision (f), disorderly conduct, intoxicated with drugs or alcohol, a misdemeanor, on June 28, 2004. 18

Mr. Zuelske's Hearing Testimony and Evidence of Rehabilitation

13. Mr. Zuelake has worked in the pest control industry for 16 years, working for his father's company, Southern California Exterminators, ever since he graduated from high school. He currently works as a termite inspector and as the manager of the company. He has been the manager for the past five years. He is responsible for all the business' day-to-day operations, including checking routes and handling his own route; making sure the operation runs smoothly, advertising; supplies; and interviewing, hiring, and firing employees. He has never had an altercation with a customer, expressed any "racial animus" toward a customer, or gone to work drunk. He treats everyone equally. According to Mr. Zuelake, no one has ever complained to the board about the company or about him. He has never been accused of violating any county or board regulation or any Department of Pesticide regulation.

Mr. Zuelake is now in his mid-30s, and he recently got married. He and his wife have a one-year old baby boy, and they bought a home in early 2017. Mr. Zuelake is concerned about how they will make their house payments if his license is revoked.

14. With respect to his involuntary manslaughter conviction, Mr. Zuelake stated that he "cannot put into words the tremendous remorse" he feels. His conduct was "not intentional," there "is no excuse," and he takes "full responsibility." He was "in the wrong."

17 This portion of Mr. Zuelake's letter referred to the circumstances that resulted in his

April 2017 battery conviction.

The amended accusation alleged the date of this conviction was June 27, 2004.

11

He conceded that the punch was intentional, but he did not intend to cause a loss of life. It "still bothers" him. He had no "concept that anything that devastating could happen." He acknowledged that someone may have said "Happy Cinco de Mayo" to him right before the incident, and that he referred to the taxi cab driver as a "Sand Nigger" when he spoke to the police. He did not recall asking any of the men who were waiting for a taxi about their race, but he acknowledged "it was possible back then." After the men got into the taxi, one of hem flipped him off, and Mr. Zuelake then hit the taxi cab with his hands. The taxi cab driver exited the cab with his arms up, and Mr. Zuelake felt the taxi driver was coming at him "with aggression" with his hands in a "boxing position." Mr. Zuelake admitted he could have fled, but he chose to swing instead, punching the taxi driver once "in the jaw." After he struck the taxi driver, he saw the taxi driver start to fall back, and Mr. Zuelake then knew he had knocked him down. Mr. Zuelake fled the scene because he "got scared."

15. Mr. Zuelake described the circumstances that led to his most recent battery conviction as "just a lapse." He decided to go out to a bar with a "young kid" from the gym one night, and he "slipped up." He stated he would not put himself in that situation again. He denied striking the bartender. Instead, he swung at the bartender, but he missed. He denied committing any vandalism, and he blamed the vandalism on the man he accompanied to the bar, who he described as only an "acquaintance." . His acquaintance pulled a sign off the wall in the men's room, and Mr. Zuelake swung at the bartender after he confronted Mr. Zuelske's acquaintance about the sign. When the police arrived, Mr. Zuelake's gym acquaintance blamed it all on Mr. Zuelake, and Mr. Zuelake declined to speak to the police. Mr. Zuelake felt stupid for being in that situation, there "are no excuses," and he thanked "God no one was hurt." His gym acquaintance paid Mr. Zuelzke's court fees, and Mr. Zuelzke has since cut off all ties with him.

16. Mr. Zuelake was also previously convicted of carrying a set of brass knuckles, and he had two additional DUI convictions. He did not provide any further testimony about those convictions.

17. Mr. Zuelake attended anger management and driving under the influence classes while he was in prison. He never missed a class and was never late. He also attended Alcoholics Anonymous (AA) classes to learn the "technique." He acknowledged that AA did not recommend that he could return to social drinking, which he has been doing, after having an alcohol problem. He described the anger management classes, which he did not initially want to attend, as "actually beneficial." Those classes dealt with areas where he could lose his temper. He found it nice to be able to interact and talk to the other participants to help control his anger.

Mr. Zuelake supplied the following evidence of his participation in court ordered programs: a Notice of Completion Certificate, showing he enrolled in a first offender program on March 3, 2004, and completed the program on September 3, 2004; a Progress Report from School Ten, Inc., which stated Mr. Zuelake completed an 18-month program on February 27, 2012; and an Anger Management Program Progress Report/Certificate, dated

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July 7, 2017, from Wel-Mor Psychology Group, Inc., that stated he had attended 10 sessions and had no absences.

18. According to Mr. Zuelake, he is now a different person than he was 10 years ago. When he was in his early 20s, he "partied" and did "stupid things." Now his life is very "routine." He goes to work, goes to the gym, and then goes home and plays with his son. He no longer goes to bars or goes out drinking. He does still drink alcohol, having "a few beers now and then," but he does not go out to bars. He and his wife have one date night a week, and he will have drinks when he and his wife go out to dinner at restaurants or at friends' homes. He relies on his wife, who is a third-grade teacher, to make sure he does not drink too much.

Mr. Zuelake stated that he has turned his life around "100 percent." He has cut ties with almost everyone with whom he used to associate. He now spends time with his wife's friends and with their families. He has no ties to any white supremacy groups, and he got rid of all the white supremacy related items he previously had. Since he was released from prison, he has spent approximately $4,500 having tattoos removed. Mr. Zuelake submitted records from the Laser Medical Center for Skin Rejuvenation, substantiating his testimony regarding having tattoos removed. He did not want his son to see the things that he had tattooed on himself. He stated he is "not a white supremacist," he has disposed of the paraphernalia he collected during his 20s, it was "ignorant," and "no way of life." After he got out of prison "it was not the lifestyle" he wanted. He just wanted to settle down and have a family. His wife keeps him "on track" and makes sure he "stays on the straight and narrow."

19. In 2013 and 2016, Mr. Zuelake served as a subject matter expert for the board. In 2013, he graded questions, which involved reading and rewording potential questions to be used on license examinations. In 2016, he helped write examination questions. In addition to per diem fees for participating as a subject matter expert, Mr. Zuelake also received continuing education credit. Mr. Zuelake submitted two certificates and a letter he received from the board regarding his participation as a subject matter expert in 2013 and 2016.

Character Evidence

20. Mr. Zuelake called Ronald Zuelake, his father; Michelle Renee Zuelake, his wife; Ronald Williams, a Southern California Exterminator employee; and Liliana Ramirez, a real estate agent who has referred business to him, as character witnesses. He also submitted reference letters from his father and Ramona Hernandez, a Southern California Exterminator employee.

21. Ronald Zuelzke is the president of Southern California Exterminators, which he incorporated in 1968. His son acts as the manager of the business and as a termite inspector. Ronald Zuelake testified that he has not received any customer complaints about his son, who he described as a "very likeable person," "very quiet," and "easy going." His

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son has not had any problems drinking on the job, getting into altercations with customers, or engaging in any "racial misconduct." He has never been hostile toward customers. He never raises his voice, and he sets a good example for the employees. Ronald Zuelake stated that his son did everything that was required of him as a result of his guilty pleas.

According to Ronald Zuelzke, his son "played a lot" after high school, but he has settled down in the last 10 to 15 years. His son has become an adult, calmed down, taken more responsibility, and is more mature. Ronald Zuelake has trusted his son with his business, and he is proud of his son. Mr. Ronald Zuelake did not believe his son had ties to white supremacists, he was not aware there was any racial bias involved in the involuntary manslaughter conviction, and he did not believe his son struck the bartender resulting in the most recent conviction.

According to his father, if Mr. Zuelake loses his license, he will not lose his job, but he will suffer a significant reduction in his income because he will not be able to perform terminate inspections or do other things for which he needs a license.

22. Ms. Zuelzke is a third-grade teacher and has worked for the Tustin Unified School District for the past 13 to 14 years. She has known Mr. Zuelake for 12 years. She dated him previously when they were in their 20s, but they broke up because they were not on the same paths. They started talking again in late 2015, and she saw a great change in him, which is why she dated him again and then married him. She described him as a "different guy" than when he was younger. He is now responsible, he does what he says he is going to do, and he treats her well. She trusts him 100 percent.

According to Ms. Zuelzke, her husband does not go out to bars now. He drinks socially, having a beer or two when they go out to dinner. She is always the designated driver, because she does not drink alcohol. They mainly hang out with her friends, usually going to dinner at someone's house. She stated that her husband has no ties to white supremacists, and he gets along well with her friends, who are of a variety of different races. She described her husband as shy and stated that he does not get angry with her.

If her husband loses his job, Ms. Zuelake believes they will lose the house they bought in February 2017.

23. Ronald Williams is an inspector for Southern California Exterminators, where he has worked for the past three years. He has worked in the industry for over 20 years. He testified that he has observed Mr. Zuelake during the day-to-day operations of the company, and described him as the person who ran the "majority of what happened." He described Mr. Zuelzke as "almost too mild mannered," and someone who does his job well. Mr. Williams has never heard Mr. Zuelake raise his voice, yell, or degrade anyone. He said Mr. Zuelake was very accommodating with customers.

24. Ramona Hernandez, another Southern California Exterminator employee, wrote a reference letter dated September 13, 2016. In her letter, which she wrote when she

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had been employed by the company for a little over one year, she stated that Mr. Zuelake was a "great boss," who was "respectful and courteous to others." Her letter did not indicate that she was aware of Mr. Zuelake's convictions.

25. " Ms. Ramirez has been a real estate salesperson since 2003, and she has referred business to Southern California Exterminators and Mr. Zuelake. She described Mr. Zuelzke as a "big asset" to her "team." He always answered her calls, got things scheduled, showed up on time, and got reports to her in a timely fashion. Ms. Ramirez described him as "professional," "dependable," and "laid back." She has not seen him get drunk, be angry, or show any racial animosity. Mr. Ramirez was not fully aware of Mr. Zuelake's criminal

history, having only heard "bits and pieces." She did not know about his convictions for involuntary manslaughter, possession of brass knuckles, or battery, or anything "specific to alcohol." After being told about those convictions during cross-examination, she testified that it did not change her opinion of him. Given the nature of Mr. Zuelake's crimes, it was not credible that learning of the circumstances of his crimes would not influence Ms. Ramirez's opinion of him.

26. With the exception of Ms. Ramirez, all Mr. Zuelake's character references and witnesses were either family members or persons who work for Mr. Zuelake and his father. Therefore, their testimony was afforded very little weight, given their bias and financial

incentive to help Mr. Zuelake maintain his license.

Complainant's Testimony

27. Complainant Susan Saylor, the board's registrar and executive officer, has worked for the board since 1997. In August 2012, she was appointed to serve as the registrar and executive director on an interim basis, and she was permanently appointed to serve in those positions in July 2013. Ms. Saylor testified about the board's recent requirement that fingerprints be provided through Live Scan for license renewals, discovery of Mr. Zuelzke's criminal history, and her concerns about the crimes he committed."

28. Ms. Saylor explained that the board did not require licensees to provide Live Scan fingerprints to check their criminal histories until February 2016, when California Code of Regulations, title 16, section 1960, first required a Live Scan for renewal of licenses. Mr. Zuelzke needed to supply fingerprints through Live Scan to renew his license for the first time in June 2016. Therefore, although Mr. Zuelake had been licensed since 2001, the board was not aware of his criminal history until it received the results from the Live Scan in a May 11, 2016, Department of Justice report. Ms. Saylor reviewed the report and was concerned about the violent nature of the crimes identified and that the report indicated that he had also been convicted of crimes related to abuse of alcohol. Licensees are required to drive to

Ms. Saylor also testified about how it was that Mr. Zuelake ended up being allowed to serve as a subject matter expert after the board learned of his criminal history. That information is not discussed further here because it had no bearing on the conclusions reached in this decision.

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buildings and residences being serviced and have contact with a variety of different consumers. Therefore, if a licensee is abusing alcohol or has violent tendencies, he or she could pose a danger to the public.

Cost Recovery

29. Complainant sought recovery of enforcement costs of $8,605. The Deputy Attorney General who prosecuted the case executed a declaration regarding the prosecution costs. Attached to his declaration was a document entitled "Master Time Activity by Professional Type," that identified the tasks performed, the time spent on each task, and the hourly rate. The reasonable costs of the prosecution were $8,605.

LEGAL CONCLUSIONS

1 . The main purpose of administrative disciplinary proceedings is to protect the public through the prevention of future harm and the improvement and rehabilitation of the licensee. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856.)

The Standard and Burden of Proof

2. . Complainant bears the burden of proof of establishing that the charges in the accusation are true. (Martin v. State Personnel Board (1972) 26 Cal.App.3d 573, 583.)

3. In determining the proper standard of proof to apply in administrative license revocation proceedings, courts have drawn a distinction between professional licenses such as those held by doctors, lawyers, and real estate brokers, on the one hand, and nonprofessional or occupational licenses such as those held by food processors and vehicle salespersons, on the other hand. In proceedings to revoke professional licenses, the clear and convincing evidence standard of proof applies, while in proceedings to revoke nonprofessional or occupational licenses, the preponderante of the evidence standard of proof applies. (Lone Star Sec. & Video, Inc. v. Bureau of Security and Investigative Services (2012) 209 Cal.App.4th 445, 453.)

4. A nonprofessional license typically is issued without the need to demonstrate any specific education or skill and upon the mere showing of good character. In contrast, an applicant for a professional license must ordinarily satisfy extensive educational and training requirements and then pass a rigorous state administered competency examination. The sharp distinction between professional licenses and nonprofessional licenses supports a distinction in the standards of proof needed to revoke these two different types of licenses. (Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 319.)

5 . Business and Professions Code section 8560 et seq. sets forth the qualifications for a pest control operator's license. An applicant must be 18 years of age or older, must have experience working in the field for a registered pest control company, must

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have passed board-approved courses, and must pass an examination. (See Bus. & Prof. Code, $8 8561, 8562, 8563, 8564, 8564.5, 8564.6, 8565, 8565.5, and 8566.) The preponderance of the evidence standard applies in this proceeding because pest control applicator and field representative licenses are nonprofessional or occupational licenses that may be issued upon showing a minimal level of formal education, training, and experience.

6. "Preponderante of the evidence means evidence that has more convincing force than that opposed to it.' [Citations.]" (Glage v. Hawes Firearms Company (1990) 226 Cal.App.3d 314, 324-325.) "The sole focus of the legal definition of 'preponderante' in the phrase 'preponderante of the evidence' is on the quality of the evidence. The quantity of the evidence presented by each side is irrelevant." (Ibid., italics in original.) "If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it [citation]." (People v. Mabini (2001) 92 Cal.App.4th 654, 663.)

7 . In a disciplinary proceeding, the burden of proof is on respondent to produce positive evidence of rehabilitation. (Epstein v. California Horse Racing Board (1963) 222 Cal.App.2d 831, 842-843.)

Statutory and Regulatory Authority

8. Business and Professions Code section 490 permits a board to "suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued." Business and Professions Code section 8620 provides that the pest control board may "temporarily suspend or permanently revoke a license issued under this chapter if the holder, while a licensee or applicant, is guilty of or commits any one or more of the acts or omissions constituting grounds for disciplinary action."

9. Business and Professions Code section 8649 provides:

Conviction of a crime substantially related to the qualifications, functions, and duties of a structural pest control operator, field representative, applicator, or registered company is a ground for disciplinary action. The certified record of conviction shall be conclusive evidence thereof.

10. . Business and Professions Code section 493 provides:

Notwithstanding any other provision of law, in a proceeding conducted by a board within the department pursuant to law to deny an application for a license or to suspend or revoke a license or otherwise take disciplinary action against a person who holds a license, upon the ground that the applicant or the licensee has been convicted of a crime substantially related to

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the qualifications, functions, and duties of the licensee in question, the record of conviction of the crime shall be conclusive evidence of the fact that the conviction occurred, but only of that fact, and the board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, and duties of the licensee in question.

As used in this section, "license" includes "certificate," "permit," "authority," and "registration."

11. Business and Professions Code section 8655, which applies specifically to this board, provides as follows:

A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge substantially related to the qualifications, functions, and duties of a structural pest control operator, field representative, applicator, or registered company is deemed to be a conviction within the meaning of this article or Section 8568 of this chapter. The board may order the license or registration suspended or revoked, or may decline to issue a license, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing the individual or registered company to withdraw a plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information or indictment.

12. "A plea of guilty in a criminal prosecution is "a conclusive admission of [his] guilt and of every element entering into the offense charged' [citation] and 'constitutes no less than a confession of every factor comprising the charges contained in the pleading

(Citation.] .... The effect is the same as if the defendant had been tried before a jury and had been found guilty upon evidence covering all material facts." (Arenstein v. California State Bd. of Pharmacy (1968) 265 Cal. App. 2d 179, 189.) A plea is "conclusive evidence of [respondent's] guilt of the offense charged." (Arneson v. Fox (1980) 28 Cal.3d 440, 449.) A respondent in an administrative proceeding is "not permitted to impeach his conviction by explaining the 'true' reasons" for the plea. (Ibid.)

Substantial Relationship to the Qualifications, Functions, and Duties

13. The conclusion that a conviction or act justifies discipline of a licensee requires a "reasoned determination that the conduct" in question "was substantially related to

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the licensee's fitness to engage in the profession. [Citation.] . . . [Llicensing authorities do not have unfettered discretion to determine whether a given conviction is substantially related to the relevant professional qualifications. [Citation.]" (Robbins v. Davi (2009) 175 Cal.App.4th 118, 124.) Licensing authorities are required to develop criteria to aid them in making that determination. (Bus. & Prof. Code, $ 481.)

14. California Code of Regulations, title 16, section 1937.1, states:

For the purposes of denial, suspension or revocation of a license or company registration pursuant to Division 1.5 (commencing with Section 475) of the code, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a licensee or registered company under Chapter 14 of Division 3 of the code if to a substantial degree it evidences present or potential unfitness of such licensee or registered company to perform the functions authorized by the license or company registration in a manner consistent with the public health, safety, or welfare. Such crimes or acts shall include, but not be limited to, the following:

(a) Any violation of the provisions of Chapter 14 of Division 3 of the code.

(b) Commission of any of the following in connection with the practice of structural pest control:

(1) Fiscal dishonesty

(2) Fraud

(3) Theft

(4) Violations relating to the misuse of pesticides.

Cause Exists to Discipline Mr. Zuelzke's License

15. The pest control industry is highly regulated. The statutes regulating the industry are designed to protect consumers and the public who could be harmed by chemicals used in the process of pest control. (See, Bus. & Prof. Code, $ 8505.4-8504.12.) Pest

control licensees drive to consumers' properties, negotiate contracts with consumers, inspect properties to determine whether pest control services would be necessary or beneficial to a property owner or occupant, and may be in and around consumers' homes.

16. Complainant proved by a preponderance of the evidence that Mr. Zuelake was convicted of violating Penal Code section 242, battery, a misdemeanor, on April 3, 2017

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(First Cause for Discipline); violating Penal Code section 192, subdivision (a), involuntary manslaughter, a felony, on June 27, 2008 (Second Cause for Discipline); violating Vehicle Code sections 23152, subdivision (a), driving under the influence of alcohol, and 23152, subdivision (b), driving with a blood alcohol concentration of 0.08 percent or more, both misdemeanors, on June 27, 2008 (Third Cause for Discipline); violating Penal Code section 647, subdivision (f), disorderly conduct: intoxicated alcohol, a misdemeanor, on June 28, 2004 (Fourth Cause for Discipline); violating Penal Code section 12020, subdivision (a)(1), possession of a dangerous weapon, a misdemeanor, on June 15, 2004 (Fifth Cause for Discipline); and violating Vehicle Code section 23152, subdivision (a), a misdemeanor, on February 18, 2004 (Sixth Cause for Discipline).

17. Mr. Zuelake engaged in two violent crimes, one crime that involved the possession of a dangerous weapon, and several crimes that involved alcohol abuse. Therefore, even though Mr. Zuelake did not commit his crimes while he was working, each of his crimes was substantially related to the qualifications, functions, and duties of a structural pest control licensee because his convictions evidence a present or potential unfitness to perform the functions authorized by his license in a manner consistent with the public health, safety, or welfare.

18. Accordingly, cause exists to discipline Mr. Zuelzke's field representative license pursuant to Business and Professions Code sections 490 and 8649 because he was convicted of crimes that were substantially related to the qualifications, functions, and duties of a structural pest control licensee.

Authority Regarding Rehabilitation and Appropriate Discipline

19. Rehabilitation is a state of mind, and a person who has reformed should be rewarded with the opportunity to serve. (Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1058.) "While a candid admission of misconduct and a full acknowledgement of wrongdoing may be a necessary step in the process, it is only a first step. In our view, a truer indication of rehabilitation will be presented if petitioner can demonstrate by his sustained conduct over an extended period of time that he is once again fit to practice. ..." (In re Conflenti (1981) 29 Cal.3d 120, 124-125.)

20. Because persons "under the direct supervision of correctional authorities are required to behave in exemplary fashion, little weight is generally placed on the fact that an individual did not commit additional crimes or continue addictive behavior while in prison or while on probation or on parole." (In re Gossage (2000) 23 Cal.4th 1080, 1099.)

21. Each board is required to develop criteria to evaluate the rehabilitation of a person when considering suspension or revocation, and each board must "take into account all competent evidence of rehabilitation furnished by the . . . licensee." (Bus. & Prof. Code, $ 482.)

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22. California Code of Regulations, title 16, section 1937.2, subdivision (b), sets forth the board's criteria for rehabilitation, when considering suspension or revocation, as follows:

When considering the suspension or revocation of a structural pest control license or company registration on the grounds that the licensee or registered company has been convicted of a crime, the board, in evaluating the rehabilitation of such person or company and his or her or its present eligibility for a license or company registration will consider the following:

(1) Nature and severity of the act(s) or offense(s).

2) Total criminal record.

(3) The time that has elapsed since commission of the act(s) or offense(s).

(4) Whether the licensee or registered company has complied with any terms of parole, probation, restitution or any other sanctions lawfully imposed against the licensee or registered company.

(5) If applicable, evidence of expungement proceedings pursuant to Section 1203.4 of the Penal Code.

(6) Evidence, if any of rehabilitation submitted by the licensee or registered company.

23. Under Business and Profession Code section 8654, any person whose license has been revoked as a result of disciplinary action "shall be prohibited from serving as an officer, director, associate, partner, qualifying manager, or responsible managing employee of a registered company, and the employment, election or association of such person by a registered company is a ground for disciplinary action."

24. The board's Manual of Disciplinary Guidelines and Model Disciplinary Orders (guidelines) provides:

The Board recognizes that these penalties and conditions of probation are merely guidelines and that administrative law. judges must be free to exercise their discretion in such cases. However, the Board desires that these guidelines be followed to the extent possible and requests that the administrative law judge hearing the case include some explanation of any departure or omissions from the guidelines in the proposed

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decision so that the circumstances can be better understood by the Board during its review of the case for ultimate decision.

The Board desires that matters in extenuation or mitigation, as well as those in aggravation, be fully considered and noted in the proposed decision. Of primary importance is the effect the licensee's/registrant's conduct had or can have on the public as consumers.

25. . The guidelines provide minimum and maximum penalties for various violations. For discipline imposed under Business and Professions Code section 8649 due to a conviction of a substantially related crime, the maximum penalty is revocation, with an optional condition requiring that the respondent not have any beneficial or legal interest in any company registered by the board. The minimum penalty is revocation, stayed, with three years' probation subject to appropriate terms and conditions.

26. The guidelines also set forth factors to be considered when "determining whether the minimum, maximum, or an intermediate penalty is to be imposed in a given case," including: "Actual or potential harm" to the public or any consumer; "prior disciplinary record"; "number and/or variety of current violations"; "mitigation evidence"; "in case of a criminal conviction, compliance with the terms of sentence"; "overall criminal record"; "whether the conduct was knowing, willful, reckless or inadvertent"; "the financial benefit to the respondent"; "evidence that the unlawful act was part of a pattern of practice"; and whether respondent is "currently on probation."

Evaluation of Appropriate Discipline

27. Mr. Zuelake was convicted of several serious crimes. Between 2004 and 2008, he suffered three crimes resulting from his abuse of alcohol, two of which involved driving under the influence of alcohol. In 2004, he was convicted of possessing a dangerous weapon, which he admitted was a set of brass knuckles. Then, in 2008, he was convicted of involuntary manslaughter, with an enhanced sentence because his crime was motived by the race or national origin of his victim. While he may not have thought his conduct would result in a loss of life, he struck his victim with such force that his victim fell, was severely injured, and later died. Mr. Zuelake fled the scene and was dishonest when law enforcement asked him about his involvement. When the police searched his home, numerous items that displayed ties to white supremacist groups were found. The police also found weapons, including a rifle and knives. Mr. Zuelake made comments to the police about his victim which showed a racial animus, and he admitted in his written plea agreement that his crime was racially motivated.

28. Mr. Zuelake served his prison term, attended court-ordered alcohol and anger management programs, disassociated himself from the white supremacy groups with which he previously associated, and spent a considerable amount of time and money to remove the Neo-Nazi tattoos from his body. He recently married a third-grade teacher, has a baby boy,

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and bought a new home. He has the support of his wife and his father. He expressed his regret and remorse for the loss of life he caused. However, Mr. Zuelake also referred to the involuntary manslaughter conviction as the result of an "unfortunate accident," minimizing the serious nature of his crime. While Mr. Zuelzke may not have expected his conduct would cause his victim to die, it was not an accident, as he purposely punched his victim.

29. Despite his expressions of remorse for his earlier crimes and the fact that most of his criminal behavior, including the involuntary manslaughter conviction, involved alcohol, Mr. Zuelake continues to drink alcohol and he was convicted in April of 2017 for committing another violent crime, battery, while he was out drinking. He remains on probation for that crime. It is particularly troubling that, even after a man died because Mr. Zuelzke punched him, Mr. Zuelake punched another man in March of 2016, resulting in his April 2017 conviction. 'Although Mr. Zuelake pled guilty to the recent battery charge, he did not accept responsibility for his crime during the instant hearing. Instead, he denied punching that victim, although he admitted that he tried to punch him, but he missed. In his September 21, 2016, letter to the board he even stated that he did nothing wrong.

Based on Mr. Zuelzke's 2017 conviction, there can be no other conclusion than that Mr. Zuelake still cannot control his anger or his drinking. Mr. Zuelake remains on probation for that conviction, he did not take responsibility for his actions that resulted in that conviction, and his rehabilitation evidence predated that conviction. Therefore, the only option to assure public protection at this time is revocation.

Recovery of Costs of Enforcement

30. Business and Professions Code section 125.3 provides in pertinent part:

(a) Except as otherwise provided by law, in any order issued in resolution of a disciplinary proceeding . . . the board may request the administrative law judge to direct a licentiate found to have committed a violation . . . of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case . . . .

[ . . . C

(d) The administrative law judge shall make a proposed finding of the amount of reasonable costs of investigation and

prosecution of the case when requested pursuant to subdivision (a) . ...

31. In Zuckerman v. State Board of Chiropractic Examiners (2002) 29 Cal.4th 32, the California Supreme Court dealt with the issue of cost recovery and noted that because a licensee with limited financial resources might forego a hearing for fear that a board might erroneously sustain the charges and order the licensee to reimburse costs, discretion must be

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used to ensure that a licensee with a meritorious claim is not deterred from exercising his or her right to a hearing. (Id. at p. 44.) The Court determined that five factors should be considered in determining whether a particular licensee should be ordered to pay the

reasonable costs of investigation and prosecution under statutes similar to Business and Professions Code section 125.3: Whether the licensee was successful at hearing in having charges dismissed or reduced, the licensee's subjective good faith belief in the merits of his or her position, whether the licensee raised a colorable challenge to the proposed discipline, the financial ability of the licensee to pay, and whether the scope of the investigation was

appropriate in light of the alleged misconduct. (Ibid.)

32. Here, Mr. Zuelake engaged in the conduct alleged in the amended accusation. While Mr. Zuelzke exhibited a subjective good faith belief in the merits of his position that he had been rehabilitated, he did not raise a colorable challenge to the discipline in pursuing a hearing because he failed to prove he had been rehabilitated since his most recent crime. Complainant did not conduct a disproportionately large prosecution to prove relatively innocuous misconduct; Mr. Zuelake's conduct was of a very serious nature. Finally, the evidence showed that if Mr. Zuelake's license is revoked his income will be significantly reduced and he may not be able to afford his mortgage payments.

33. Due to the financial impact revocation will have on Mr. Zuelake, the costs shall be reduced to $5,000 and Mr. Zuelzke shall only be required to reimburse the board its costs of prosecution as a condition of a future reinstatement of licensure.

ORDER

Field Representative License No. FR 34246 issued to respondent Shawn Kenneth Zuelake is revoked.

2. Respondent Shawn Kenneth Zuelake is prohibited from serving as an officer, director, associate, partner, qualifying manager, or branch office manager of any registered company during the period that discipline is imposed on Field Representative License No. FR 34246.

3. Respondent Shawn Kenneth Zuelzke shall not have any legal or beneficial interest in any company currently or hereinafter registered by the board during the period that discipline is imposed on Field Representative License No. FR 34246.

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4. If respondent Shawn Kenneth Zuelake seeks reinstatement of licensure from the board, he shall pay to the board the costs associated with its prosecution pursuant to Business and Professions Code Section 125.3 in the amount of $5,000. Nothing in this provision shall be construed to prohibit the board from reducing the amount of cost recovery or entering into a payment plan agreement with respondent upon a future reinstatement of his license.

DATED: November 3, 2017

Docusigned by:

Theresa M Bieke ASBCD1C96F 194AE..

THERESA M. BREHL Administrative Law Judge Office of Administrative Hearings

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