ALJDEC

01A-020-INS · Department of Insurance · 2001-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On March 21, 2001, a hearing was scheduled to determine if the Respondent’s insurance agent’s license should be disciplined pursuant to A.R.S. §20-316. Assistant Attorney General Shelby L. Cuevas appeared on behalf of the Arizona Department of Insurance (the “Department”). Deborah Kay Krier (the “Respondent”) failed to appear for the hearing scheduled in this matter. The record was kept open until approximately 2:00 p.m. to allow for the appearance of the Respondent or the receipt of any information which would constitute good cause for the Respondent’s absence or delay. No such information was received from or on the behalf of the Respondent. Based upon the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT 1. The Respondent is the holder of a life and disability insurance non- resident agent’s License No. 74782. See Department’s Exhibits 1 & 4. License No. 74782 is scheduled to expire March 31, 2001. See Department’s Exhibit 1.

2. On or about June 8, 1993, the Respondent entered a plea of guilty to the misdemeanor charge of Theft in the Third Degree in The State of Iowa v. Deborah Krier, Criminal Case No. 69227, in the Iowa District Court for Polk County. See Department’s Exhibit 10. The Court deferred judgment and placed the Respondent on two years probation. Id. The Court also ordered the Respondent to perform forty (40) hours of community service and attend a misdemeanor program. Id. On July 25, 1994, the Respondent was discharged from probation. See Department’s Exhibit 11.

3. On or about February 16, 1999, the Respondent filed an application (the “Application”) with the Department for a life and disability insurance agent’s license. See Department’s Exhibit 2. Section V, Question D of the Application asked the following:

Have you EVER had any judgment, order or other determination, including any criminal conviction issued or made against you in any criminal, civil, administrative or other judicial or quasi-judicial proceeding of any kind in any jurisdiction based on any of the following: 1. Misappropriation, conversion or the withholding of moneys? . . .

Id. at page 2. The Respondent answered “No” to Question D.1 in Section V of the Application. Id.

4. Section II of the Application asked the following:

. . . list the EXACT, FULL NAMES of all Arizona-admitted insurance companies (carriers/underwriters) you are authorized to represent subject to the issuance of the license for which you are applying.

See Department’s Exhibit 2, at page 1. The Respondent listed JC Penney Life Insurance Co. on her Application as the only Arizona-admitted insurance company that she was authorized to represent. Id.

5. The Respondent was employed by APAC Customer Services Inc. (“APAC”) as an agent. See Department’s Exhibit 6. APAC contracted with J.C. Penney Life Insurance Company (“J.C. Penney”) to perform direct marketing and customer services for J.C. Penney insurance products. Id. On or about June 7, 1999, APAC terminated the Respondent’s employment. Id.

6. The Respondent failed to appear for the hearing scheduled on March 21, 2001, at 1:30 p.m. at the Office of Administrative Hearings located at 1400 West Washington Street, Suite 101, Phoenix, Arizona. The Notice of Hearing correctly states the date, time and location of the hearing in this matter. The Notice of Hearing was sent to the Respondent at P.O. Box 3300, Cedar Rapids, IA 52406-3300 and 2503 South 8th Avenue East, Newton, IA 50208. The undersigned Administrative Law Judge finds that the Respondent had proper notice of this hearing.

CONCLUSIONS OF LAW 1. The Department has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Respondent’s life and disability insurance agent’s License No. 74782 shall automatically expire because the Respondent no longer represents an insurer authorized by the Department. A.R.S. §20-315(A).

3. The Respondent’s failure to disclose her 1993 misdemeanor conviction for Theft in the Application is a cause for which the renewal of a license could have been refused within the meaning of A.R.S. §20-316(A)(1).

4. The Respondent’s failure to disclose her 1993 misdemeanor conviction for Theft in the Application represents the willful violation of, or the willful noncompliance with, any provision of Title 20, or any lawful rule or order of the Director. A.R.S. §20-316(A)(2).

5. The Respondent’s failure to disclose her 1993 misdemeanor conviction for Theft in the Application represents a misrepresentation or fraud in obtaining or attempting to obtain an insurance license. A.R.S. §20- 316(A)(3).

6. The Respondent’s 1993 misdemeanor conviction for Theft is a record of dishonesty in business or financial matters. A.R.S. §20-316(A)(8).

7. The undersigned Administrative Law Judge concludes that grounds exist to cancel or revoke the Respondent’s License No. 74782 pursuant to A.R.S. §20-315(A) and A.R.S. §20-316(A) .

RECOMMENDED DECISION The undersigned Administrative Law Judge recommends that the Respondent’s License Number 74782 be revoked.

Done this day, March 27, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 2001, to:

Charles R. Cohen Department of Insurance ATTN: Curvey Burton 2910 North 44th Street, Ste. 210 Phoenix, AZ 85018

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826