ALJDEC

01A-124-INS · Department of Insurance · 2001-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 22, 2001 APPEARANCES: Petitioner Mark Andrew Sullivan appeared on his own behalf. Assistant Attorney General Shelby Cuevas represented the Arizona Department of Insurance. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

Mark Andrew Sullivan appealed the Arizona Department of Insurance’s April 5, 2001 denial of his application for a life and disability insurance agent’s license. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT On April 2, 2001, Mark Andrew Sullivan submitted an application to the Arizona Department of Insurance (the “Department”) for an individual life and disability insurance agent’s license. The Department’s license application form (Section V, Question A) requires the applicant to answer the following question: “Have you EVER been convicted of any felony?” Mr. Sullivan answered this question in the affirmative, and disclosed that on September 27, 1994, he had been convicted of a “Felony II Conspiracy to commit the sale of a controlled substance to whit [sic] cocaine.” [See Exhibits 1 and 1a] Mr. Sullivan went on to explain that he was a recovering drug addict and alcoholic, that he had been addicted to cocaine and alcohol since the age of 22, but that he had over five years of “living life sober,” was an active member of both Cocaine Anonymous (“CA”) and Alcoholics Anonymous (“AA”), and was dedicated to maintaining his sobriety. By letter dated April 5, 2001, the Department notified Mr. Sullivan that his application had been denied pursuant to A.R.S. § 20-290(C)(6). A.R.S. § 20-290(C)(6) provides: “The Director [of the Department] may refuse to accept any application or issue any license under this article if the Director finds . . . [a] record of conviction by final judgment of a felony involving moral turpitude.” The evidence adduced at hearing corroborates Mr. Sullivan’s disclosure to the Department. On June 29, 1993, a Maricopa County Grand Jury indicted Mr. Sullivan on one count of sale of narcotic drugs (a class felony) and on one count of sale of marijuana (a Class 4 felony). [See Exhibit 3] On August 30, 1994, Mr. Sullivan pled no contest to one count of conspiracy to sell narcotic drugs, a class 2 felony. [See Exhibit 4] On September 27, 1994, Maricopa County Superior Court Judge Barbara M. Jarrett suspended imposition of sentence and placed Mr. Sullivan on probation for a period of four years. Judge Jarrett further ordered that Mr. Sullivan pay a fine in the amount of $2,800.00 plus other assessments, and that Mr. Sullivan complete 360 hours of community service as directed by his probation officer. [See Exhibits 6 and 7] Mr. Sullivan was discharged from probation by Order dated September 14, 1998. In that Order, the Court noted that Mr. Sullivan had failed to comply with terms 12 (payment of fines and other fees) and 16 (community service) of his probation. [See Exhibit 9] At hearing, Mr. Sullivan acknowledged that he had not yet completed payment of the fine and other assessments imposed upon him as a condition of probation. However, Mr. Sullivan credibly testified that he was continuing to work towards making full payment. Regarding the Court’s notation that Mr. Sullivan had failed to complete the required 360 hours of community service, Mr. Sullivan credibly testified that he had in fact completed hours of community service in excess of this requirement, and that the probation office had erroneously calculated his community service hours. At hearing, Mr. Sullivan testified at length regarding his past drug and alcohol abuse, and the efforts he has made, through programs such as AA and CA, to fight his addiction to those substances. The weight of the credible evidence demonstrated that Mr. Sullivan has successfully maintained sobriety since October 1995. Mr. Sullivan is active in the community, where he mentors drug and alcohol addicts to help them maintain their own sobriety. Mr. Sullivan is active in CA, and works both CA and AA meetings when available or as needed. Mr. Sullivan also speaks to inmates about drug and alcohol abuse every Monday night. Mr. Sullivan is currently employed as a salesperson for Hague Quality Water. His employer is aware of Mr. Sullivan’s past history. Mr. Sullivan is married and has three children. Mr. Sullivan served in the United States Navy for eight years ( three years on active duty, one year on active reserves and four years on inactive reserves. Mr. Sullivan received a general discharge. Mr. Sullivan testified that if his license application is granted, he plans to serve as a general agent for Dick Saine of American Planning Services, with a focus on selling long term care insurance to elderly persons in the Sedona and Prescott areas. Mr. Saine is aware of Mr. Sullivan’s past history. Mr. Sullivan does not, at present, intend to obtain any other insurance licenses. Among the exhibits admitted into evidence in this matter are four letters of recommendation written in Mr. Sullivan’s behalf. The first, Exhibit 1b, is a letter dated March 30, 2001 from attorney David E. Wolak, who became acquainted with Mr. Sullivan through Mr. Sullivan’s employment at MCI WorldCom. Mr. Wolak stated that while he does not know Mr. Sullivan personally, he found Mr. Sullivan to be a “knowledgeable, professional and ethical representative.” The second letter of recommendation in evidence, Exhibit 1c, is a letter dated April 1, 2001 from Douglas Robert Gray, a licensed life, health, and property and casualty insurance agent in Arizona. Mr. Gray has known Mr. Sullivan for several years and is familiar with Mr. Sullivan’s addictions. Mr. Gray described Mr. Sullivan as having always displayed “a high level of integrity,” and as a person who would “always represent his companies and clients fairly and honestly.” Mr. Gray recommended that the Department grant Mr. Sullivan an insurance agent’s license. The third letter of recommendation in evidence, Exhibit 1d, is a letter dated April 2, 2001 from R. Michael Ross, Mr. Sullivan’s manager at Hague Quality Water. Mr. Ross described Mr. Sullivan as having, during his employment, shown the “utmost professionalism” in his dealings both with Hague Quality Water and his customers. Mr. Ross described Mr. Sullivan as a “valuable asset” to the company and Mr. Sullivan’s character as “beyond reproach.” The fourth letter of recommendation in evidence, Exhibit 1e, is a letter dated April 1, 2001 from Mike Mannino, a Phoenix Police Officer. Officer Mannino has known Mr. Sullivan for approximately 25 years, and is aware of Mr. Sullivan’s substance abuse problem. Officer Mannino described Mr. Sullivan as a “success story in every sense of the word,” stating that Mr. Sullivan “has turned his life around 360 degrees and is truly an inspiration to others.” Officer Mannino expressed confidence that Mr. Sullivan would be an asset to the insurance industry. None of the aforementioned persons appeared to give testimony at the hearing in this matter, and therefore the Department was unable to cross- examine any of these witnesses as to the basis for their opinions. Consequently, although the Administrative Law Judge admitted their written statements as evidence, the Administrative Law Judge gave those statements less evidentiary weight in the determination of this matter. The Administrative Law Judge, having viewed Mr. Sullivan’s demeanor at the hearing and having listened to his testimony, found Mr. Sullivan to be a man sincerely and legitimately committed to continued sobriety, to working through the mistakes of his past, and to being a productive member of society. CONCLUSIONS OF LAW In this proceeding, Mr. Sullivan bears the burden to prove, by a preponderance of the evidence, that the Department’s denial of his application should be reversed. See A.R.S. § 41-1092.07(G) and Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). A.R.S. § 20-290(C)(6), the authority under which the Department denied Mr. Sullivan’s license, grants discretion to the Director of the Department to deny a license to a person who has been convicted of a felony involving moral turpitude. Mr. Sullivan’s record includes one such conviction. In light of Mr. Sullivan’s conviction, sufficient grounds exist for the Department to deny Mr. Sullivan’s application. However, Mr. Sullivan has demonstrated that he has the character and qualifications to hold an insurance agent’s license in this state. Therefore, the Administrative Law Judge concludes that Mr. Sullivan has met his burden to prove that the Department’s denial of his application should be reversed. RECOMMENDED ORDER Based on the foregoing, including but not limited to the nature of Mr. Sullivan’s offense, his accomplishments since his discharge from probation, the amount of time that has elapsed since the commission of Mr. Sullivan’s crime, and Mr. Sullivan’s demonstrated commitment towards maintaining his sobriety, the Administrative Law Judge recommends that the Department’s decision to deny Mr. Sullivan’s April 2, 2001 application for a life and disability insurance agent’s license be reversed, and that the Director of the Department exercise his discretion favorably and issue a life and disability insurance agent’s license to Mr. Sullivan.

Done this day, July 12, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ -----------------------

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