ALJDEC

01A-248-INS · Department of Insurance · 2002-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 27, 2001. APPEARANCES: Alan Baskin, Esq., appeared on behalf of Respondent. Respondent was represented by Shelby Cuevas, Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, the Department of Insurance seeks to revoke the Respondent’s license due to his conviction in December, 2000, of a federal offense which, because of the penalty attached to the offense, amounts to a felony. The record in this matter was held open until January 4, 2002 to allow the parties an additional opportunity to brief issues as to which version of a particular license sanctioning statute should be applied to Respondent’s circumstance, whether the crime of which Respondent was convicted is a crime of moral turpitude, and whether in any event revocation is the appropriate sanction in this case or whether some lesser sanction should be imposed. Based on the evidence adduced at the hearing, as well as the post-hearing briefs submitted by the parties, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. At all times pertinent to this case, Respondent has been a licensed insurance agent in the state of Arizona. Respondent’s most recent renewal application was filed in 1999. 2. During 2000, Respondent was charged in the United States District Court of the District of Arizona with sexual exploitation of a minor in violation of 18 USC 2252 (a)(2). Respondent plead guilty to the violation on August 17, 2000 through a plea agreement. The plea agreement indicates, as a factual basis for the charge, that Respondent knowingly received a visual depiction involving the use of minors engaging in sexually explicit conduct. The plea agreement further indicates that between January 24, 2000 and March 8, 2000, Respondent corresponded with undercover postal employees in an attempt to purchase child pornography and that Respondent ultimately ordered a copy of a video tape containing such pornography. The tape was apparently delivered to Respondent on March 8, 2000, at which time he was arrested. 3. At the hearing, Respondent testified that, until the incident which resulted in his arrest and conviction, he had never ordered any such video tape nor had any interest in child pornography. Respondent further testified that his basis for ordering the tape stemmed from his relationship with a women whom he had been dating. The woman had been the victim of incest when she was a child. Respondent, who was already in counseling over issues stemming form Respondent’s earlier divorces, began including the woman in his counseling sessions in order to help the woman address her overcome emotional issues caused by the incest to which she had been subjected. In addition, Respondent and the woman began to read several professional publications on the emotional devastation caused to victims of incest. According to Respondent’s testimony, it was his desire to better understand incest that lead him to order the video which ultimately lead to his arrest and prosecution. 4. Respondent further testified at the hearing that as a result of the conviction, he was ordered to and successfully completed a six-month treatment program at a community confinement/treatment center where he resided form April, 2001 to October, 2001. He further stated that even before his conviction, he participated in treatment with Dr. Tom Selby. He presently remains in treatment , attending for two hours each week. He must continue to do so until he is advised by his probation officer and the federal district court that he is no longer required to do so. 5. In addition to those restrictions discussed in Paragraph 4, above, the terms and conditions of Respondent’s five year probation, which began on November 20, 2000, require that he:

1. participate in sex offender treatment and submit to risk assessment, 2. have no contact with children under the age of 18 years and report any unauthorized contact immediately to his probation officer, 3. not possess any form of pornography nor go into any location where pornography can be accessed, 4. Not engage in any occupation, business, or profession where there might be access to children without the prior approval of his probation officer, 5. Not possess or use a computer with access to the Internet or any on-line computer service without prior approval of the probation officer.

6. Also presented as evidence at the hearing were two letters, one prepared by Dennis L. Hunter, Ph.D., and the other by Tom Selby, Ph.D. Dr. Hunter indicates in his letter that Respondent does not fit the profile of a pedophile, finding that in fact Respondent fits the “opposite profile.” Dr. Carpenter goes on to submit that that in his “professional opinion, [Respondent] has no tendency whatsoever toward hurting children.” Dr. Carpenter also corroborates Respondent’s position that the tape was ordered only to allow Respondent “to better understand incest in the context of his relationship with [the woman he had been dating]. 7. Dr. Selby stated in his letter: Unlike most offenders in this program, Mr. Dirren’s history of involvement in deviant sexual themes does appear to be limited to a relatively short period of his life (less than 2 years) and was also limited to deviant pornography viewing and not extended into any actual pursuit of sexual contact with any minor. Interviews with both male and female minors with whom he lived at the time (both his own and his girlfriend’s children) indicated he had not made any sexual comments nor advances toward them or their friends. Physiological assessment of his sexual interests (Abel assessment in July, 2000) indicates he has normal adult heterosexual arousal patterns.

Dr. Selby goes on his letter to note that Respondent “does not appear to present a significant risk to the community at this time “ and that Respondent “appears genuine in his commitment to avoid becoming such a risk in the future.” 8. The undersigned finds the statements of both Dr. Hunter and Dr. Selby to be credible. Furthermore, Respondent’s testimony is found to be credible based not only on the supporting statements of Dr. Hunter and Dr. Selby, but also on Respondent’s self-motivated conduct of seeking therapy before any court ordered duty to do so was imposed upon him. 9. Respondent Department of Real Estate presented no evidence to counter any of Respondent’s evidence that he presented very little risk of harm to the community. The Department’s concern that it will not be able to monitor the Respondent in his future conduct to avoid situations where he might come into contact with children does not provide a compelling argument for revocation or suspension in this case. While the Department may not do so, the federal district court will, in fact, be monitoring Respondent very closely until at least November 20, 2005, the length of Respondent’s probation. His court ordered probation includes as an explicit term that he not have any contact with children. This probation period far exceeds the two year length of Respondent’s license renewal. CONCLUSIONS OF LAW 1. In this matter, 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. Respondent has been convicted of the offense of sexual exploitation of a minor in violation of 18 USC 2252 (a)(2). That statute provides that a person commits a felony offense where that person: knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct;

3. Respondent contends that the sanctioning statute which must be applied to this case is the statute which was in existence at the time that Respondent received his conviction, namely, A.R.S. §20-316(A)(6), which provided that the Department could only revoke, suspend or sanction a license where the applicant was convicted of a crime of moral turpitude. Respondent contends that the statute which replaced A.R.S. §20-295(A)(6) and became effective on October 1, 2001, and which provides that sanctions may be levied against a license where an applicant has been convicted of a felony, cannot be applied to Respondent’s case. The Department concedes that it was aware of the Respondent’s conviction before the October 1, 2001 effective date of the new legislation. Indeed, the Department does not argue that Respondent’s argument with regard to this issue is incorrect. Instead, the Department contends that no matter which statute is applied, the Department can meet its burden of proof. Based on the law presented by Respondent in his trial memorandum, the undersigned concludes that the former version of the sanctioning statute, A.R.S. 20-316 (A)(6), must be applied to this case and the Department must prove that the felony committed by Respondent was a felony involving moral turpitude. Cf, Aranda v. Industrial Commission, 198 Ariz. 467, 11 P.3d 1006 (2000)(statute requiring suspension of benefits to persons convicted of crime during their incarceration could not be applied to prisoner who was awarded and began to receive worker’s compensation award and was incarcerated prior to enactment of statute). 4. Respondent further contends that the instant crime is not a felony involving moral turpitude. The Department responds that the offense in question involves moral turpitude, as a crime of moral turpitude encompasses conduct which is “depraved or inherently base” or “adversely reflects on honesty, integrity, or personal values.” Department’s brief, page 3, citing Benitez v. Dunevant, 198 Ariz. 90, 3 P.3d 99 (2000). Under Arizona case law, it appears that the historical definition of moral turpitude has included conduct such as indecent exposure. See, e.g., City Court of the City of Tucson v. Lee, 16 Ariz. App. 449, 494 P.2d 54 (1972). See also, Black’s Law Dictionary (6th ed. 1990)(moral turpitude includes an “[a]ct or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished form others.” While the undersigned recognizes that the felony in question here involves the conduct of receiving through interstate commerce a video containing sexually explicit child pornography, as opposed to actually participating in lewd conduct, nevertheless the undersigned concludes that the conduct in question involves moral turpitude. Thus, the Department has established that Respondent violated A.R.S. § 20-316 (A)(6). 5. As explained in Findings of Fact Paragraph Nine above, given the serious restrictions imposed upon Respondent through his federal conviction, as well as Respondent’s uncontradicted evidence regarding the circumstances around the offense which lead to the conviction and the assessments of Dr. Hunter and Dr. Selby , imposition of revocation or a suspension is not merited in this case. Imposition of a substantial fine, however, for Respondent’s intentional violation of A.R.S. § 20-316(A)(6), is merited in the amount of the maximum for a single violation, $2,500.00.

. . . . . . RECOMMENDED DECISION Based on the foregoing, it is recommended that the director order that Respondent pay to the Department a civil penalty in the amount of $2,500.00, to be paid on or before the in effective date of the final order entered in this matter. Done this day, January 23, 2002

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002 to:

Department of Insurance Charles R. Cohen 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