ALJDEC decisions subject to certification as final

12A-120-INS · Department of Insurance · 2013-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 10, 2012 APPEARANCES: No one appeared for Respondents; Assistant Attorney General Alyse Meislik appeared for the Department of Insurance ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT On October 18, 2012, the Arizona Department of Insurance (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. December 10, 2012, at the Office of Administrative Hearings. No representative appeared for either Respondent Tyson Heath Fine or Respondent Fine Retirement Services, LLC and the matter was convened in their absence at about 1:20 p.m.[1] The Department presented the testimony of its investigator Randy Markham. Mr. Fine holds license No. 105369 and Fine Retirement Services, LLC holds license No. 877970, both of which were issued by the Department. Mr. Fine’s license expired on October 31, 2012. Fine Retirement Services, LLC’s license is due to expire on November 30, 2014. Mr. Fine is the sole officer and member of Fine Retirement Services, LLC and he is its Designated Responsible Licensed Producer. Mr. Fine accepted $21,000 from a client with the understanding that the money would be invested for the client’s benefit. Mr. Fine did not invest the money, but rather used it for personal expenses. Based on his actions, on May 22, 2012, Mr. Fine pleaded guilty to, and was convicted of Theft of Property, a Class D Felony in the State of Tennessee. Mr. Fine was sentenced to two years in the Tennessee Department of Corrections, with the sentence suspended in favor of two years probation. On December 10, 2012, officials in Tennessee informed Mr. Markham that as of that date, Mr. Fine was in jail. Mr. Fine did not report to the Department that he had been subject to criminal prosecution. Mr. Fine’s address of record with the Department is 19357 North Madison Road in Maricopa Arizona, which is also the address of record for Fine Retirement Services, LLC. Mr. Markham mailed certified documents to Mr. Fine’s address of record, but these documents were returned as not deliverable. Mr. Fine’s Probation Order, dated May 22, 2012, shows his address as 195 Armstrong Ferry Road in Dayton Tennessee. Mr. Fine did not inform the Department that he had changed his residential or business addresses. The Department requests that Mr. Fine’s and Fine Retirement Services, LLC’s licenses be revoked. CONCLUSIONS OF LAW The Department bears the burden of persuasion. A.R.S. § 41-1092.07(G). The burden of proof at an administrative hearing falls to the party asserting a claim, right or entitlement. The standard of proof is that of the preponderance of the evidence. A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence 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). Mr. Fine was convicted of a felony, which is a violation of A.R.S. § 20- 295(A)(6). The facts underlying Mr. Fine’s felony conviction demonstrate that he used fraudulent or dishonest practices, demonstrating untrustworthiness in the conduct of business, which is a violation of A.R.S. § 20-295(A)(8). Mr. Fine’s failure to inform the Department that he was subject to criminal prosecution is a violation of A.R.S. § 20-301(B). Mr. Fine’s failure to inform the Department of a change in his business and residential addresses are violations of violation of A.R.S. § 20-286(C)(1). Based on Mr. Fine’s proven violations of A.R.S. § 20-295(A), the Department has the authority to revoke Mr. Fine’s license. A.R.S. § 20-295(H). Considering the nature of Mr. Fine’s violations, his license No. 105369 should be revoked. Based on Mr. Fine’s proven violations of A.R.S. § 20-295(A), the Department has the authority to revoke Fine Retirement Services, LLC’s license. A.R.S. § 20-295(B). Considering the nature of Mr. Fine’s violations and that there are no other members of Fine Retirement Services LLC, its license No. 877970 should be revoked. ORDER IT IS ORDERED that Tyson Heath Fine’s license No. 105369 is revoked; IT IS FURTHER ORDERED that Fine Retirement Services, LLC’s license No. 877970 is revoked. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be the date of that certification. Done this day, January 8, 2013.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Germaine L. Marks, Director Department of Insurance ----------------------- [1] Mr. Fine had been informed that he could appear by telephone provided that he called the Office of Administrative Hearings (“OAH”) at the scheduled hearing time. On December 17, 2012, Mr. Fine filed with the OAH a letter that the Administrative Law Judge (“ALJ”) construed as a Motion to Reopen the Record or, in the alternative, a Motion to Reconsider the November 21, 2012 Order Denying Continuance. In response to that Motion, the ALJ reopened the record in this matter for the limited purpose of allowing the Department enough time to respond to Mr. Fine’s Motion before the Administrative Law Judge Decision was due. On December 28, 2012, the Department filed its Response, in which it objected to reopening the record. In an Order dated December 31, 2012, the undersigned ALJ denied Mr. Fine’s Motion.

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