ALJDEC decisions subject to certification as final

13A-124-INS · Department of Insurance · 2013-12-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2013 APPEARANCES: Shane Willard Urry appeared personally. The Arizona Department of Insurance was represented by Assistant Attorney General Liane Kido. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. On or about August 8, 2013, Shane Willard Urry (“Petitioner”) submitted an Application for an Individual Insurance License (Form L- 169) (“Application”) to the Arizona Department of Insurance (“Department”). 2. Section V(A) of the Application asks the applicant the following question: ”Have you EVER had any professional, vocational, business license or certification refused, denied, suspended, revoked or restricted, OR been issued a consent order, and administrative action OR fine imposed by any public authority?” (Emphasis in the original). Petitioner answered “Yes” to the question. 3. Section V(C) of the Application asks the applicant the following question: Have you ever been found guilty of, have you had a judgment made against you for, or have you admitted to, any of the following: . . . 6. Using fraudulent, coercive or dishonest business practices including forgery with intent to defraud? 7. Conducting business in an incompetent, untrustworthy or financially irresponsible manner? . . . 9. Intentionally misrepresenting the terms of an actual or proposed insurance contract or application for insurance? (Emphasis in the original). Petitioner answered “Yes” to those questions. Petitioner signed the Application. 4. By letter dated September 12, 2013, the Department informed Petitioner that his Application for an insurance license was denied. The Department advised Petitioner of his appeal rights. 5. By letter dated October 1, 2013, Petitioner timely the Department’s denial of his Application. The Department forwarded the appeal to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The evidence of record established that Petitioner previously was the holder of accident/health and life insurance producer Arizona License No. 163748 issued by the Department. 7. On or about August 11, 2011, the Department filed a Consent Order between the Department and Petitioner in Docket No. 11A-103-INS against Arizona License No. 163748. 8. In the Consent Order, Petitioner admitted to submitting falsified premium information to Travelers Insurance Company for 112 auto and homeowner insurance policies between March 2010, and January 2011, resulting in $62,126.00[1] in underrated premiums. The Consent Order concluded that Petitioner violated the provisions of A.R.S. § 20- 295(A)(5) by “intentionally misrepresenting the terms of an actual or proposed insurance contract or application for insurance” and A.R.S. § 20-295(8) by “using fraudulent, coercive or dishonest practices, or demonstrating incompetence, untrustworthiness or financial irresponsibility in the conduct of business . . . .” 9. Petitioner consented to the revocation of Arizona License No. 163748 and to making restitution to Travelers Insurance Company in the amount of $62,126.00. 10. With the Application, Petitioner submitted evidence to the Department that he had made the required restitution. On March 14, 2012, Travelers Insurance Company acknowledged complete payment of $62,126.00 from Petitioner. 11. Brian Ventre testified on behalf of Petitioner. Mr. Ventre has known Petitioner for 13 years. Petitioner had worked for Mr. Ventre at Nationwide. Mr. Ventre stated that there was no question of Petitioner’s character. 12. David Jones also testified on behalf of Petitioner. Mr. Jones has known Petitioner for over 20 years. Mr. Jones stated that Petitioner has positive character. 13. Petitioner testified that the past few years have been a dark time for him. His reputation was affected by his past conduct. Petitioner’s reputation means the world to him. Petitioner was apologetic for his conduct. He would like to obtain licensure to continue the business he enjoyed. 14. Petitioner’s father, Lynn Urry, also testified. Mr. Urry sold insurance during his career. Mr. Urry acknowledged that Petitioner had made mistakes. Mr. Urry stated that Travelers Insurance Company benefited from Petitioner’s misconduct because the restitution paid by Petitioner was greater than what Mr. Urry believes was the value of Petitioner’s misconduct. 15. The Department’s Producer Licensing Administrator, Steve Fromholtz, testified that the Department had concerns about the period of time of Petitioner’s misconduct and the amount of money diverted by the misconduct. 16. Petitioner did not present any credible evidence of any rehabilitation since the Consent Order. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 41-1092.07(G)(1), Petitioner has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 2. Petitioner’s conduct resulting in the Consent Order constitutes a violation of A.R.S. § 20-295(A)(5).[2] 3. Petitioner’s conduct resulting in the Consent Order constitute a violation of A.R.S. § 20-295(A)(8).[3] 4. Petitioner’s conduct resulting in the Consent Order constitutes a violation of A.R.S. § 20-295(A)(9).[4] 5. Petitioner’s conduct resulting in the Consent Order constitutes a violation of A.R.S. § 20-295(A)(2).[5] 6. Pursuant to A.R.S. § 20-295(A), the Department’s Director may deny Petitioner’s application for licensure for the above-described violations. The evidence of record supports the Department’s denial of Petitioner’s Application for licensure. RECOMMENDED ORDER Based on the foregoing, it is recommended that Petitioner’s appeal in this matter be denied and that the Department’s denial of Petitioner’s Application for licensure be upheld and affirmed.

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 shall be five (5) days from the date of the certification.

Done this day, December 23, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Germaine L. Marks, Director Department of Insurance ----------------------- [1] At the hearing, Petitioner and his father testified that the actual dollar amount should be lower. However, Petitioner did acknowledge that he had agreed upon the stated value when he executed the Consent Order. [2] A.R.S. § 20-295(A)(5) provides as follows: “Intentionally misrepresenting the terms of an actual or proposed insurance contract or application for insurance.” [3] A.R.S. § 20-295(A)(8) provides as follows: “Using fraudulent, coercive or dishonest practices, or demonstrating incompetence, untrustworthiness or financial irresponsibility in the conduct of business in this state or elsewhere.” [4] A.R.S. § 20-295(A)(9) provides as follows: “Having an insurance producer license, or its equivalent, denied, suspended or revoked in any state, province, district or territory.” [5] A.R.S. § 20-295(A)(2) provides as follows: “Violating any provision of this title or any rule, subpoena or order of the director.”

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