ALJDEC decisions subject to certification as final

18A-063-INS · Department of Insurance · 2018-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2018 APPEARANCES: Assistant Attorney General Deian Ousounov appeared on behalf of the Arizona Department of Insurance. Respondent Alfonso Miguel Avita did not appear. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT On October 11, 2018, the Arizona Department of Insurance (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on December 6, 2018. No representative for Respondent Alfonso Miguel Avita appeared at the scheduled time and the matter was convened in his absence at about 1:20 p.m. On or about July 3, 2017, Respondent submitted to the Department an application for a license as a resident insurance producer with a line of authority in life insurance. With the application, Respondent included a copy of his fingerprints. The Department issued to Respondent License No. 18462470, which is scheduled to expire on May 31, 2021. The Department forwarded Respondent’s fingerprints the Arizona Department of Public Safety (“DPS”) for a criminal records background check. Respondent’s fingerprints were not of sufficient quality for use in conducting the background check. An applicant who submits illegible fingerprints is considered by the Department to have submitted an incomplete application. In a letter dated November 6, 2017, the Department informed Respondent that on or before November 30, 2017, he was required to submit to the Department a replacement set of fingerprints. The November 6, 2017 letter was mailed to Respondent’s business address. The Department did not receive from Respondent any response to its November 6, 2017 letter. The November 6, 2017 letter was not returned to the Department as undeliverable. In a letter dated March 2, 2018, the Department informed Respondent that it was preparing to initiate an administrative action against his license because he had failed to submit a full set of fingerprints. The Department’s March 2, 2018 letter also informed Respondent that on or before March 30, 2018, he was required to submit the replacement set of fingerprints by, or in the alternative, he could surrender his license. The March 2, 2018 letter was mailed to Respondent’s residential address. On or about March 9, 2018, the March 2, 2018 letter was returned to the Department as undeliverable. See Exhibit 3. Respondent did not submit a replacement set of fingerprints and he did not surrendered his license. The Department requested that Respondent’s license be revoked. CONCLUSIONS OF LAW The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(2). The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014). With his application, Respondent was required to submit to the Department a complete set of fingerprints. Respondent’s submission of fingerprints did not satisfy this requirement because the quality was not sufficient for DPS’s use in conducting the required background check. See Ariz. Rev. Stat. § 20-285(E)(2). Because Respondent did not submit fingerprints of sufficient quality, his application is incomplete, which is a violation of Ariz. Rev. Stat. section 20-295(A)(1). Respondent’s conduct constitutes a violation of Ariz. Rev. Stat., Title 20, which provides grounds for the Director of the Department to revoke Respondent’s license. Ariz. Rev. Stat. § 20-295(A)(2). RECOMMENDED ORDER IT IS ORDERED that Respondent Alfonso Miguel Avita’s License No. 18462470 is revoked. Done this day, December 6, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Keith A. Schraad, Interim Director Arizona Department of Insurance

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826