ALJDEC decisions subject to certification as final

18A-139-INS · Department of Insurance · 2019-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 13, 2019. APPEARANCES: Assistant Attorney General Deian Ousounov represented the Arizona Department of Insurance (Department). Matthew John Mallen (Respondent) failed to appear. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________

FINDINGS OF FACT Respondent was licensed by the Department as a bail bond agent as of May 2010; his license expires on October 31, 2021. Respondent’s business and mailing addresses with the Department are the same: 6 East Palo Verde, Suite 3, Gilbert, Arizona 85296. On April 11, 2018, the Department summarily suspended Respondent’s license for unlicensed activity and violations of a Director’s subpoena. At the noticed hearing conducted on July 12, 2018, Respondent’s attorney appeared on behalf of Respondent, who did not appear to present any testimony. Following receipt of the Administrative Law Judge’s recommended decision,[1] the Director issued a Final Order on July 24, 2018, suspending Respondent’s license for a period of twelve months.[2] That Final Order required Respondent to submit his bail bond logs to the Department within days of the Final Order. On August 3, 2018, the Department issued three subpoenas to Respondent; the Department issued them by certified mail, on August 6, 2018, to Respondent’s business and residential addressed. The Department also mailed copies to Respondent’s business email address and to Respondent’s attorney of record. The mailed subpoenas (to the business and residential addresses) were returned by the postal service to the Department as unclaimed and unable to be forwarded. At no time did the Department receive the bail logs. The matter was not resolved informally and on January 28, 2018, the Department issued its Notice of Hearing with regard to the matter; it was sent to Respondent’s business and residential addresses. At the time of the noticed hearing, Respondent did not appear himself or through any other designated representative. The Department requested that Respondent’s license be revoked to protect the public interest regarding proper conducting of bail bond services. The Department argued that the lack of contact, lack of response to the subpoenas, and returned mail demonstrated that Respondent could not be regulated to protect the public. CONCLUSIONS OF LAW This matter lies within the Department’s jurisdiction.[3] The Department bears the burden of proof to establish cause to discipline Respondent’s bail bond agent’s license by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] The Department established that Respondent’s conduct, as described above, constituted violations of the applicable statues and rules, and orders and subpoenas of the Director, within the meaning of A.R.S. § 20-295(A)(2) as applied to bail bond agents under A.R.S. § 20-340.06. The Department established that Respondent’s conduct, as described above, most likely demonstrates failure to inform the Department of any change in residential, business, and e-mail addresses, within the meaning of A.R.S. § 20-286(C)(1) as applied to bail bond agents under A.R.S. § 20-340.06. Respondent’s conduct, as described above, provides grounds for the Director of the Department to suspend or revoke the license and to impose a civil penalty and/or order restitution, pursuant to A.R.S. § 20-295(A) and (F) as applied to bail bond agents pursuant to A.R.S. § 20-340.06. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director revoke Respondent Matthew John Mallen’s National Producer License No. 15767749. 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 five days from the date of that certification. Done this day, April 2, 2019.

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Keith A. Schraad, Director Arizona Department of Insurance

----------------------- [1] The Administrative Law Judge recommended upholding the summary suspension, a three-year provisional licensure and a requirement to submit the logs every quarter. In its Final Order, the Department rejected that recommended decision. [2] Respondent did not appeal the Final Order. [3] See A.R.S. § 20-340 et seq. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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