ALJDEC decisions subject to certification as final

21A-047-INS · Department of Insurance and Financial Institutions - Insurance · 2021-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

MARK RICHEY,

Petitioner.

No. 21A-047-INS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 24, 2021

APPEARANCES: Mark Richey (“Petitioner”) appeared on his own behalf. Assistant Attorney General Holly Wan, Esq., appeared on behalf of the Arizona Department of Insurance (“Department”).

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On April 14, 2021, Petitioner submitted an online application (Application) for an Arizona Resident Insurance Producer License with a line of authority in life insurance.

Petitioner answered “Yes” to Question #1B in the Background Questions section of the Application, which reads as follows:

1B) Have you ever been convicted of a felony, had a judgement withheld or deferred, or are you currently charged with committing a felony?

With the Application, Petitioner included a written statement of explanation regarding the matters and the circumstances of the last 30 years.

In 1992, Under a Plea Agreement, Petitioner plead guilty to and was convicted of Amended Counts I, II, and IV, ALL, of the charges for Attempted Molestation of a Child, All Class 3 felonies and Dangerous crimes against children in the second degree, in Maricopa County Superior Court, Case CR1991-008353. The crimes had been committed between the dates of December 5, 1988 and February 15, 1991.

As a result of the Plea Agreement, Petitioner was sentenced to one year in jail and was placed on lifetime probation in addition to being required to register as a sex offender.

After successfully completing multiple years of what Petitioner referred to as “life-changing” counseling, and on/with the recommendations of his probation officer and therapist, in July 2007, the Court granted Petitioner’s Motion to Terminate Lifetime Probation, with that record under seal.

By letter dated May 12, 2021, the Department notified Petitioner that his Application for licensure had been denied due to the felony conviction.

After the Department received an appeal from Petitioner regarding the denial, the Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing to determine whether grounds exist to deny Petitioner an Insurance Producer’s License.

At the hearing, Licensing Supervisor A. Currie testified regarding her review of the Application and related documents.

Petitioner did not dispute the presented records and evidence.

Petitioner acknowledged responsibility and was remorseful about his past actions and the conviction, testifying that these had been isolated incidents within his family and not incidents out among the public, and that he himself had come forward, been indicted, charged, and sentenced. Petitioner noted that his family has reunified and that in the past 30 years he has had no offenses of any kind, “not even a traffic ticket.”

Petitioner was employed by “Room Store” for 23 years, rising to become a manager for 15 years, and being in positions of trust to hire and manage employees with the employer having been aware of his past. Petitioner indicated that he “sometimes” did have to go into customers’ homes. Petitioner testified that he will be working for AFLAC, which he stated would be business to business interactions.

Petitioner argued that he has redeemed himself through years of counseling (successfully completed) and has, therewith, demonstrated to the State of Arizona that he was trustworthy to have his civil/gun rights restored and his lifetime probation terminated, now 14 years ago.

At hearing, Petitioner noted that there was a new “Second Chance” law for felons and that he believed the Department has the authority to give him a chance in this new career opportunity.

The Department acknowledged the remoteness of the convictions but remained concerned regarding the serious nature of Petitioner’s conviction, and was concerned that an insurance producer’s licensure even for AFLAC might involve being in other people’s homes in the future. The Department posited that Petitioner had not demonstrated sufficient evidence to overcome its concerns.

CONCLUSIONS OF LAW

This matter lies with the Department’s jurisdiction and was properly brought before OAH for adjudication.

Petitioner bears the burden of proof to establish that he is rehabilitated and qualified to receive an insurance license. The standard of proof on all issues in this matter is that of a preponderance of the evidence.

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).

Ariz. Rev. Stat. § 20-285(B)(2) provides that “[b]efore the director approves the application of the individual, the director shall find that the individual has not committed any act that is a ground for denial, suspension or revocation prescribed in § 20-295.”

Ariz. Rev. Stat. § 20-285(E)(1) provides that “[b]efore the director grants a license, the director may require the applicant to provide any document that is reasonably necessary to verify the information that is contained in an application and other information including prior criminal records.”

Ariz. Rev. Stat. § 20-295(A)(6) provides, in pertinent part, that the director may deny an insurance producer's license to an applicant that has been convicted of a felony.

Ariz. Rev. Stat. § 13-905, Setting aside judgment of convicted person, application, release from disabilities, certificate of second chance, firearm possession, exceptions became effective August 27, 2021. While the law provides that persons convicted of Class 3 felonies for which five years have elapsed since fulfilling probation or sentences are eligible, the law also excepts from “set aside” and eligibility for a Certificate of Second Chance certain specified convictions including convictions requiring the person to register as a sexual offender. See Ariz. Rev. Stat. § 13-905(N).

At hearing, it was undisputed that Petitioner came forward in 1991 as to his actions to take responsibility for his actions; thereafter, he executed a Plea Agreement, again, taking responsibility for his actions.

The hearing record demonstrates that Petitioner has a felony conviction on his record from 1992, the one year jail sentence (with work furlough) of which was completed without incident in 1993 and the “lifetime probation” sentence for which was terminated in 2007, over 14 years ago. The hearing record demonstrates the existence of a 23-year employment record with one company for which Petitioner was given high levels of management involving the need for trust and accountability to the company. The undisputed hearing record demonstrates 30 years of Petitioner being law-abiding with no criminal offenses or even traffic tickets.

Based on the hearing record, the Administrative Law Judge concludes that the Department’s denial of licensure should be reversed because Petitioner has demonstrated that he was, and can be, trusted in employment dealing with the general public and that he has been a law-abiding citizen for over 30 years since his conviction. The Administrative Law Judge recommends that Petitioner be granted licensure at this time.

RECOMMENDED ORDER

IT IS ORDERED that the Department’s denial of Appellant’s Application be reversed and Petitioner’s appeal be granted.

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 (5) days from the date of that certification.

Done this day, October 14, 2021.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Evan G. Daniels

Department of Insurance and Financial Institutions