ALJDEC decisions subject to certification as final
22A-029-INS · Department of Insurance and Financial Institutions - Insurance · 2023-01-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
Adrian Manns
(National Producer License No. 15760350)
Respondent.
No. 22A-029-INS
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 19, 2022
APPEARANCES: Respondent Adrian Manns appeared on behalf of himself. Assistant Attorney General James Rolstead appeared on behalf of the Arizona Department of Insurance and Financial Institutions (Department).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. In 2010, the Department issued to Respondent an Arizona resident insurance producer license with lines of authority in life insurance, and accident and health or sickness insurance. The license is scheduled to expire on February 28, 2026.
2. On May 10, 2010, Respondent’s business and mailing address of record with the Department was 8016 South 5th Lane, Phoenix, AZ 85041-8115. Respondent’s e-mail address of record is [email redacted].
3. Respondent is licensed as a non-resident producer in the states of California, Florida, Illinois, Indiana, Oregon, New York and Texas.
4. On November 11, 2021, Ellen Davis submitted a complaint to the Department alleging that Respondent enrolled her and her husband, Ross "Lawrence" Davis, (the Davises), in a Humana Medicare Advantage Plan for the plan year 2022 (2022 Plan) without their consent.
5. The Department notified Humana Insurance Company (Humana) of the complaint and requested records related to the Davises' Medicare Advantage enrollments by Respondent.
6. Humana's response included a narrative statement and copies of the Davises’ enrollment forms and policy applications. Humana also provided statements they obtained from Respondent during their internal investigation of the Davis complaint.
7. Humana stated that their "Agent Investigation Unit determined that the allegation [Davis complaint] is unfounded." See Exhibit 4. Human also stated,
“Mr. Lawrence Davis and Mrs. Davis Ellen Davis were enrolled in the Humana Gold Plus HMO for the 2022 plan year... This plan has been cancelled.” See id.
8. Mrs. Davis told the Department in a phone call that no one from Humana contacted her to inquire about her complaint.
9. In an email that Respondent sent to Humana on November 30, 2021 (November 30th Email), Respondent stated:
"I initiated a call to existing member Ellen Davis on 10/22/21 at 8am . . . During this call we [set] an in home appointment same day at 9am. At the in home appointment, I shared and explained to both Ellen Davis and Lawrence Davis the Enrollment Kit & Summary of Benefits for the Gold Plus 2022 ... With both Ellen Davis and Lawrence Davis concurrence, I presented the Scope of Appointments and proceeded with the electric enrollment application .... [In] fact Ellen mentioned she was moving out of state due to aging and family illness. I gave her options on her Medicare advantage plan should she move."
10. On December 17, 2021, the Department sent Respondent an email requesting a response to the Davises' complaint and a copy of his agency file relating to the sale of the 2022 Plan.
11. Respondent responded the same day with the identical statement he submitted to Humana in his November 30th Email.
12. On December 20, 2021, Respondent sent the Department the Davises' enrollment forms for the 2022 Plan. The Davises provided the Department with copies of text and email messages from Respondent that appear to contradict statements he made in his December 17, 2021 email response to the Department. The email messages included the following:
10/22/2021 at 10:17 a.m.: Mr. Davis wrote, inter alia, to Respondent, "Adrian, We have moved to Oklahoma to be near our son and his family. An opportunity to find a home blocks from him came up and we made a hasty move. Thank you for your excellent service while we were in Arizona.....”
10/22/2021 at 12:35 p.m.: Respondent wrote, inter alia, to the Davises, "That' is excellent ... Humana is in Oklahoma and in fact I can still be your agent there. Did you look into plans already no worries if u have?"
13. On October 22, 2021, Respondent wrote to the Davises:
I had already [updated]". See Exhibit 7.
14. On October 23, 2021, Mrs. Davis wrote to Respondent:
Humana here is not as good as Az. More inner city and far from our location. Our other alternative is just minutes away with better facilities.
15. On October 23, 2021, Respondent wrote, inter alia, to the Davises:
Sounds good. Please contact Humana disenrollment when u can . . . and have the AZ Medicare Advantage Plan canceled effective 01/01/2022. I wish I have known I wouldn't have put in the system. My apologies for the inconvenience now.
16. Upon reviewing the separate Humana enrollment forms the Davises, the Department observed the following:
Page one of each form contained a "Decision Maker" section that asks, "Please tell us who is completing your enrollment form." The radio button selected for each form indicates, "I'm completing my enrollment form on my own."
Page three of each form confirmed the Davises' address as 25061 W. Vista Norte St., Buckeye, AZ 85326.
Page seven of each form listed Respondent as the Licensed Sales Writing Agent.
Page eight of each form asks the following questions: (1) "Where did you hear about us?" and (2) "Where did this enrollment form happen?" The answers provided to both questions were "In-Home."
Page 13 of each form is the signature page. Mrs. Davis's form reflects her signature on I0/22/2021 at 09:31:32 AM (MST). Mr. Davis's form reflects his signature on 10/22/2021 at 9:36:08 AM (MST).
The policy applications for the Davises provided by Humana reflect "Digital Signature" as the signature type for Mr. and Mrs. Davis.
17. The Maricopa County Recorder's website shows the Davises sold their home at 25061 W. Vista Norte St., Buckeye, AZ 85326 on September 20, 2021. See Exhibit 10.
18. The Warranty Deed reflects their new address in Tulsa, Oklahoma. See Exhibit 10.
19. Tulsa County Assessor records show the Davises purchased a home in Tulsa, Oklahoma on September 28, 2021. See Exhibit 11.
20. Mrs. Davis provided a copy of a bill issued to her from AT&T on October 11, 2021 with her Tulsa, OK address listed at the top. See Exhibit 12.
21. Mrs. Davis told the Department that she and Mr. Davis did not rent out or lease back their Buckeye home pending their move to Tulsa.
22. On February 9, 2022, the Department emailed a subpoena to Respondent requiring that he appear for an Examination Under Oath (Examination) on February 24, 2022.
23. Respondent responded the following day that he was out-of-country and
requested a continuance.
24. On February 10, 2022, the Department sent Respondent an email stating the Examination would be rescheduled to early April and asked he required another subpoena or if he was willing to appear voluntarily.
25. Respondent responded the following day that he would appear voluntarily. 26. On February 11, 2022, the Department sent Respondent an email
rescheduling the Examination to April 7, 2022.
27. On March 8, 2022, attorney Colin Bell emailed the Department his Notice of Representation of Respondent and requested a copy of the complaint, supporting documents and all investigative materials.
28. On March 9, 2022, the Department sent Mr. Bell a copy of the complaint but declined to release additional information from the case file while the investigation is pending.
29. The Department confirmed when the Examination was scheduled and asked if another subpoena was needed.
30. On March 18, 2022, Mr. Bell emailed the Department asking about the scope of the interview and if it would extend to matters outside of the complaint. The Department responded, "Only to the extent that Mr. Respondent answers a question that raises additional question(s) that may be outside the scope of the Davis complaint."
31. On March 29, 2022, Mr. Bell advised the Department that he has a hearing that conflicts with the Examination and asked to reschedule. He also stated, "Additionally, because this is an investigative interview, I'm curious if you've had the opportunity to speak with the complainants' son and Humana."
32. The Department responded that same day with availability for a new Examination date and advised that the investigation would be discussed with him and Respondent during the interview.
33. On April 1, 2022, Mr. Bell sent the Department an email stating he was available on April 14, 2022.
34. The Department responded that same day that the Examination would be scheduled for April 14, 2022.
35. On April 12, 2022, Mr. Bell sent the Department an email stating, "A matter has come up on Thursday from which I cannot extricate myself to be in attendance at the interview. My only availability after that is not until the week of April 25 - 29 ... I apologize for the inconvenience."
36. On April 22, 2022, the Department sent Mr. Bell an email stating the Examination was rescheduled to May 5, 2022.
37. On May 5, 2022, Mr. Bell sent the Department an email stating, "My client and I will not be attending the interview. Adrian and I have serious concerns about moving forward without seeing the Board's evidence. Adrian understands that this may result in the immediate suspension of his license, however, neither he or I are comfortable participating in an adversarial interview given the circumstances."
38. On April 10, 2022, the Department's investigator conducted a Google Search of "Adrian Respondent Insurance Agent Phoenix" that brought about a results page with a business profile information panel (the panel) showing images of Respondent as "The Medicare Pro . . . Insurance broker in Phoenix, Arizona" (The Medicare Pro).
39. The panel provided a link to The Medicare Pro website. Page eight of The Medicare Pro website provided the following statement: "Medicare Pro is a $0month Medicare Advantage plan with $0 copays for generic medications at independent pharmacies." Additional information for The Medicare Pro from the search results page included location (Camelback Colonnade) and address (1801 E. CamelbackRd., Ste. 102, #1046, Phoenix, AZ 85016). The address and location provided is a Staples store located in Camelback Colonnade. It appears the "1046" represents a personal mailbox number. This is not the mailing address of record for Respondent. 15 35. The Medicare Pro is not a licensed insurance producer (business entity) or a registered trade name (DBA) with the Department.
40. On August 15, 2022, the Department issued a Notice of Hearing and Complaint (Notice) to Respondent. The Notice provided that the issue set for determination was whether grounds exist to revoke Respondent’s insurance producer license.
41. At hearing, the Department presented the testimony of its Licensing Supervisor, Wendy Greenwood. Ms. Greenwood testified to the above stated facts. Respondent testified on behalf of himself and presented the testimony of Heyward Jackson and Christi Kannon.
42. Respondent denied that he signed the Davises names on the applications in Exhibit 8. Respondent stated that he mistakenly wrote that he conducted an In-home appointment with the Davises. Respondent stated that he met virtually with Mrs. Davis by text and phone on October 22, 2021. When asked on cross-examination whether he e-mailed an insurance application to Mrs. Davis, Respondent responded, “yes.” Respondent stated that Mrs. Davis was never enrolled in a Humana plan for 2022.
43. Mrs. Davis denied that she met with Respondent in her home on October 22, 2021. Mrs. Davis denied applying for Humana insurance on October 22, 2021.
Mrs. Davis denied that she and her husband signed the application in Exhibit 8.
Mrs. Davis stated that she notified Respondent on October 22, 2021 that she had moved to Oklahoma and wanted to cancel her insurance. Mrs. Davis enrolled in Community Care. Mrs. Davis received a letter from Community Care that she was enrolled in two insurance plans.
44. Based on the evidence presented at hearing, the Administrative Law Judge finds Respondent’s testimony that he did not sign the Davises names on the insurance applications to be unconvincing. It is undisputed that the Davises had moved to Oklahoma at the time that the insurance applications were signed and Respondent offered no other plausible explanation for the signatures found in Exhibit 8.
45. I find Mrs. Davis’s testimony to be credible.
CONCLUSIONS OF LAW
1. The Department bears the burden of persuasion. A.R.S. § 41-1092.07(G)(2).
2. The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
3. 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).
4. The preponderance of the evidence shows that Respondent failed to comply with a subpoena issued by the Director of the Department, which is a violation of A.R.S. § 20-295(A)(2).
5. The preponderance of the evidence shows that Respondent intentionally misrepresented the terms of an actual or proposed insurance contract or application for insurance, which is a violation of A.R.S. § 20-295(A)(5).
6. The preponderance of the evidence shows that Respondent used dishonest practices in the conduct of business in the State of Arizona or elsewhere, which is a violation of A.R.S. § 20-295(A)(8).
7. The preponderance of the evidence shows that Respondent forged another's name to documents related to an insurance transaction, which is a violation of A.R.S. § 20-295(A)(10).
8. The preponderance of the evidence shows that Respondent violated A.R.S. § 20-443(A)(1).
9. 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. See A.R.S. § 20-295(A).
RECOMMENDED ORDER
IT IS ORDERED that Respondent Adrian Mann’s License No. 15760350 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 is five days after the date of that certification.
Done this day, January 9, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Evan G. Daniels
Arizona Department of Insurance and Financial Institutions
100 North 15th Avenue, Suite 261
Phoenix, AZ 85007-2630
[email redacted]
[email redacted]
Adrian Manns
8016 S. 5th Lane
Phoenix, AZ 85041
[email redacted]
James Rolstead
Attorney General's Office
2005 N. Central Ave.
Phoenix, AZ 85004
[email redacted]
By Miranda Alvarez
Legal Secretary