ALJDEC - Licensing

23A-093-INS · Department of Insurance and Financial Institutions - Insurance · 2024-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

TINOAH A. BRAGG

No. 23A-093-INS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 13, 2024

APPEARANCES: Assistant Attorney General James Rolstead appeared on behalf of Arizona Department of Insurance and Financial Institutions. Tinoah Bragg appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibits 1 through 7 were admitted. Petitioner’s Exhibits A and B were admitted.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Department.

FINDINGS OF FACT

On September 14, 2023, Tinoah Bragg (Petitioner) submitted an application for an Arizona resident insurance producer license through the National Insurance Producer Registry (License Application) to the Department of Insurance and Financial Institutions (Department).

In the License Application, under Background questions, Petitioner answered “Yes” to Question 1B, which asks, “Have you ever been convicted of a felony, had a judgment withheld or deferred, or are you currently charged with committing a felony?”

On March 31, 2014 in the United States District Court for the Eastern District of Washington, Petitioner pleaded guilty to: Count 2 of the Indictment, CONSPIRACY TO DISTRIBUTE A MIXTURE OR SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF OXYCODONE HYDROCHLORIDE, AN OPIATE AND SCHEDULE II CONTROLLED SUBSTANCE, a felony offense, committed between 2008 and 2013 (Felony).

On December 17, 2014, the Court sentenced Petitioner to one year and a day in prison followed by three years of probation upon release.

Pursuant to the Department’s request, Petitioner subsequently filed an Arizona Application for Consent to Engage in the Business of Insurance under 18 USC §1033 (Application for Consent).

In the Application for Consent, Petitioner disclosed the Felony and requested a waiver to engage in insurance business under 18 USC §1033.

On November 21, 2023, the Department sent a letter to Petitioner denying her License Application pursuant to Ariz. Rev. Stat. § 20-295(A)(6).

On November 22, 2023, the Department sent a letter to Petitioner denying her request for a waiver to engage in insurance business under 18 USC §1033.

On December 17, 2023, Petitioner appealed the denial of the License Application and Application for Consent.

On January 9, 2024, the Department issued a Notice of Hearing to Petitioner, setting a hearing for February 13, 2024.

Aqueelah Currie, Licensing Supervisor, testified that the Department has a mandate to protect the public, and an Application for Consent is generally denied when the Department has a concern there has been a breach of trust or dishonesty. Ms. Currie further testified that it is not mandatory to deny an application that contains a felony, but rather it is discretionary. Ms. Currie further testified that, generally, when an application for a waiver to engage in insurance business under 18 USC §1033 is received, it is sent to the legal team that then reviews and makes a determination on whether to approve or deny the request.

In this case, Petitioner’s License Application was received and assigned to a “reviewer.” The reviewer verified that additional documents were uploaded pursuant to Petitioner’s Felony disclosure. Ms. Currie testified that because the reviewer was unable to approve the License Application due to the Felony disclosure, the reviewer requested that Petitioner apply for a waiver to engage in insurance business under 18 USC §1033. That Application for Consent was subsequently denied.

Ms. Currie testified that, because the Application for Consent was denied, even if she approved the License Application, Petitioner would still be unable to conduct insurance business in the State of Arizona; therefore, Petitioner’s License Application was denied.

Petitioner called four character witnesses on her behalf: LeNai Bellamy, Sara Guerrero, Victor Martinez, and Lewis Damper.

LeNai Bellamy, friend and owner of an insurance brokerage firm, testified that he had known Petitioner for approximately 8 or 9 months and that Petitioner had always been truthful and upfront about her past. He further testified that, in the insurance industry, there was a lot of dishonesty, but that Petitioner truly care about people and her community. Mr. Bellamy referred to Petitioner on multiple occasions as a “crusader” and testified that Petitioner was eager to thrive, get better, teach and help others. He testified that there was no lack of trust with Petitioner.

Sara Guerrero, friend and co-owner of an insurance brokerage firm, testified that Petitioner had a passion for insurance and that Petitioner was “second to none” when it came to character.

Victor Martinez, a friend of Petitioner, testified that Petitioner had a passion to make sure the community was properly protected and even offered to volunteer at the insurance brokerage office in order to help.

Lewis Damper, Petitioner’s significant other, testified regarding Petitioner’s determination, dedication, honesty and integrity.

Finally, Petitioner testified on her own behalf. Petitioner testified that her Felony came from a time when she was a young, single mother trying to provide for her child. She was young and impressionable and she made a mistake. She understood her mistake, owned her mistake, and had paid her debt and had worked relentlessly to change. She testified that going to prison was scary, but coming out of prison was even scarier because she was not sure how to navigate it after the Felony. She further testified that she had been lucky to be able to excel. She recently received a promotion at her job and received employee of the month.

Petitioner testified that her passion for insurance began when her parents died, one with life insurance and one without. She saw the difference and impact having life insurance made versus being without. She testified that her father’s funeral was held by Zoom due to not being able to financially afford other arrangements and she did not want that for others. Lastly, she testified that she wanted to have a chance to have a greater impact on the community.

CONCLUSIONS OF LAW

The Department was created and enabled by the State of Arizona to administer enumerated State laws by protecting the public interest through licensure and regulation of the consumer lender profession.

The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. § 41-1092 et seq.

Pursuant to Ariz. Rev. Stat § 41-1092.07(G)(1), at a hearing on an agency's denial of a license or permit or a denial of an application, the applicant has the burden of persuasion.

Ariz. Admin. Code. R2-19-119(B)(1) places the burden of proof on the party asserting a claim, right or entitlement.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Here, the material facts are not in dispute.

Furthermore, the Tribunal has no jurisdiction over Petitioner’s Application for Consent under 18 USC §1033.

The only issue to be decided is whether Petitioner’s License Application was properly denied. The Director of the Department has discretion to approve or deny a License Application based on having been convicted of a felony.

The Tribunal commends Petitioner for the life changes she has made, for taking accountability for her prior actions, and for continuing to excel in all of her endeavors.

The Tribunal finds that Petitioner was honest and forthcoming in disclosing her Felony and providing all of the supporting documentation. The Tribunal also takes notice that the conviction date was almost a decade ago.

Notwithstanding, the Tribunal has no jurisdiction over Petitioner’s Application for Consent or its subsequent denial. Without this waiver pursuant to 18 USC §1033, Petitioner is unable to conduct any insurance business in the state, even if a license were granted.

Because the Department has discretion when reviewing applications, the evidence establishes that Petitioner has not met her burden of proof in this case.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department’s denial of Petitioner’s application for an Arizona insurance license be affirmed.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, March 4, 2024.

/s/ Amy M. Haley

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Barbara D. Richardson,

Department of Insurance and Financial Institutions - Insurance

James Rolstead

Attorney General's Office

[email redacted]

Tinoah Bragg

[email redacted]

By: OAH Staff