ALJDEC - Licensing

24A-081-INS · Department of Insurance and Financial Institutions - Insurance · 2024-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Barry Harris,

National Producer No. 15501557,

Petitioner.

No. 24A-081-INS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2024

APPEARANCES: Barry Harris failed to appear. Assistant Attorney General Raya Gardner represented the Arizona Department of Insurance and Financial Institutions – Insurance.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Department Exhibits 1 through 7 and Notice of Hearing.

_____________________________________________________________________

FINDINGS OF FACT

On June 26, 2024, Barry Harris (Petitioner) submitted a renewal application (Application) to the Arizona Department of Insurance and Financial Institutions (Department) through the National Insurance Producers Registry for renewal of his Arizona non-resident insurance producer license.

Petitioner swore to the following Attestation at the end of the Application, in pertinent part:

I hereby certify under penalty of perjury, all of the information submitted in this application and attachments is true and complete. I am aware that submitting false information or omitting pertinent or material information in connection with this application is ground for license revocation or denial of the license and may subject me to civil or criminal penalties.

Respondent answered “Yes” to Questions #1A and #1B of the Background Questions section of the Application, which ask:

1A) Have you been convicted of a misdemeanor, had a judgement withheld or deferred, or are you currently charged with committing a misdemeanor, which has not been previously reported to this insurance department? ...

1B) Have you been convicted of a felony, had a judgment withheld or deferred, or are you currently charged with committing a felony, which has not been previously reported to this insurance department? ...

With the Application, Petitioner provided a “Statement or Facts” and a court record which provided some information regarding a 2003 arrest and conviction.

On July 1, 2024, the Department notified Petitioner at his address of record that further information was required from him. The letter indicated that the information he had uploaded was “insufficient” and that the Department needed official court documents which would clearly show not only the initial charges and the convictions but also the final dispositions of the cases. The letter provided specific parameters for the requisite documents.

The letter indicated that an applicant only had sixty (60) days from the date of the Application submission to make any corrections to a deficient application. Finally, the letter further indicated that, pursuant to administrative rules, a failure to correct the deficiencies in the Application would result in a “withdrawal” of the Application and a relinquishment of the fees paid.

Petitioner failed to provide the requisite information to correct the deficiencies in the Application within 60 days of the Application submission.

On September 4, 2024, the Department notified Petitioner at his address of record that the Application was deemed withdrawn due to his failure to have responded within the statutory time period, and that the Department would not take further action on the Application. The letter also indicated that, pursuant to statute, the Department was prohibited from refunding the submitted fees and, thus, the fees were forfeited.

On September 4, 2024, Petitioner emailed the Department requesting an appeal and indicating that he was unaware of the issue preventing his license from being processed.

On September 26, 2024, the Department issued a Notice of Hearing and Complaint setting an administrative hearing for November 1, 2024 at the Arizona Office of Administrative Hearings (OAH) regarding the Complaint.

On October 10, 2024, the Department filed its proposed exhibits with OAH and emailed a copy to Petitioner. On October 31, 2024, the Department supplemented its exhibits and emailed a copy to Petitioner.

At the time set for the administrative hearing, Petitioner failed to appear at OAH either in person, telephonically, or through any designated representative. Therefore, Respondent did not present any evidence with regard to an appeal.

At the time of the hearing, the Department requested that the matter be vacated due to Petitioner’s failure to appear and proceed with an appeal to present any evidence to refute or rebut the evidence presented by the Department.

CONCLUSIONS OF LAW

The Department was created and enabled to administer certain Arizona laws regarding the licensure and regulation of the insurance producer profession in Arizona pursuant to A.R.S. § 20-142 and §§ 20-281 et seq.

Pursuant to A.R.S. § 20-287, the Department is enabled to issue a nonresident insurance producer license to a person who is licensed in the person's home state to transact limited lines insurance. A nonresident licensee is subject to the Arizona insurance laws as though the licensee were licensed as a resident. Therefore, a nonresident licensee must comply with the existing application requirements.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. See A.A.C. R2-19-119.

In this case, Petitioner bears the burden of proof to demonstrate that the Department’s actions were either inappropriate or not in conformity with the applicable law and rules. Based on his failure to appear and present any evidence, Petitioner has failed to meet his burden to demonstrate that the Department actions were improper.

The Administrative Law Judge concludes that Department acted appropriately to issue a withdrawal of Petitioner’s Application and to retain the forfeited fees. See A.A.C. R20-6-708; see also A.R.S. § 20-167.

RECOMMENDED ORDER

IT IS ORDERED Petitioner’s appeal is denied and the Department’s determination is upheld on the effective date of the Order entered in this matter.

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, November 22, 2024.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Barbara D. Richardson,

Department of Insurance and Financial Institutions - Insurance

[email redacted]

Raya Gardner

Assistant Attorney General

[email redacted]

Barry Harris

[email redacted]

By: OAH Staff