ALJDEC

98A-180-INS · Department of Insurance · 1998-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 1998 APPEARANCES: Jesus R. Higuera appeared on his own behalf; Assistant Attorney General Michael J. De La Cruz appeared on behalf of the Arizona Department of Insurance ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

1. On October 1, 1998, Jesus R. Higuera ("Mr. Higuera") filed an application for a life and disability insurance agent's license (the "Application") with the Arizona Department of Insurance (“Department”). 2. In the Application, Mr. Higuera disclosed that he had been convicted of a felony. 3. On March 26, 1991, Mr. Higuera entered into a plea agreement in State of Arizona v. Jesus R. "Chuy" Higuera, Maricopa County Superior Court, Case No. CR9I-00997 ("Case No. CR91-00997") wherein he pleaded guilty to Count 42, Bribery of a Public Servant, a Class 4 Felony, in violation of A.R.S. §§ 13-2601, 13-2602(A)(2)(B)(C), 13-2604, 13-301, 13- 302, 13-303, 13-701, 13-702, 13-812, 13-2301, 13-2313 and 13-2314. As part of the plea agreement, Mr. Higuera agreed to pay restitution in the amount of $4,040.00 to be paid at or prior to sentencing. 4. On May 8, 1991, the Maricopa County Superior Court entered a Judgment in Case No. CR91-00997, convicting Mr. Higuera of one count of Bribery of a Public Servant, a Class 4 Felony, a nondangerous and nonrepetitive offense in violation of A.R.S. §§13-2602(A)(2)(B)(C), 13- 2604, 13-301, 13-302, 13-303, 13-701, 13-702, 13-812, 13-2301, 13-2313 and 13-2314, committed on September 18, 1990. The Court suspended imposition of sentence and placed Mr. Higuera on unsupervised probation for a period of 4 years and ordered that Mr. Higuera be incarcerated for a period of 2 months. The Court further ordered that Mr. Higuera complete 640 total hours in the Work Furlough Program. 5. On May 16, 1995, the Court entered an order discharging Mr. Higuera from probation in Case No. CR91-00997. 6. On October 9, 1998, the Department denied the Application. 7. On October 27, 1998, the Department received Mr. Higuera's request for an administrative hearing on the denial of the Application. 8. The evidence of record established that prior to the conviction, Mr. Higuera was a state senator for District 10 in Tucson, Arizona. 9. In mitigation, Mr. Higuera presented credible evidence that he completed probation, paid restitution at time of sentencing in Case No. CR91-00997 and has been gainfully employed in various fields since his release from jail. Mr. Higuera also established that he is active in the community where he resides and performs volunteer work. Mr. Higuera represented during the hearing that the underlying acts relating to the above-mentioned criminal conviction was the result of poor judgment on his part and that he was remorseful for such conduct. 10. Mr. Higuera currently works as an administrative assistant for a New York Life insurance agent and, if his license application is approved, intends to work as an insurance agent for New York Life Insurance selling life and disability policies in the Tucson community and, more specifically, in the area in which he previously served as a state senator.

11. Mr. Higuera established through his testimony that he has paid his debt to society for the above-mentioned criminal conviction and has successfully rehabilitated himself so as to be a productive member of society with an opportunity to rise above his past. 12. In support of Mr. Higuera’s contention that he is of good moral character, Mr. Higuera submitted into evidence several letters of character including one from State Senator Victor E. Soltero who succeeded Mr. Higuera as senator for District 10. Those letters were given little weight because the individuals who authored them were not present at the hearing and not subject to cross-examination by the Department’s counsel. 13. Mr. Higuera was a sincere and credible witness and the Department did not present credible evidence to refute Mr. Higuera’s testimony as set forth above. 14. Mr. Higuera demonstrated that he is now of good moral character and is qualified to hold an insurance agent license. . . . CONCLUSIONS OF LAW 1. Mr. Higuera has a record of dishonesty in business or financial matters within the meaning of A.R.S. §20-290(B) (2). 2. Mr. Higuera has a record of conviction by final judgment of a felony involving moral turpitude, in violation of A.R.S. §20-290(B) (6). 3. The Director of the Department has discretion to grant or deny Mr. Higuera an insurance agent's license, pursuant to A.R.S. §§20-290(B)(2) and (B)(6). 4. Notwithstanding Mr. Higuera’s prior criminal conviction and record of dishonesty in business or financial matters as set forth above, he sustained his burden of proving that he possesses the requisite qualifications to be licensed by the Department as a life and disability insurance agent. RECOMMENDED ORDER Under the particular facts and circumstances of this case and the evidence presented, including but not limited to the duration of time that has elapsed since the criminal act occurred, the duration of time since probation was successfully completed, Mr. Higuera’s remorse over having committed the offense and Mr. Higuera’s employment history and involvement in his community since the offense, the Application shall be granted. Done this day, January 4, 1999.

_________________________________ LEWIS D. KOWAL Administrative Law Judge

Original transmitted by mail this ____ day of December, 1999, to:

Charles R. Cohen, Director Department of Insurance 2910 North 44th Street, Ste. 210 Phoenix, AZ 85018

ATTN: Curvey Burton

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826