ALJDEC

98A-185-INS · Department of Insurance · 1999-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 1, 1999, a hearing was scheduled regarding the Petitioner’s appeal of the Department’s denial of the Petitioner’s application for a Property & Casualty Insurance Agent’s license. Shortly before this hearing, the undersigned Administrative Law Judge received an unsigned fax from the Petitioner asking for a telephonic hearing “due to travel.” The Office of the Attorney General did not receive a copy of this fax from the Petitioner. The undersigned Administrative Law Judge denies the Petitioner’s request for a telephonic hearing because (1) the Petitioner’s request was not timely filed; (2) the Petitioner’s request is unsigned; (3) the Assistant Attorney General did not have the opportunity to object to the Petitioner’s request; (4) the Petitioner failed to adequately explain why a telephonic hearing was necessary; and (5) the Petitioner failed to contact the Office of Administrative Hearings on the morning of this hearing to make the appropriate arrangements to appear telephonically.

On April 1, 1999, Assistant Attorney General Shelby L. Cuevas appeared on behalf of the Arizona Department of Insurance (the “Department”). The Petitioner failed to appear for the hearing scheduled in this matter. The record was kept open until approximately 9:40 a.m. to allow for the appearance of the Petitioner or the receipt of any information which would constitute good cause for the Petitioner’s absence or delay. No such information was received from or on the behalf of the Petitioner. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. The Petitioner failed to appear for the hearing scheduled on April 1, 1999, at 9:00 a.m. at the Office of Administrative Hearings located at 1400 West Washington Street, Suite 101, Phoenix, Arizona. This hearing was previously continued twice at the request of the Petitioner. The undersigned Administrative Law Judge finds that the Petitioner had proper notice of this hearing.

2. On or about July 16, 1990, the Commissioner of Insurance for the State of Wisconsin ordered that the Petitioner’s permanent insurance intermediary agent’s license be suspended for a period of six months for a violation of Wis. Stat. §628.34(1) involving misrepresentation to his former clients.

CONCLUSIONS OF LAW

1. The Petitioner has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Petitioner has failed to appear and present evidence supporting his position. The Petitioner has failed to carry the burden of proving that he meets the necessary qualifications to hold a Property & Casualty Insurance Agent’s license.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Petitioner has a record of dishonesty in business or financial matters pursuant to A.R.S. §20- 290(B)(2).

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence reveals that the Petitioner has a record of conduct under an insurance license issued in the State of Wisconsin showing the Petitioner to be incompetent or a source of injury and loss to the public or any insurer pursuant to A.R.S. §20-290(B)(4).

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Petitioner has a record of suspension of an insurance license issued in the State of Wisconsin pursuant to A.R.S. §20-290(B)(5).

6. The undersigned Administrative Law Judge concludes that sufficient grounds exist for the Department to deny the Petitioner’s application for a Property & Casualty Insurance Agent’s license.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Petitioner’s appeal be denied. The Department’s denial of the Petitioner’s application for a Property & Casualty Insurance Agent’s license should be upheld.

Done this day, April 1, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Mr. Charles R. Cohen Department of Insurance ATTN: Curvey Burton 2910 North 44th Street, Ste. 210 Phoenix, AZ 85018

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826