ALJDEC

99A-235-INS · Department of Insurance · 1999-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 20, 1999 APPEARANCES: Robert Lee Wade on his own behalf; Assistant Attorney General Shelby Cuevas on behalf of the Arizona Department of Insurance ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On September 29, 1999, Robert Lee Wade (“Mr. Wade”) filed an application for a property and casualty insurance agent’s license (“Application”) with the Arizona Department of Insurance (“Department”). 2. In the Application, Mr. Wade disclosed that he had been convicted of a felony as more fully described below. 3. On January 26, 1994, the Maricopa County Superior Court issued an Indictment in State of Arizona v. Robert Lee Wade, Maricopa County Superior Court Case Number CR94-00676 (“Case No. CR94-00676”) charging Mr. Wade with Counts I and II: Sale of Marijuana, class 3 felonies, Count III: Possession of Marijuana for Sale, a class 2 felony, Count IV: Possession of a Dangerous Drug, a class 4 felony, and Count V: Possession of Drug Paraphernalia, a class 6 felony. 4. On April 28, 1994, Mr. Wade entered into a Plea Agreement in Case Number CR94-00676 wherein he pleaded guilty to Amended Count III: Possession of Marijuana for Sale, an amount less than 2 pounds, a class 4 felony, and Count IV: Possession of Dangerous Drugs, a class 4 felony. Counts I, II, and V of the Indictment were dismissed. 5. On May 26, 1994, the court, in Case No. CR94-00676, found Mr. Wade guilty of Amended Count III: Possession of Marijuana for Sale, a class 4 felony, and Count IV: Possession of Dangerous Drugs, a class 4 felony. The court dismissed Counts I,II, and V of the Indictment. The court imposed a suspended sentence and placed Mr. Wade on probation for four years. The terms of Mr. Wade’s probation provided for him to serve one year in jail, to complete 300 hours of community service, and to pay a fine in the amount of $7,850.00. 6. On October 7, 1999, the Department denied the Application. 7. On October 21, 1999, Mr. Wade filed a request for hearing on the Department’s denial of the Application, a Notice of Hearing was issued by the Department resulting in the instant hearing. 8. During the hearing, Mr. Wade testified that he was remorseful over the activities underlying the above-mentioned convictions and asserted that since the time of the convictions to the present date, he has changed and is not the same person who committed the illegal activities. 9. The evidence of record establishes that Mr. Wade was successfully discharged from probation in Case No. CR94-00676. 10. Mr. Wade was employed as a telemarketer working twenty hours a week at the time when the activities underlying the above-mentioned felony convictions occurred. During his jail term, Mr. Wade continued to work as a telemarketer on a work furlough program. While on that program, Mr. Wade was promoted to the position of assistant manager and then, ultimately, manager. For the past 18 months, Mr. Wade has been employed in a clerical capacity with Ancap Insurance Inc., an insurance agency (“Ancap”). 11. Frank Capparelle, Sr. (“Mr. Capparelle”), the owner of Ancap, testified as a character witness on Mr. Wade’s behalf. Mr. Capparelle hired Mr. Wade as a clerk for Ancap after Mr. Wade responded to an advertisement listed in a local newspaper. According to Capparelle, when Mr. Wade was interviewed, he had long hair and a beard. Despite his appearance, Mr. Capparelle felt that Mr. Wade had certain qualities that convinced him Mr. Wade was a good candidate for the available position. Prior to being hired, Mr. Wade informed Mr. Capparelle of his criminal background and conviction. Despite Mr. Wade’s criminal background, Mr. Capparelle felt that Mr. Wade deserved an opportunity to prove himself. Mr. Capparelle had never hired an ex-felon before hiring Mr. Wade but was impressed at the initial interview with Mr. Wade. 12. Mr. Capparelle has been licensed as a life and disability insurance agent in the State of Arizona since 1975 and has also been licensed in this state as a property and casualty insurance agent since 1981. Since 1991, Mr. Capparelle has owned and operated Ancap. Over the years, he has hired individuals to act in a clerical capacity similar to the current position Mr. Wade holds with Ancap. Mr. Capparelle has a good record with the Department. 13. Mr. Capparelle testified that as one progresses in the clerical position at Ancap, it is helpful and part of the normal course of business for that person to obtain an insurance agent’s license. Mr. Capparelle further testified that it would be beneficial to Ancap if Mr. Wade obtained an insurance agent’s license. 14. Mr. Capparelle has observed over the 18 months that Mr. Wade has been employed with Ancap that he is a hard worker and an excellent employee. Mr. Capparelle testified that Mr. Wade improved his appearance without any direction from Mr. Capparelle by cutting his long hair, by shaving his beard, and by improving his work attire. Mr. Capparelle noticed that Mr. Wade took an interest in the insurance business and was motivated to learn more about the industry. It was that interest that caused Mr. Wade to study for the insurance agent ‘s examination on his own without attending a course. 15. Mr. Capparelle has received letters of praise and referrals as a result of Mr. Wade’s performance on the job and has not received any complaints concerning his work. Mr. Capparelle opined that Mr. Wade would make a good insurance agent. 16. Since his conviction, Mr. Wade has relocated to a different part of Phoenix and does not associate or maintain contact with the friends or acquaintances with whom he previously associated with. 17. Mr. Wade testified that he has not used any illegal substances for at least a two year period prior to the hearing and does not engage in the activities that gave rise to the above-mentioned convictions. 18. Since the above-mentioned convictions, Mr. Wade has had one criminal violation for Driving While Intoxicated (“DUI”), a misdemeanor. Mr. Wade explained that the DUI conviction occurred during Thanksgiving of last year. Mr. Wade testified that prior to the DUI conviction he used to frequent liquor establishments with friends but no longer does so. Mr. Wade represented that the DUI was a lapse in judgment that will not be repeated. 19. Mr. Wade presented himself as being an individual devoted to family life. He testified that a couple of times a year he donates clothes and furniture to the Salvation Army. 20. Mr. Wade testified that when he was discharged from probation in Case No. 94-00676, he had not served all of his community service hours and that the sum of $1800.00 remained unpaid on the fine. Mr. Wade explained that the fine in Case No. CR94-00676 remains unpaid is because he had to pay the fine imposed in the above-mentioned DUI conviction within a four month period and because he paid outstanding traffic tickets. During the hearing, Mr. Wade represented his intention to begin making payments on the $1800.00 fine beginning in January 2000 until it is fully paid. 21. Despite the obvious bias of Messrs. Capparelle and Wade, it is determined that their testimony, as set forth above, is credible. 22. This Judge was impressed with the candor displayed by Mr. Wade during the hearing as well as his strong work ethic demonstrated by the testimony of Mr. Capparelle. It is unfortunate for Mr. Wade that he has had one setback as evidenced by the above-mentioned DUI conviction. However, the totality of the evidence presented establishes that Mr. Wade has rehabilitated himself and is attempting to become a productive member of society. Despite his past criminal history and fairly recent DUI misdemeanor conviction, the weight of the evidence supports a showing of an individual deserving of an opportunity to act in a professional manner within the insurance industry. CONCLUSIONS OF LAW 1. The above-mentioned conviction in Case No. CR94-00676 establishes that Mr. Wade has a record of a felony conviction involving moral turpitude within the meaning of A.R.S.§20-290(B)(6). 2. Based on the above, grounds exist for the Director of the Department (“Director”) to deny the Application. 3. Mr. Wade has met his burden of proving by a preponderance of the evidence that he possesses the requisite qualifications to hold an insurance agent’s license. RECOMMENDED ORDER Under the particular facts and circumstances of this matter, particularly taking into consideration the age of Mr. Wade when the activities underlying the above-mentioned felony criminal conviction occurred as well as Mr. Wade’s rehabilitation, it is recommended that the Director exercise his discretion favorably and grant the Application. Done this day, December 28, 1999

______________________________________ Lewis D. Kowal Administrative Law Judge . . . . . . . . .

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

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

ATTN: Curvey Burton

By ___________________________ -----------------------

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