Unik v. Ohio Dep't of Ins.
| Decision Date | 10 March 2016 |
| Docket Number | No. 102703.,102703. |
| Citation | 61 N.E.3d 531 |
| Parties | Thomas J. UNIK, III, Appellant v. OHIO DEPARTMENT OF INSURANCE, Appellee. |
| Court | Ohio Court of Appeals |
Mitchell J. Yelsky, Angelo F. Lonardo, Yelsky & Lonardo Company, L.P.A., Cleveland, OH, for appellant.
Mike DeWine, Ohio Attorney General, by Scott Myers, Assistant Attorney General, Health & Human Services Section, Columbus, OH, for appellee.
Before: KEOUGH, P.J., BOYLE, J., and S. GALLAGHER, J.
MARY J. BOYLE
, J.
{¶ 1} Appellant, Thomas J. Unik, III, appeals from a common pleas court judgment granting the motion to dismiss of appellee, Ohio Department of Insurance (“Department”), and dismissing Unik's administrative appeal. Unik raises one assignment of error for our review:
The trial court committed reversible error, and denied administrative appellant due process of law, when it dismissed this administrative appeal, without first conducting a de novo evidentiary hearing on appellant's “un-constitutional as applied” argument in opposition to administrative appellee's motion to dismiss the administrative appeal.
{¶ 2} Finding no merit to his appeal, we affirm the judgment of the common pleas court.
{¶ 3} On June 27, 2014, the Department sent a certified letter to Unik, who at the time was licensed as a resident insurance agent, notifying him that it had conducted an investigation and found that he had violated various Ohio insurance laws. The Department enclosed a notice of opportunity for hearing, setting forth four allegations of misconduct against Unik. The Department further notified Unik that he “must act within 30 days from the date the Department mailed the notice to you, to preserve your due process rights.” (Emphasis sic.) The letter further made clear:
Please note that if you choose to request a hearing, the request must be received by the Department within thirty (30) days from the date of mailing, as shown by the postmark on the envelope, of this Notice. If you do not request a hearing, then the matter will proceed on its own to the Superintendent of Insurance for a decision based only on the information we have in the file. The Superintendent may impose any sanction allowed by law including revoking your insurance license or refusing to issue you an insurance license.
{¶ 4} The record reflects that service was perfected on July 2, 2014. But Unik never responded to the letter or requested a hearing. Having never heard from Unik, the superintendent of the Department proceeded to review the allegations and evidence against Unik. On July 28, 2014, the superintendent found the following:
1. On or about June 5, 2013, Unik accepted a premium payment from an insured in the amount of $88,796.00 for policies written by, including but not limited to, Travelers Insurance Company, Torus, Greenwich Insurance Co. and Lloyds. Unik deposited the check into his business account and failed to timely remit the entire premium payment to the respective companies. [Violating R.C. 3905.14(B)(4)
.]
2. On or about June of 2013, Unik received an application for insurance along with a premium payment. Unik failed to forward the application or premium payment until on or about September 17, 2013. [Violating R.C. 3905.14(B)(15) and 3905.14(F)(2).]
3. On or about August 16, 2013, Unik attempted to pay the remainder premium due. Subsequently, those attempts were unsuccessful due to insufficient funds in Unik's bank accounts. [Violating R.C. 3905.14(B)(9).]
4. On or about April 4, 2013, Unik was indicted on four felony counts including engaging in a pattern of corrupt activity, theft, and having an unlawful interest in public contract. Unik failed to report this criminal prosecution to the Department within the required thirty day time period. [Violating R.C. 3905.22(B) and 3905.14(F)(2).]
{¶ 5} In her findings, order, and journal entry, the superintendent revoked Unik's resident insurance license in the state of Ohio pursuant to the Department's authority under R.C. 3905.14(D)
. The order also set forth Unik's appeal rights. The Department sent the order to Unik via certified mail. Service was perfected on August 10, 2014.
{¶ 6} Unik appealed the order to the common pleas court on August 12, 2014. The Department moved to dismiss Unik's appeal for failure to exhaust his administrative remedies. Unik responded, opposing the Department's motion to dismiss or in the alternative, requesting the matter be remanded to the Department for a hearing. In his response, Unik did not argue that the Department failed to provide him notice as required under R.C. 119.07
. Unik maintained, however, that he never received that notice. Unik averred that his wife signed for the original letter notifying him of the allegations against him. Unik claimed that his wife left town soon after she signed for the letter because she was an international flight attendant for United Airlines. Unik further stated that his wife never told him about the certified letter before she left. Unik said that he learned of the matter when he received the Department's order revoking his insurance license, which he immediately appealed.
{¶ 7} On February 6, 2015, the common pleas court granted the Department's motion to dismiss, finding that Unik failed to exhaust his administrative remedies under R.C. 119.07
. It is from this judgment that Unik appealed to this court.
{¶ 8} An appeal from an administrative agency in Ohio is governed by R.C. 119.12
. Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992). R.C. 119.12(A)(1) states that:
any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination, or denying the issuance or renewal of a license or registration of a licensee, or revoking or suspending a license, or allowing the payment of a forfeiture under section 4301.252 of the Revised Code
may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident.
provides in pertinent part:
The [common pleas] court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of this finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law.
{¶ 10} When reviewing an order entered by an administrative agency, the court of common pleas applies the limited standard of review set forth in R.C. 119.12
and determines whether the order is supported by reliable, probative, and substantial evidence and is in accordance with law. Young v. Cuyahoga Work & Training Agency, 8th Dist. Cuyahoga No. 79123, 2001 WL 824466, *2 (July 19, 2001), citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110, 407 N.E.2d 1265 (1980). When reviewing the common pleas court's determination, the appellate court determines only whether the court abused its discretion in finding whether the agency's order is supported by such evidence. Id., citing Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707, 590 N.E.2d 1240 (1992). “Absent an abuse of discretion on the part of the trial court, a court of appeals must affirm the trial court's judgment.” Id. at 707, 590 N.E.2d 1240.
{¶ 11} In his sole assignment of error, Unik contends that R.C. 119.07
is unconstitutional as applied to “the unique set of facts” of his case. R.C. 119.07 sets forth the procedures that an administrative agency must follow when providing a party notice and opportunity to be heard before the agency can suspend or revoke the party's state license. Unik argues that the trial court denied him due process of law when it dismissed his administrative appeal without conducting a de novo evidentiary hearing on “appellant's ‘un-constitutional as applied’ argument in opposition to administrative appellee's motion to dismiss the administrative appeal.” We disagree.
2d Dist. Montgomery No. 18902, 2002-Ohio-3159, 2002 WL 1349600, ¶ 17 ; Noernberg v. Brook Park, 63 Ohio St.2d 26, 29, 406 N.E.2d 1095 (1980). The Ohio Supreme Court has explained, “ ‘[It is] the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” (Alterations sic.) Jones v. Chagrin Falls, 77 Ohio St.3d 456, 462, 674 N.E.2d 1388 (1997), quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638, (1938).
{¶ 13} The doctrine of exhaustion of administrative remedies is one of judicial abstention. Lamar Outdoor Advertising at ¶ 17. “The purpose of the doctrine of exhaustion of administrative remedies is to prevent premature interference with the administrative processes.” Basic Distrib. Corp. v. Ohio Dept. of Taxation, 94 Ohio St.3d 287, 290, 762 N.E.2d 979 (2002)
. Moreover, the doctrine allows the administrative body to function efficiently, correct its own errors, and apply its special expertise. Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 111, 564 N.E.2d 477 (1990), quoting Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
{¶ 14} Because Unik failed to request a hearing after receiving notice from the Department, he has waived his right to challenge the findings by the Department. Mays...
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