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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOI vs. Joseph H. Bosman

AGENCY:
South Carolina Department of Insurance

PARTIES:
Petitioners:
South Carolina Department of Insurance

Respondents:
Joseph H. Bosman
 
DOCKET NUMBER:
99-ALJ-09-0451-CC

APPEARANCES:
Petitioner & Representative:
South Carolina Department of Insurance, Doug Concannon, Esquire

Respondent & Representative:
Joseph H. Bosman, Pro Se
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction



The South Carolina Department of Insurance (DOI) seeks to revoke an adjuster's license held by Joseph H. Bosman (Bosman) or in the alternative impose a $500 fine. DOI asserts that Bosman failed to notify DOI of Bosman's change of address within thirty days of the date the address changed. Bosman disagrees with DOI's determination.



The disagreement has given rise to a contested case under S.C. Code Ann. §§ 1-23-600(B) and 38-43-130 (Supp. 1998) with the hearing in this matter held on November 29, 1999. After considering the evidence and the arguments presented, a fine of $250 is imposed.



II. Issues



1. Did Bosman violate S.C. Code Ann. § 38-47-15 by failing to notify DOI of his change of address within thirty days of the date of his address change?



2. If a violation occurred what is the proper penalty?



III. Analysis



A. Notice of Change of Address



1. Positions of Parties



First, Bosman explains that his adjuster's license was issued in 1974 and that a 1974 license is not subject to the duty to notify DOI of an address change since that duty arose only for licenses issued after February 24, 1988, the date the duty was imposed. Second, even if subject to the change of address requirement, Bosman argues that DOI has not proven the date upon which the alleged violation occurred. Finally, Bosman argues that he did supply his address change and thus did not violate the change of address duty.



DOI counters that Bosman is liable for the change of address requirement regardless of the date the original license is issued, that the violation occurred after 1997 but before 1999, and that Bosman supplied his correct address only in 1999 which was many months past the 30 day deadline imposed by statute.



2. Findings of Fact



I find by a preponderance of the evidence the following facts:



On June 30, 1999, DOI mailed to Bosman an adjuster's license renewal package with the package mailed to 4420 Beechaven Drive, Rock Hill, SC 29730. DOI used the Rock Hill address since it was the address shown on Bosman's September 26, 1997 application in which he sought a continuation of his adjuster's license. The Rock Hill address was the latest address shown on an application filed with DOI by Bosman. In fact, the Rock Hill address was shown by Bosman on several applications for continuation of his adjuster's license with the Rock Hill address being used as far back as July 1992.



Even though the Rock Hill address was on the latest application filed by Bosman, the US Postal service was unable to make the delivery. Rather, the package was returned by the postal service to DOI on July 12, 1999 with the message, "Return to sender, forwarding time expired." In addition, the postal service included on the returned package a forwarding address for Bosman of P.O. Box 411, Anderson SC 29622-0411.



After DOI received the returned package, DOI mailed the package to Bosman at the Anderson address. The package was not returned to DOI . Subsequently, Bosman submitted his application for continuation of his adjuster's license with that application dated September 2, 1999 and received by DOI on September 7, 1999. On the September 2, 1999 application, Bosman gave a new address of 2411 Lebanon Road, Pendleton, SC. Since DOI determined that Bosman failed to provide notice of his change of address from Rock Hill to Anderson or to Pendleton within thirty days of the date of the address change, DOI now seeks either a revocation of Bosman's license or a fine of $500.



3. Conclusions of Law



Under S.C. Code Ann. § 38-47-15 (Supp. 1998), "[w]hen an individual applies for an adjuster's license he shall supply the department his business and residence address. The adjuster shall notify the department within thirty days of any change in these addresses." S.C. Code Ann. § 38-47-15 (Supp. 1998) (emphasis added). The statute is clear. Any change of address for a licensed adjuster must be made to DOI within thirty days of the date of the address change.



Under the facts here, Bosman changed his address but did not notify DOI of that change within thirty days of the date of the change. Here, as late as 1997, DOI had been given notice of a Rock Hill address by Bosman, and DOI used that address on June 30, 1999 to mail Bosman's application package for continuation of his adjuster's license. However, the package could not be delivered since the Rock Hill address was no longer the address of Bosman. Rather, DOI was notified on July 12, 1999 by the U.S. Postal Service that Bosman had changed his address to an Anderson address. The Anderson address was a forwarding address provided by the postal service under Section F, 5.0, a provision of the Domestic Mail Manual. Pursuant to that provision, the postal service forwards mail to a new address for twelve months. However, even after the twelve months ends, for an additional six months, the postal service will return mail to the sender and will notify the sender of the new forwarding address.



Thus, since the postal service did not deliver to the new address but instead provided DOI with a forwarding address, at least twelve months must have passed since Bosman changed his Rock Hill address to his Anderson address. Accordingly, Bosman failed to notify DOI within thirty days of the date of the change.



Bosman asserts he cannot be held liable for a failure to timely notify DOI of an address change since his license is a 1974 license. He argues that since the requirement to notify DOI of an address change became law in 1988, only licenses issued after that date are subject to the requirement. I cannot agree.



The primary rule of statutory construction a court must follow is to ascertain and give effect to the legislature's intention or purpose as expressed in the statute. Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603 (Ct. App. 1997). Courts must apply the terms of a clear and unambiguous statute according to their literal and ordinary meaning. Glover v. Suitt Const. Co., 318 S.C. 465, 458 S.E.2d 535 (1995). In this case, the language of section 38-47-15 is clear. As of the date it became effective, the statute required that an adjuster notify the department within thirty days of any change in his or her business or residence address. Nothing in the language of the statute indicates a legislative intent that the change of address requirement apply only to licenses issued after the effective date of the statute or that previously issued licenses are exempt from that requirement.



Bosman references S.C. Code Ann. § 38-47-40 (Supp. 1998) to support his proposition that he is not subject to the notification requirement of section 38-47-15. Section 38-47-40 states that an adjuster's license is for an indefinite term, unless sooner revoked or suspended, if the license fee is timely paid. The stated duration of the license, however, does not preclude the State from exercising its police power following issuance of the license to add new requirements on which the license is conditioned.



Licenses are merely permits issued pursuant to the State's police power. See Army Navy Bingo, Garrison No. 2196 v. Plowden, 281 S.C. 226, 314 S.E.2d 339 (1984); Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). A license is not a contract, but rather a special privilege. Heslep v. State Hwy. Dep't, 171 S.C. 186, 171 S.E. 913 (1933). A license creates neither a vested nor a permanent right. Id. It is a creature of statute, and the rights of the licensee are only as the statute confers. See State ex rel. Pollard v. Superior Court of Marion County, 233 Ind. 667, 122 N.E.2d 612 (1954). The license is to be enjoyed only so long as the licensee complies with the restrictions and conditions governing its continuance. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).



No person can acquire a vested right to continue, when once licensed, in a business, trade or profession which is subject to legislative control and regulation under the police power, as regulations prescribed for such may be changed or modified by the legislature, in the public interest . . . .



The granting of a license to practice certain professions is the method taken by the State, in the exercise of its police power, to regulate and restrict the activity of the licensee. He takes the same, subject to the right of the State, at any time, for the public good to make further restrictions and regulations.





Dantzler v. Callison, 230 S.C. 75, 94 S.E.2d 177 (1956).



Because Bosman took his 1974 adjuster's license subject to the right of the State to make further restrictions and regulations on the license, the enactment of section 38-47-15 in 1988 subjected Bosman to the requirement that he notify DOI within thirty days of any change in his business or residence address.



B. Applicable Penalty



1. Positions of Parties



Bosman argues that he is no longer in the adjusting business and does not believe a fine of $500 is warranted. DOI seeks either a revocation or a fine and has left the matter to the discretion of the Administrative Law Judge.



2. Findings of Fact



I find by a preponderance of the evidence the following facts:



Bosman is no longer in the business of adjusting and argues that he in good faith believed that no duty existed to report a change of address for those license holders in existence prior to 1988. Further, Bosman has now supplied DOI with his new address and is now aware of his duty to continue to provide such information to DOI within thirty days of any change.



DOI has taken a consistent position that all similarly situated adjusters have been subjected to either revocation or a fine of at least $500.



3. Conclusions of Law



Under S.C. Code Ann. § 38-47-80 (Supp. 1998) "[w]hen the director or his designee determines after investigation that there has been a violation of this title by an adjuster, upon ten days' notice, he may impose the penalties provided in Section 38-2-10." Section 38-2-10(2) states, in part the following:



if the violator is a person, other than an insurer or a health maintenance organization, licensed by the director or his designee in this State, the director or his designee shall (a) fine the violator in an amount not to exceed two thousand five hundred dollars, or (b) suspend or revoke the license of the person, . . . .



Accordingly, statutory authority exists to revoke or suspend an adjuster's license or to impose a fine of up to $2,500 for an adjuster's failure to notify DOI of a change of address within thirty days.



Under the facts of this case, a fine of $250 is appropriate. Bosman is no longer in the adjusting business and now has a clear understanding of his duty. Thus, a $250 fine is sufficient in this case.



IV. Order



Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:



DOI's request that Bosman's adjuster's license be revoked for violating S.C. Code Ann. § 38-47-15 is denied, but Bosman shall pay a fine of $250 for the violation.



AND IT IS SO ORDERED









______________________

RAY N. STEVENS

Administrative Law Judge



Dated: February 7, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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