ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before me pursuant to Respondent Michael Muhammad, d/b/a Palmetto Auto
Agency (“Respondent”)’s request for a contested case hearing regarding the South Carolina
Department of Insurance (“Department”)’s decision to revoke his insurance agent’s license.
On February 11, 2003, the Department served a Letter of Allegation and Notice of
Opportunity for Public Hearing upon Respondent via certified mail and via first class mail. The Letter
of Allegation was addressed to Respondent and mailed to him at his home address. The Letter of
Allegation informed Respondent that the Department had received reliable evidence that Respondent,
in his capacity as a licensed South Carolina insurance agent, had failed to file a claim with an insurer
on behalf of an insured, and that Respondent had failed to notify the insured of the need for renewal
and the consequent cancellation of her homeowners insurance policy. The Letter of Allegation
further notified Respondent that if he did not respond to the allegations and/or request a public
hearing within thirty days of the date of the Letter of Allegation, he would be in default and waive
his right to be heard, the allegations against him would be deemed admitted, and his insurance agent’s
license would be revoked. The certified Letter of Allegation was eventually returned to the
Department by the U.S. Postal Service as “unclaimed;” however, the first class Letter of Allegation
was not returned. Respondent did not respond or reply to the Letter of Allegation in any way.
On March 11, 2003, the Department issued an Affidavit of Default, and a Default Order
Revoking Residential Insurance Agent’s License was entered against Respondent and served on him
by certified mail and first class mail at the same address used to mail the February 11, 2003 Letter of
Allegation.
On April 15, 2003, the Department received a letter from Respondent requesting that the
Department reconsider its decision revoking his insurance agent’s license and rescind the Default
Order. On May 16, 2003, the Department sent a reply to Respondent’s request, setting out the
reasons why his license was revoked. On June 4, 2003, Respondent’s counsel sent a letter to the
Department on behalf of Respondent, stating that Respondent had advised counsel that he had not
received the February 11, 2003 Letter of Allegation and requesting that Respondent be given an
opportunity to be heard on the allegations referenced therein. The Department subsequently
transmitted the file to the Administrative Law Judge Division (“ALJD”), and a contested case hearing
was scheduled for August 11, 2003, at the ALJD offices in Columbia, South Carolina.
Prior to the scheduled contested case hearing, the Department filed a Motion to Dismiss this
matter on the ground that Respondent failed to file or request an appeal within thirty days of March
11, 2003, the day that the Department served Respondent with the Default Order, as required by
ALJD Rule 33. This tribunal notified counsel for both parties that it would hear oral arguments on
the Motion to Dismiss at the beginning of the contested case hearing on August 11, 2003.
The hearing in this matter commenced at 9:30 a.m. at the offices of the ALJD, as noticed in
the Notice of Hearing issued July 9, 2003. Present were Joseph D. McMaster, Esquire, on behalf of
the Department, and Kernard E. Redmond, Esquire, on behalf of Respondent. Respondent, however,
did not appear at the hearing. Mr. Kernard expressed to this tribunal that he had conferred with
Respondent several times prior to the hearing date and that Respondent knew that the hearing was
scheduled for 9:30 a.m. on August 11, 2003. Mr. Kernard further stated that he had repeatedly
attempted to contact Respondent prior to commencement of the hearing, but that he had not been
able to reach him and therefore did not know where he was. This tribunal proceeded to hear
arguments from counsel regarding the Motion to Dismiss. Mr. Kernard did his best in his client’s
absence to express his client’s position that Respondent did not receive the February 11, 2003 Letter
of Allegation from the Department, which was addressed to the residence Respondent shares with
his elderly aunt. However, as this tribunal pointed out to counsel during the hearing, there is a
presumption that if a letter is mailed first class through the U.S. Postal Service, and is not returned
to the sender, the letter was received by the addressee. As noted in the Department’s Motion to
Dismiss and its attached exhibits, the February 11, 2003 Letter of Allegation was served on
Respondent via certified mail and first class mail; only the certified Letter of Allegation was returned
to the Department as unclaimed. Thus, there is a rebuttable presumption that Respondent received
the February 11, 2003 Letter of Allegation that was served on him by first class mail.
Before concluding the hearing on the Motion to Dismiss, this tribunal ordered a recess to
allow Mr. Redmond another opportunity to contact Respondent. During the recess, Mr. Redmond
used all due diligence to try to contact Respondent, but he was again unable to reach him. The
hearing recommenced, and this tribunal ordered that, without Respondent’s presence at the hearing
to offer testimony rebutting the presumption that Respondent received the first class February 11,
2003 Letter of Allegation, this tribunal must grant the Department’s Motion to Dismiss. Accordingly,
IT IS THEREFORE ORDERED that the Department’s Motion to Dismiss is GRANTED;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 11, 2003
Columbia, South Carolina |
