State ex rel. Life of Maryland, Inc. v. Katz

Per Curiam. Relator argues that respondent has improperly refused to consider its application for a certificate of authority. We disagree. Relator contends that respondent’s policy of considering fifteen applications at each of its meetings, which are held four times a year, is an administrative rule which does not conform to the statutory scheme of the requirements of R.C. Chapter 119, the Administrative Procedure Act. R.C. 119.01(C) defines a rule as: “* * * any rule, regulation, or standard, having a general and uniform operation, adopted, promulgated, and enforced by any agency under the authority of the laws governing such agency, but it does not include regulations concerning internal management of the agency which do not affect private rights.” (Emphasis added.) The record clearly demonstrates that respondent’s department has limited resources and per1 sonnel. Respondent’s policy of reviewing fifteen applications each meeting is a managerial response to those limitations and not an administrative rule. “In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. (State, ex rel. Harris, v. Rhodes, 54 Ohio St. 2d 41 [8 O.O.3d 36].)” State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St. 2d 42 [15 O.O.3d 53], paragraph one of the syllabus. Relator has failed to show that the Revised Code creates a clear legal duty for respondent to act beyond his department’s practical capacity and review more applications. Rather, R.C. 3909.01 requires that a foreign insurance company secure a certificate of authority before doing business in Ohio. For such a company doing business in this state is a privilege, not a right. See State, ex rel. Insurance Co., v. Moore (1884), 42 Ohio St. 103, 106. If it is improper for us to order respondent to consider relator’s application, then we certainly cannot order respondent to issue a certificate of authority on relator’s behalf.2 [142] Accordingly, relator’s request for a writ of mandamus is denied. Writ denied. Celebrezze, C.J., W. Brown, Locher, Holmes and Cook, JJ., concur. Sweeney and C. Brown, JJ., dissent. Cook, J., of the Eleventh Appellate District, sitting by assignment. Footnotes [2] Relator also complains that respondent’s requirement that a company be in business for two years before the respondent would grant its request for a certificate of authority is improper. Respondent did not apply this requirement to relator, however, because he was unable to consider its application. It is, therefore, unnecessary for us to consider the propriety of this two-year rule in light of our disposition of this case.