ORDERS:
ORDER
STATEMENT OF THE CASE
This is a contested case brought by Petitioner Jeremiah E. Villavicencio (Petitioner) challenging the decision of the South Carolina Department of Consumer Affairs (Department). The Department denied Petitioner’s application for an Originator’s License based on the South Carolina Law Enforcement Division’s criminal records check. After proper notice, a hearing was held before me on December 13, 2006, at the Administrative Law Court (ALC) in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of persuasion and the credibility of the witnesses, I make the following findings of fact by a preponderance of the evidence:
Petitioner submitted an application for an Originator’s License on March 6, 2006, to the Department. In reviewing Petitioner’s application, the Department obtained a copy of Petitioner’s criminal record from the South Carolina Law Enforcement Division. Petitioner’s record indicated that he had passed fraudulent checks to merchants on December 9, 2004, September 12, 2004, and February 3, 2005. He was thereafter convicted of three (3) counts of issuing fraudulent checks in violation of S.C. Code Ann. § 34-11-60 (1987) on August 26, 2005.
Petitioner does not dispute the fact that he was convicted of these three offenses. He further recognized that what he did was wrong. Nevertheless, when the charges were brought, Petitioner promptly paid the checks. Petitioner also stressed that the issuance of the fraudulent check occurred while he was in college and he was not as responsible then as he is now. Additionally, Petitioner’s father testified that he has raised his son to believe in hard work, and possess integrity and good moral values.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude the following as a matter of law:
1. This Court has jurisdiction over this contested case proceeding pursuant to S.C. Code Ann. § 37-6-414 (Supp. 2005), S.C. Code Ann. § 40-58-55(A) (Supp. 2005), and S.C. Code Ann. § 1-23-600(B) (Supp. 2005).
2. An application to become licensed as a mortgage originator must be in writing and made under oath. S.C. Code Ann. § 40-58-50 (A) (Supp. 2005). The application must also include an affirmation of the general character and fitness of the applicant including consent to a criminal records check. S.C. Code Ann. § 40-58-50 (B)(1) (Supp. 2005). If the Department does not find that the “character, and general fitness of the applicant…are such as to command the confidence of the community and to warrant belief that the business may be operated honestly, fairly, and efficiently according to the purposes of this chapter…it shall refuse to license the applicant and shall notify him of the denial.” S.C. Code Ann § 40-58-60 (A). S.C. Code Ann. § 40-58-55 (Supp. 2005) further provides that the Administrative Law Court may review the determination by the Department that the applicant has:
(1) violated a provision of this chapter or an order of the department;
(2) withheld material information in connection with an application for a license or its renewal, or made a material misstatement in connection with the application;
(3) been convicted of a felony or of an offense involving breach of trust, moral turpitude, fraud, or dishonest dealing within the past ten years.
Here, Petitioner has three convictions of passing a fraudulent check within the past ten years. These crimes involve moral turpitude. South Carolina courts have defined moral turpitude as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between a man and man.” State v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263, 263 (1978). Further, “[a]n act in which fraud is an ingredient involves moral turpitude.” Id. In determining whether a crime is one involving moral turpitude, courts focus primarily on the duty to society and fellow man that is breached by the commission of the crime. Alex Sanders et. al., Trial Handbook for South Carolina Lawyers § 13:13 at 484 (2000). Moreover, our Courts have specifically held that a fraudulent check conviction pursuant to Section 34-11-60 is a crime of moral turpitude. State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989) (superseded by rule on other grounds).
The statutes governing the licensing of mortgage originators set forth that the character of a broker must be one that commands the “confidence of the community” and warrants the belief that the business will be operated “honestly.” The criminal convictions of the Applicant certainly create a reasonable question as to his honesty. Petitioner argues that he has changed since graduating from college and in the past year he has become more responsible. On the other hand, the Department simply placed the convictions into evidence without offering any evidence supporting its reasoning in this case. There is also no evidence that Petitioner mislead the Department in this matter. I am further persuaded by Petitioner’s father that Petitioner was raised to possess integrity and good moral values and further believe that Petitioner will return to those values.
Nevertheless, insufficient time has elapsed to persuasively demonstrate that Petitioner has rehabilitated his character so as to command the confidence of the community to merit his receiving a license to initiate mortgages. Notability, the most recent occurrence of the Petitioner passing a fraudulent check occurred on February 3, 2005. Therefore, less than two years has passed since Petitioner’s last fraudulent deed and just over a year since his conviction. Furthermore, Petitioner’s track record in the mortgage business is currently limited. I thus find that Petitioner’s license should be denied at the present time. It nonetheless appears that if Petitioner continues on his present path, his character should be sufficiently rehabilitated to receive an Originator’s License by February 3, 2008.
ORDER
IT IS HEREBY ORDERED that the Petitioner’s application for an Originator’s License is DENIED.
AND IT IS SO ORDERED.
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Ralph King Anderson, III
Administrative Law Judge
January 2, 2007
Columbia, South Carolina
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