ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
Dale Olin challenging the decision
of the South Carolina Department of Consumer Affairs (“Department”) which
denied Petitioner’s Originator License for Mortgage Broker Company Originators
based on Petitioner’s application and the South Carolina Law Enforcement
Division’s (“SLED”) criminal records check. A hearing was held before me on December
14, 2005 at the offices of the Administrative Law Court (“ALC” or “Court”) in Columbia, South Carolina.
FINDINGS OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion of
parties, I make the following findings of fact by a preponderance of evidence:
1. Notice
of the time, date, place and subject matter of the hearing was given to
Petitioner and Respondent.
2. Petitioner
Olin, in completing his application, Supplemental Form O for an originator’s
license, submitted a sworn statement that all information contained in the
application is true, current and correct. Petitioner answered “YES” to the
question on the form, “Have you ever been convicted of a felony or an offense
involving breach of trust, moral turpitude or dishonest dealings within the
last ten years?”
3. Petitioner’s
arrest record (Respondent’s Exhibit #3) shows a felony conviction for
Manufacture/Distribute CDS (Controlled Dangerous Substance) in Ocean City, New Jersey on April 22, 2002.
4. Petitioner
admitted on the record that he was convicted for committing a felony within the
last ten years. Petitioner testified that he pled guilty to one charge, while
the accompanying charges from the incident were dropped.
5. Petitioner
was sentenced to three years probation and a six month suspension of his
driver’s license. He served one year probation before his sentence was
commuted.
6. Petitioner
is sorry for his mistakes in the past. He has matured since the time of his
conviction and plans to get married in the near future. Petitioner wants to
leave the restaurant service industry for a more stable professional career.
Petitioner believes he should not continue to be punished for a crime he
committed in the past for which he has already received punishment.
7. While
this Court is sympathetic with Petitioner, we are bound by the South Carolina
Code, the information contained in the criminal records check, and the
testimony at the hearing.
CONCLUSIONS
OF LAW
Based upon the above
findings of fact, I conclude the following as a matter of law:
1. Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to S.C. Code Ann. 37-6-414 (eff. July 1, 2005), S.C. Code Ann. §
1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2004).
2. S.C. Code
Ann. § 40-58-50(C) (eff. January 13, 2005) sets forth:
The application for an
originator license must designate the employing mortgage broker and must
include descriptions of the business activities, educational background, and
general character and fitness of the applicant as required by this chapter,
including consent to a criminal records check…
3. S.C.
Code Ann. § 40-58-55 (eff. July 1, 2005) sets forth:
(A) The department may refuse
to license an applicant or refuse to renew a license if it finds, after notice
and a hearing pursuant to the Administrative Procedures Act, that the applicant
or his agent 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.
(B) A person who was in
business as a mortgage broker or is an agent of a broker before October 1,
1998, and who has been convicted of a felony or an offense involving breach of
trust, moral turpitude, fraud, or dishonest dealing within the past ten years
may continue in business as a mortgage broker or agent, but if a mortgage
broker or an agent of a broker is convicted of an offense enumerated in item
(3) of subsection (A) on or after October 1, 1998, that person is subject to
the provisions of this chapter.
(Emphasis added.)
4. The record shows
Petitioner has a felony conviction for Manufacture/Distribute CDS on April 22,
2002. Accordingly, since Petitioner has a felony conviction within the
last ten years, pursuant to S.C. Code Ann. § 40-58-55 (eff. July 1, 2005), the
Department’s refusal to license Petitioner was proper.
ORDER
Based upon the above
Findings of Fact and Conclusions of Law, it is hereby ORDERED that Petitioner
Dale Olin is not entitled to an Originator License for Mortgage Broker Company
Originators.
AND IT IS SO
ORDERED.
_________________________________
John D. McLeod
Administrative
Law Judge
December 15, 2005
Columbia, South Carolina |