ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
Donna B. Horton 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 November 3, 2005 at the offices of the Administrative Law Court
(“ALC” or “Court”) in Columbia, South Carolina. Based on the evidence before
me, I find and order that the Petitioner be granted her license.
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
Horton, in completing her 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 #2, shows a conviction for Breach of Trust
with Fraudulent Intent in 1998. Essentially the Petitioner’s employer, a local
grocery store, pursued this criminal action based on Petitioner’s allegedly
removing food items valued at under $10.00 from the area in which she was
working. It appears that the proper charge should have been petit larceny, not
breach of trust with fraudulent intent. She was convicted and fined $250.00.
4. Petitioner
testified that she has put this incident behind her and that the entire matter was
very hurtful to her. She was truthful on her application, but did not feel
that she was truly guilty of this offense.
5. The
Court found the Petitioner to be a very credible witness. Her account of the
underlying facts of the incident has convinced this Court that this statute
should not be construed strictly against the Petitioner.
6. The
Petitioner introduced without objection letters written on her behalf and called
a witness to testify as to her character and work ethic. All evidence shows
the Petitioner to be a hard working, truthful individual. The Court notes that
the Petitioner truthfully disclosed her conviction on her application.
CONCLUSIONS
OF LAW
Based upon the above
findings of fact, I conclude the following as a matter of law:
1. S.C. Code
Ann. 37-6-414 (2005), S. C. Code Ann. §§ 1-23-600, et seq. (2005)
and S.C. Code Ann. § 1-23-380 (2005) grant jurisdiction to the Administrative Law
Court to hear this contested case.
2. S.C. Code
Ann. § 40-58-50(C) (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 (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 only the one conviction for Breach of Trust with
Fraudulent Intent in 1998, which is an offense specifically
included in S.C. Code Ann. § 40-58-55(A)(3) (2005). Although the Petitioner’s conviction was within
the last ten years, pursuant to S.C. Code Ann. § 40-58-55 (2005), I conclude that
the Department’s refusal to license Petitioner was not proper. The Petitioner
presented several mitigating circumstances for this conviction and was a credible
witness. She was truthful with the Department and the Court. In addition,
S.C. Code Ann. § 40-58-55 is a permissive, not mandatory, statute in that the
Department “may refuse to license an applicant.”
"The cardinal rule
of statutory construction is to ascertain and effectuate the legislative intent
whenever possible." Strother v. Lexington County Recreation Comm'n,
332 S.C. 54, 62, 504 S.E.2d 117, 121 (1998). "All rules of statutory
construction are subservient to the one that the legislative intent must
prevail if it can be reasonably discovered in the language used, and that
language must be construed in the light of the intended purpose of the
statute." Kiriakides v. United Artists Communications, Inc., 312
S.C. 271, 275, 440 S.E.2d 364, 366 (1994). The words of the statute must be
given their plain and ordinary meaning without resorting to subtle or forced
construction to limit or expand the statute's operation. Hitatchi Data Sys.
Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). Marlboro
Park Hospital v. SCDHEC, 257 S.C. ____, 595 S.E. 2d 851 (SC Ct. App.
2004). Here the use of the permissive “may” versus the mandatory “shall”
indicates that the Legislature intended that the application of this statute is
discretionary.
In this matter, I find that the statute should not be
strictly construed against the Petitioner.
ORDER
Based upon the above
Findings of Fact and Conclusions of Law, it is hereby ORDERED that
Petitioner Horton is entitled to an Originator License for Mortgage Broker
Company Originators.
AND IT IS SO
ORDERED.
_________________________________
Carolyn
C. Matthews
SC
Administrative Law Judge
December 28, 2005
Columbia, South Carolina |