ORDERS:
ORDER
STATEMENT OF THE CASE
This is a contested case brought by Petitioner Stephen Davis (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 August 23, 2007, 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 June 7, 2007, to the Department. The application asks whether the applicant has ever been convicted of a felony or a crime involving moral turpitude. Petitioner checked “No” next to this question. In reviewing Petitioner’s application, the Department obtained a copy of Petitioner’s criminal record from the South Carolina Law Enforcement Division (SLED). Petitioner’s record indicated that he been convicted in North Carolina of housebreaking and larceny on July 15, 2005. Both of the crimes were generally listed as felonies pursuant to “16-11-313.”
Petitioner does not dispute the fact that he committed these offenses. In fact, he testified he has completed fifty hours of community service as well as two years of probation. Rather, Petitioner testified that the offenses were misdemeanor offenses in North Carolina, not felonies. Petitioner testified that when he began his parole, he was informed by his parole officer that he was classified as a felon. However, after following up on this discrepancy, he was assured that his record had been changed to indicate that his crimes were misdemeanors. Therefore, he contends that he was not aware that the SLED report classified his crimes as felonies until the start of the hearing. Furthermore, following the hearing, Petitioner filed a new SLED report with the Court which indicated that his two crimes are now classified as misdemeanors, citing 16-11-320 (1).
Petitioner has not been in any trouble since this incident and has been working to rehabilitate himself by finishing his college degree, working and volunteering with his cousins youth group.
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. 2006), S.C. Code Ann. § 40-58-55 (A) (Supp. 2006), and S.C. Code Ann. § 1-23-600 (B) (Supp. 2006).
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. 2006). 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. 2006). 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. 2006) 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.
The Department relies upon a “rap sheet” obtained from SLED which cites a South Carolina statute (16-11-313) as support for the fact that Petitioner was convicted of a felony. The corrected SLED criminal record submitted by the Respondent following the hearing cites a South Carolina statute, (16-11-320) that was repealed in 1985, for the fact that petitioner was convicted of a misdemeanor. Therefore, this court is left to consider a criminal record citing a repealed South Carolina statute as support that a North Carolina crime is a misdemeanor. The absurdity should be obvious.
If the classification of the offenses in the criminal record is ignored, the only evidence left in the record concerning whether the crimes for which Petitioner was convicted were misdemeanors or felonies is the testimony of Petitioner that the offenses were misdemeanors. However, adding to this quagmire is the law. My research reveals that the North Carolina statutes set forth that a person who “who wrongfully breaks or enters any building” in violation of N.C. Gen. Stat. Ann. § 14-54 is guilty of a Class 1 misdemeanor. Furthermore, N.C. Gen. Stat. Ann. § 14-73 provides that the offenses of larceny “which are made misdemeanors by Article 16, Subchapter V, Chapter 14 of the General Statutes, as amended, are hereby declared to be petty misdemeanors.” Larceny of property where the value of the property is not more than one thousand dollars ($1,000), is classified as a misdemeanor. Nonetheless, N.C. Gen. Stat. Ann. § 14-72 provides that a larceny that is committed in violation of N.C. Gen. Stat. Ann. § 14-54 (housebreaking) is a felony.
Here, Petitioner testified that he used a key to open the door of his girlfriend’s home and let her dog out, which resulted in his convictions. The Department offered no facts or documents other than the SLED “rap sheet” to support its claim that Petitioner was convicted of a felony. The facts surrounding Petitioner’s case indicate that he was convicted of misdemeanor housebreaking and felonious larceny. However, those facts were based upon his testimony. In that same testimony, Petitioner also clearly testified that he was not convicted of a felony. Moreover, the Department’s sole dispute of that claim was based upon the SLED “rap sheet” citing a South Carolina statute and thus simply carries no weight as to the North Carolina conviction. Therefore, I find the evidence concerning a felony conviction is sufficiently debatable to find that a denial upon this ground is not warranted.
Thus, the Court is left to determine whether Petitioner should be denied an Originator’s License because he was convicted of a crime of “moral turpitude, fraud, or dishonest dealing.” Here again, other than a SLED “rap sheet,” the Department offered no evidence or legal support that these North Carolina offenses are crimes involving “moral turpitude, fraud, or dishonest dealing.” In South Carolina, both larceny and housebreaking have been determined to be crimes involving moral turpitude. See State v. Vaughn, 268 S.C. 119, 232 S.E.2d 328 (1977) (Larceny has been declared to involve moral turpitude.); Rouse v. McCrory, 291 S.C. 218, 353 S.E.2d 130 (1986) (“housebreaking is a crime of moral turpitude because it exhibits depravity of spirit and a willful neglect of the duties which man owes to man.”) The crime of misdemeanor housebreaking in North Carolina occurs when a person “wrongfully breaks or enters any building.” N.C. Gen. Stat. Ann. § 14-54 (b). To the contrary, in South Carolina housebreaking as codified in S.C. Code Ann. § 16-11-320 (1985) and as currently codified as burglary (third degree) in S.C. Code Ann. § 16-11-313 (Supp. 2006) requires that the person enter a dwelling with intent to commit a crime therein. Therefore, the South Carolina case law which finds that housebreaking is a crime of moral turpitude is not based upon a reciprocal statute. I nevertheless find that Petitioner’s actions were reflective of a breach of trust or dishonest dealing.
In North Carolina “[t]he elements of larceny include: (1) the wrongful taking and carrying away of the personal property of another without his consent; (2) with the intent to permanently deprive the owner of his property and to appropriate it to the taker's own use.” State v. Smith, 66 N.C. App. 570, 312 S.E.2d 222 (1984) review denied 315 S.E.2d 708, 310 N.C. 747. In South Carolina, larceny is defined as “the felonious taking and carrying away of the goods of another against the owner's will or without his consent.” State v. Condrey, 349 S.C. 184, 191, 562 S.E.2d 320, 323 (Ct. App. 2002). “The taking must be done animo furandi-with a view of depriving the true owner of his property and converting it to the use of the offender.” Condrey, 562 S.E.2d at 323. These elements are virtually the same as the elements in North Carolina. Therefore, I find that the crime of larceny in North Carolina involves moral turpitude.
As set forth above, the undisputed facts are that these convictions resulted from Petitioner using a key to open the door of his girlfriend’s home and then letting her dog out of the home. Petitioner argues that his actions were childish rather than dishonest. Nevertheless, the Petitioner’s criminal convictions create a reasonable question as to his honesty. Furthermore, 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. Nevertheless, though I do not find that sufficient time has yet passed to warrant receiving an Originator’s License, it nonetheless appears that if Petitioner continues on his present path, his character should be sufficiently rehabilitated to receive an Originator’s License by July 15, 2010.
ORDER
IT IS HEREBY ORDERED that the Petitioner’s application for an Originator’s License is DENIED.
AND IT IS SO ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
The Department did not object to the submission of this evidence after the record was closed.
Adding to the absurdity is the fact that housebreaking committed pursuant to Section 16-11-320 was a felony.
The Department offered no testimony but rather based its entire case upon the SLED report.
“A crime involving moral turpitude is an act of baseness, vileness, or depravity in the private and social duties which man owes to his fellow man or to society in general, contrary to the customary and accepted rule of right and duty between man and man.” State v. Perry, 294 S.C. 311, 312, 364 S.E.2d 201, 202 (1988).
It is noteworthy that the statute governing the examination of Petitioner’s character and fitness to receive an Originator’s License establishes a time frame of ten years for the consideration of crimes involving moral turpitude or fraud. Obviously, consideration should nevertheless be given to mitigating factors. |
