ORDERS:
ORDER
STATEMENT
OF THE CASE
This
is a contested case brought by Petitioner Lawrence Green (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 September
25, 2008, 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 April 21, 2008, 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 was charged with Illegal Distribution of
Recordings. He thereafter pled guilty to the charge and paid a fine of $100. However,
that guilty plea was made under the mistaken impression that the misdemeanor would
be expunged from his record in a year. Furthermore, Petitioner has been in the
real estate business for most of his life and has never had any problems
relating to his profession.
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. 2007), 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. 2007). 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. 2007). 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.
Here, the Department denied
the Petitioner’s application for a mortgage originator licensed based upon his
conviction of possession of illegal recordings but took no position concerning
that denial at the hearing. I find that Petitioner’s conviction does not
warrant the conclusion that the Petitioner will not conduct business
“honestly.” The evidence established that since his conviction, Petitioner has
had a clean record and has successfully been in business. Furthermore, the
incident occurred more than nine (9) years ago. Lastly, the Department simply
placed his record into evidence and stated that they were taking no position in
the case.
ORDER
IT IS HEREBY ORDERED that the Petitioner’s application for an Originator’s License is GRANTED.
AND IT IS SO
ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
September 30, 2008
Columbia, South Carolina
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