ORDERS:
ORDER
STATEMENT
OF THE CASE
This
is a contested case brought by Petitioner Ricky Mitchell (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
November 13, 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 March 27, 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 pled guilty to assault and battery of a
high and aggravated nature for an incident that occurred in May of 2000.
Petitioner was working as a DJ at a gentleman’s club when a brawl between
patrons, dancers, and other club employees broke out. Specifically, Petitioner
was involved in an altercation with a man on the second level of the club which
resulted in the man receiving several injuries.
Petitioner
does not dispute the fact that he pled guilty to this offense. He further
recognizes that what he did was wrong. He currently works as a loan marketer
for First Premier Mortgage and holds a part time job at Zaxby’s. He has worked
hard to rehabilitate his character. For instance, Petitioner now attends
church on a regular basis, is a member of the Greenville Jaycee’s and avoids
the use of alcohol. Additionally, Petitioner’s employer at First Premier
Mortgage, Erick Guest, testified that Petitioner is of good moral character, is
a hard worker, and that he has a genuine passion for helping people.
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. 2007), S.C. Code Ann. § 40-58-55(A) (Supp. 2007), and S.C.
Code Ann. § 1-23-600(B) (Supp. 20057.
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. 2007)
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 denied
Petitioner’s license because he was convicted of a felony and a crime of moral
turpitude. ABHAN however is not a felony, but rather a common law
misdemeanor. Morris v. State, 371 S.C. 278, 639 S.E.2d 53 (2006).
Furthermore, ABHAN does not “invariably constitue a crime of moral turpitude,
since that determination depends on the facts of each particular case.” State
v. Bailey, 275 S.C. 444, 446, 272 S.E.2d 439, 440 (1980) (per curiam). 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). 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). In instances
involving a conviction for ABHAN that determination is made by examining “the
inherent nature of the crime as defined by law and particularized by the
indictment.” 272 S.E.2d at 440.
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.” Here, Petitioner explained that he was originally indicted for
ABHAN and thus he did not plead guilty to a lesser offense involving more
wanton circumstances. It is also pertinent that the indictment for ABHAN was
based upon injuries that occurred as a result of a melee that
occurred in a bar, rather than facts that suggest a depravity of the
private and social duties he owed to his fellow man. There is also no
evidence of a dishonest nature. Moreover, this crime occurred more than eight years ago and
since that time Petitioner has made significant strides in becoming a person that
commands the “confidence of the community.” In light of the above facts, I am
persuaded that Petitioner is of sufficient character to receive a mortgage
originator license.
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
November 20, 2008
Columbia, South Carolina
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