ORDERS:
ORDER
STATEMENT
OF THE CASE
This
is a contested case brought by Petitioner Frederick J. Cole (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 February
5, 2009, 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 17, 2008, to the Department. In
completing his application Petitioner submitted a sworn statement that all
information contained in the application is true, current and correct.
Petitioner answered “NO” 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?”
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 had pled guilty to Assault and Battery of a High and
Aggravated Nature and Indecent Liberties with a Female on May 1, 2008.
Petitioner
was given the opportunity to testify and explain the facts surrounding his
conviction. However, he did not offer any explanation of the circumstances
surrounding the crime or any reasoning as to why it should not be considered a crime
of moral turpitude.
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. 2008), S.C. Code Ann. § 40-58-55(A) (Supp. 2008), and S.C.
Code Ann. § 1-23-600(B) (Supp. 2008).
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. 2008). 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. 2008). 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. 2008)
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, Petitioner has a
conviction of Assault and Battery of a High and Aggravated Nature and Indecent
Liberties with a Female. This crime potentially involves moral turpitude.
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). Assault and Battery of a High and Aggravated Nature may or may not
be a crime of moral turpitude, depending on the circumstances surrounding the
crime. State v. Bailey, 275 S.C. 444, 272 S.E.2d 439 (1980). In Matter
of Lee, 313 S.C. 142, 437 S.E.2d 85, (1993) a public official used his
position to obtain sexual favors. The court held “[i]n our opinion, these
facts demonstrate a vileness and baseness which are sufficient to make them
crimes of moral turpitude.” Id. at 86.
Petitioner
had the burden of proof and was specifically given the opportunity to present
evidence as to why his convictions for Assault and Battery of a High and
Aggravated Nature and Indecent Liberties with a Female were not crimes of moral
turpitude; however he did not offer any evidence or testimony concerning the
facts of those crimes. 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.” Petitioners criminal convictions certainly create
a reasonable question as to whether he has followed his duty to his fellow man.
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
March 16, 2009
Columbia, South Carolina
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