ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This is a contested case brought by Petitioner Edward J. Dressendofer 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 October 5, 2005 at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina.
Respondent was present at the hearing. However, Petitioner, after filing a Notice of Request For Contested Case Hearing on July 12, 2005, and after receiving notice from the Court, did not appear at the hearing and did not notify the Court that he would not be appearing. After waiting approximately fifteen (15) minutes for Petitioner to appear, the Court commenced this hearing. The Department then presented its case.
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 Dressendofer, in completing his 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 “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?”
3. Petitioner’s arrest record (Respondent’s Exhibit #1) and criminal conviction record (Petitioner’s Exhibit #2) show two arrests and convictions within the last ten years for malicious injury to personal property.
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.
4. “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), citing State v. Ball, 292 S.C. 71, 354 S.E.2d 906 (1987); State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986). “Malicious destruction of personal property involves the willful, unlawful, and malicious destruction of the personal property of another.” Id., citing S.C. Code Ann. § 16-11-510 (1985). We hold it is a crime of moral turpitude. Id. at 312, 364 S.E.2d at 202.
Accordingly, since Petitioner has two convictions within the last ten years for malicious injury to personal property, and since this crime has been deemed a crime of moral turpitude by the South Carolina Supreme Court, pursuant to S.C. Code Ann. § 40-58-55 (2005), the Department’s refusal to license Petitioner was proper.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that Petitioner Dressendofer is not entitled to an Originator License for Mortgage Broker Company Originators.
AND IT IS SO ORDERED.
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John D. McLeod
Administrative Law Judge
October 10, 2005
Columbia, South Carolina
As set forth above, Petitioner Dressendofer did not appear at the hearing and did not notify the Court that he would not be appearing. After waiting approximately fifteen (15) minutes for Petitioner to appear, the Court commenced this hearing. ALC Rule 23 provides:
The administrative law judge may dismiss a contested case or dispose of a contested case adverse to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the judge or fails to comply with any interlocutory order of the administrative law judge. Any non-defaulting party may move for an order dismissing the case or terminating it adversely to the defaulting party.
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