ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This is a contested case brought by Petitioner Yukichi D. Latta 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 November 8, 2005 at the offices of the Administrative Law Court (“ALC” or “Court”) in Columbia, South Carolina.
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 Latta, in completing her 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 #2, a copy of which is appended to this Final Order) shows four convictions within the last ten years for fraudulent checks.
4. Petitioner testified that she was unaware of any convictions prior to applying for an Originator’s license. She also testified that these convictions are improperly contained on her record because they resulted from events that occurred after Petitioner’s checkbook was stolen. Petitioner testified that she filed a report with the police after the checkbook was stolen. She also testified that she has attempted to obtain bank records to prove her assertions, however the banks were unable to produce the records because they were destroyed after five years.
5. While this Court is sympathetic with Petitioner, we are bound by the information contained in the SLED Records check.
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. The record shows Petitioner has four convictions for fraudulent checks, which is an offense involving fraud under S.C. Code Ann. § 40-58-55(A)(3) (2005).
Accordingly, since Petitioner has four convictions within the last ten years for fraudulent checks, 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 Latta 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
November 8, 2005
Columbia, South Carolina
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