ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
Andrea E. Cole 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
December 1, 2005 at the offices of the Administrative Law Court (“ALC” or
“Court”) in Columbia, South Carolina. Based on the evidence before me, I find
and order that the Petitioner be granted her license.
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. When
the Petitioner completed her application, Supplemental Form O for an
originator’s license, she submitted a sworn statement that all information
contained in the application was 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, shows a conviction for Fraudulent Checks
in 1998. The Petitioner was nineteen years old at the time and going through a
divorce. She paid restitution and has not had any trouble since 1998.
4. The
Court found the Petitioner to be a credible witness. She testified that there
were a total of three checks written, and she paid restitution on all of them.
Counsel for the Respondent stated that there were a total of five warrants; the
Petitioner pled guilty and paid restitution on all of them. Since then, she has
matured and better understands the ramifications of sound money management. She
has been working with a Real Estate Broker and would like to continue.
6. The
Petitioner introduced without objection a letter written on her behalf by a
former employer that indicated the Petitioner to be a hard working, truthful
individual. In addition, the Petitioner testified that there was no definition
of “moral turpitude” or a list of crimes involving fraud on the application she
completed. She was not aware that a “bad check” was 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. 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. (Emphasis added.)
4. The record shows
Petitioner’s arrest record has only the fraudulent check charges 1998, which is an offense specifically included in S.C.
Code Ann. § 40-58-55(A)(3) (2005). Although the Petitioner’s
conviction was within the last ten years, pursuant to S.C. Code Ann. §
40-58-55 (2005), I conclude that the Department’s refusal to license Petitioner
was not proper. The Petitioner presented several mitigating circumstances for
this conviction and was a credible witness. In addition, S.C. Code Ann. §
40-58-55 is a permissive, not mandatory, statute in that the Department “may refuse to license an applicant.”
"The cardinal rule
of statutory construction is to ascertain and effectuate the legislative intent
whenever possible." Strother v. Lexington County Recreation Comm'n,
332 S.C. 54, 62, 504 S.E.2d 117, 121 (1998). "All rules of statutory
construction are subservient to the one that the legislative intent must
prevail if it can be reasonably discovered in the language used, and that
language must be construed in the light of the intended purpose of the statute." Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 275,
440 S.E.2d 364, 366 (1994). The words of the statute must be given their plain
and ordinary meaning without resorting to subtle or forced construction to
limit or expand the statute's operation. Hitatchi Data Sys. Corp. v.
Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). Marlboro
Park Hospital v. SCDHEC, 257 S.C. ____, 595 S.E. 2d 851 (SC Ct. App.
2004). Here the use of the permissive “may” versus the mandatory “shall” indicates
that the Legislature intended that the application of this statute is
discretionary.
In this matter, I find that the statute should not be
strictly construed against the Petitioner.
ORDER
Based upon the above
Findings of Fact and Conclusions of Law, it is hereby ORDERED that
Petitioner Andrea Cole is entitled to an Originator License for Mortgage Broker
Company Originators.
AND IT IS SO
ORDERED.
_________________________________
Carolyn
C. Matthews
SC
Administrative Law Judge
December 29, 2005
Columbia, South Carolina |
