ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
is a contested case brought by Petitioner William Michael Skinner, Jr. challenging
the decision of the South Carolina Department of Consumer Affairs (Department)
which denied the Renewal of Petitioner’s Mortgage Broker License based on his
application and the South Carolina Law Enforcement Division's (SLED) criminal
records check. A hearing was held before me on March 29, 2006, at the offices
of 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 evidence:
1. Notice of
the time, date, place and subject matter of the hearing was given to Petitioner
and Respondent.
2. 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?"
3. In reviewing
Petitioner's application, the Department obtained a copy of Petitioner's
criminal record from the South Carolina Law Enforcement Division (SLED).
Petitioner's record indicated that he had been convicted of both Petit Larceny
and Shoplifting within the last ten years.
4. Petitioner
contends that he was unaware of the need to report the convictions because he
did not realize that they were classified as crimes of moral turpitude. Petitioner
testified that he provided accurate information regarding his criminal record
on his license application, as he understood the question at the time he
completed the application.
5. Petitioner
has been a mortgage agent for approximately ten (10) years. In particular,
during his employment as a mortgage agent, Petitioner has not been the subject
of any disciplinary actions by licensing or other regulatory agencies.
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. An
application to become licensed as a mortgage broker must be in writing and made
under oath. S.C. Code Ann § 40-58-50 (A) (2005). 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) (2005). If the department does not find that the “character, and
general fitness of [mortgage broker] 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) (2005). S.C. Code Ann. § 40-58-55
(2005) 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 both a
conviction of petit larceny and a conviction of shoplifting within the past ten
years. These crimes involve the elements of fraud and dishonesty. In State
v. Shaw, 328 S.C. 454, 492 S.E.2d 402 (S.C. App. 1997), the South Carolina
Court of Appeals addressed whether a defendant may not be impeached on a prior
shoplifting conviction pursuant to SCRE 609(a)(2). In reaching the decision
that impeachment for shoplifting was proper the Court held:
Common sense tells us that anyone who, in violation of the
shoplifting statute, takes and carries away a storekeeper's merchandise with
intent to deprive the owner of its possession without paying for it, or alters
or removes a label or price tag in an attempt to buy a product at less than its
value, or transfers merchandise from its proper container for the purpose of
depriving a storekeeper of its value acts dishonestly.
492 S.E.2d at 404. The Court
further noted that “dishonesty” was defined as “deceiving, stealing, etc...” Id.
(quoting Webster's New Universal Unabridged Dictionary 525 (Deluxe 2d ed.1983)).
The South Carolina Supreme Court later specifically confirmed the reasoning in Shaw. See State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999).
Additionally,
“[l]arceny involves dishonesty. The fact that the perpetrator of the crime
manifests or declares his dishonesty by brazenly committing the crime does not
make him an honest person.” State v. Al-Amin, 353 S.C. 405, 578 S.E.2d
32 (S.C. App. 2003) (quoting, State v. Goad, 692 S.W.2d 32
(Tenn.Crim.App.1985)). Accordingly, the Court held in Al-Amin that:
To restrict the application of Rule 609(a)(2) only to those
offenses which evidence an element of affirmative misstatement or
misrepresentation of fact would be to ignore the plain meaning of the word
‘dishonesty.’ ‘Dishonesty’ is, by definition, a ‘ “disposition to lie, cheat,
or steal.” ’
Al-Amin at 425 (citations
omitted). See also State v. Vaughn, 268 S.C. 119, 232 S.E.2d 328 (1977)
(a conviction of larceny goes to the credibility of a witness and may be
offered to discredit the witness); State v. Reggen, 214 S.C. 370, 52
S.E.2d 708 (1949). It also does not matter whether the conviction is for grand
larceny or petit larceny. “The fact that the Legislature has seen fit to alter
the amount and character of the punishment for this offense does not change the
nature of the offense, the moral qualities of which remain the same as before.” State v. Laboon, 107 S.C. 275, 92 S.E. 622 (1917)
The crimes of shoplifting
and petit larceny also involve 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
man and man.” State v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263, 263
(1978). Further, “[a]n act in which fraud is an ingredient involves moral
turpitude.” Id. 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). A fraudulent check
conviction pursuant to S.C. Code Ann. § 34-11-60 (1987) is a crime of moral
turpitude. State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989)
(superseded by rule on other grounds). Likewise, larceny is a crime of moral
turpitude. State v. Ball, 292 S.C. 71, 354 S.E.2d 906 (1987) (listing
cases involving moral turpitude crimes to include larceny), overruled on other
grounds by State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990). See also State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994) (Court
assumed conviction for petit larceny was a crime of moral turpitude).
Furthermore, Section
40-58-55 (2) provides that an application may be denied because the applicant
withheld material information or made a material misstatement in connection
with an application for a license or its renewal. Though Petitioner made his
application under oath, he did not disclose the above convictions either in
this application or in any of his prior applications.
The
statutes governing the licensing of mortgage brokers 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.” The
criminal convictions of the Applicant certainly create a reasonable question as
to his honesty. Moreover, though he contends that he was unaware of the need
to report the convictions, he was under a duty to correctly and honestly
complete his application. That duty warranted the effort to ascertain the
knowledge of whether he was under the obligation to report the above crimes. Therefore,
I find Petitioner’s license should be denied because he withheld material
information in connection with an application for a license and has been
convicted of crimes involving moral turpitude and dishonesty within the last
ten years.
ORDER
IT
IS HEREBY ORDERED that the Petitioner’s application for a Mortgage Loan
Broker License is DENIED.
AND IT IS SO
ORDERED.
___________________________
Ralph King
Anderson, III
Administrative
Law Judge
April 4, 2006
Columbia, South Carolina |
