ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
Allen Johnson 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 June
28, 2006 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 Respondent’s decision to deny the Petitioner this license shall stand.
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 his application, Supplemental Form O for an
originator’s license, he 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. In
spite of that assertion, Petitioner’s arrest record, Respondent’s Exhibit #2,
shows numerous convictions for Fraudulent Checks in 2000, 2001, 2003 and 2004.
4. The
Petitioner testified that he had spoken with his manager about the question on
the form and was told that he could answer “no” because he had no felony
convictions. The Petitioner testified that there was no definition of “moral
turpitude” or a list of crimes involving fraud on the application he
completed. He was not aware that a “bad check” was a crime of moral turpitude.
Finally, he testified that he feels he has paid his debt to society
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 fraudulent check charges from 2000 through 2004, which is are offenses specifically included in S.C.
Code Ann. § 40-58-55(A)(3) (2005). The Petitioner’s
convictions were within the last ten years, pursuant to S.C. Code Ann. §
40-58-55 (2005), and appear to show a pattern of disregard for the courts and
financial institutions. Although, S.C. Code Ann. § 40-58-55 is a permissive,
not mandatory, statute in that the Department “may refuse to license an
applicant,” in this case, that denial appears proper. The Petitioner argued
that he is in a position of trust in his current job and that he has done
nothing to violate that trust. His past convictions, however, show that he has
a repeated pattern of violating trust.
"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 be
strictly construed against the Petitioner.
ORDER
Based upon the above
Findings of Fact and Conclusions of Law, it is hereby ORDERED that
Petitioner Allen Johnson is not entitled to an Originator License for Mortgage
Broker Company Originators and that the denial of the South Carolina Department
of Consumer Affairs shall stand.
AND IT IS SO
ORDERED.
_________________________________
Carolyn
C. Matthews
SC
Administrative Law Judge
August 8, 2006
Columbia, South Carolina |
