ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This is a contested case brought by Petitioner
Chris Manley 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 July 13, 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 Petitioner should be granted his 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 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. Petitioner’s
arrest record, Respondent’s Exhibit #2, shows convictions for Fraudulent Checks
in 2003 and 2004. The Petitioner testified that he was running a family
restaurant in Anderson, SC and was trying to keep the restaurant open. At that
time, some of the checks bounced due to the financial situation with the
restaurant. The Petitioner stated that someone had offered to loan money to
the restaurant and then did not. Mr. Johnson testified that he paid the
required fines, penalties and restitution and is trying to move on with his
life.
4. The
Court found the Petitioner to be a credible witness. He testified that he plead
guilty to the charges and paid restitution on all of the checks. 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. He sought leniency from the court.
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 the fraudulent check charges from 2003
and 2004, which is an offense specifically included
in S.C. Code Ann. § 40-58-55(A)(3) (2005), along with a conviction for
driving under the influence and disregarding a stop sign in 2003. These
convictions would not fall within the list of crimes in S.C. Code Ann. §
40-58-55(A)(3) (2005). Although the Petitioner’s fraudulent
check convictions were 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 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 Chris Manley is entitled to an Originator License for Mortgage
Broker Company Originators.
AND IT IS SO
ORDERED.
_________________________________
Carolyn
C. Matthews
SC
Administrative Law Judge
August 8, 2006
Columbia, South Carolina |
