ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter is before me pursuant to a request
for a contested case hearing filed by Michael E. Miller (Petitioner).
Petitioner challenges the decision
by the South Carolina Department of Consumer Affairs (Department) to deny his
application for an Originator License for Mortgage Broker Company Originators
based upon three fraudulent check convictions.
A hearing was held before me on August 2, 2006 at the
offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina. Both parties appeared at the hearing. Evidence was introduced and
testimony was given. After carefully weighing all the evidence, I find that
Petitioner’s application for an Originator License should be granted.
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 the
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 timely given to both
parties.
2. Petitioner
is a real estate agent licensed by the South Carolina Real Estate Commission.
He currently works for Realty Executives, a real estate agency located in Summerville, South Carolina. He has been licensed as a real estate agent for approximately
two months. Prior to becoming licensed as an agent, Petitioner worked in the
automotive industry for approximately twelve years.
3. In
October 2005, Petitioner submitted an application for an Originator License for
Mortgage Broker Company Originators. In completing his application, on Supplemental
Form “O,” Petitioner answered “NO” to the question on the form, “Have you ever
been convicted of a felony or of an offense involving breach of trust, moral
turpitude or dishonest dealings within the last ten years?”
4. Petitioner’s
arrest record from the South Carolina Law Enforcement Division (SLED) shows three
convictions within the last ten years for fraudulent checks. All three occurred
in 1997. Petitioner did not disclose the convictions on his application because
he misconstrued the question as to only include felony convictions.
5. The
three fraudulent checks totaled $48.07. At the time he wrote the checks, Petitioner
was experiencing monetary problems due to his job situation. After being
served with arrest warrants for the three check charges, Petitioner appeared in
court at the assigned time and had the funds with him to make restitution.
However, he was not aware that he also needed to bring an additional $75 for
court costs. After explaining to the court that he did not have the additional
$75 with him and requesting to leave to obtain the funds and return to court
with them, he was jailed overnight. The following day, Petitioner was released
from jail after he obtained and paid the court costs of $75 and made
restitution of $48.07.
6.
Petitioner has not had any other arrests or convictions.
7. Petitioner
disclosed the three convictions on his application for licensure as a real
estate agent with the South Carolina Real Estate Commission.
CONCLUSIONS
OF LAW
Based upon the above
findings of fact, I conclude the following as a matter of law:
1. S.C. Code
Ann. §§ 40-58-55 (Supp. 2005), 1-23-310 et seq. (2005), and
1-23-600 (2005) grant jurisdiction to the Administrative Law Court to hear this
contested case.
2. Specifically,
S.C. Code Ann. § 40-58-55(A)(3) (Supp. 2005) provides:
Upon
request for a contested case hearing by a person whose application for a
license or renewal of a license has been denied, the Administrative Law Court
may review the determination by the department 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….
3. Furthermore,
S.C. Code Ann. § 40-58-60(A) (Supp. 2005) states:
Upon the filing of an application for a
license, if the department finds that the financial responsibility, experience,
character, and general fitness of the applicant, and of the members if the
applicant is a copartnership, association, or limited liability company, and of
the officers and directors if the applicant is a corporation, 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 license the applicant and issue a license….
4. Petitioner’s three
convictions for writing fraudulent checks, are offenses which involve fraud and
moral turpitude under S.C. Code Ann. § 40-58-55(A)(3) (Supp. 2005). See also State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989). Furthermore,
Petitioner’s failure to disclose these convictions constitutes a withholding of material information in connection with an
application for a license under S.C. Code Ann. § 40-58-55(A)(2)
(Supp. 2005). However, I find that Petitioner did not
intend to mislead the Department in this matter. Petitioner simply misconstrued
the question as to only pertain to felony convictions. Furthermore, the amounts of these checks were minor and Petitioner has
since made restitution for the checks. I conclude that Petitioner should not be
further penalized for his mistake. Petitioner also disclosed these convictions
on his application for his real estate license and did not experience any
problems obtaining his licensure.
Accordingly, I find that Petitioner’s application for an
Originator License for Mortgage Broker Company Originators should be granted. Petitioner
has demonstrated financial responsibility, experience, character, and general
fitness sufficient to command the confidence of the community and to warrant
belief that his business will be operated honestly, fairly, and efficiently. See S.C. Code Ann. § 40-58-60 (Supp. 2005).
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that Petitioner’s application for an Originator License for
Mortgage Broker Company Originators is GRANTED.
AND
IT IS SO ORDERED.
_________________________________
Marvin
F. Kittrell
Chief
Administrative Law Judge
August 7, 2006
Columbia, South Carolina |
