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OAH Docket No. 7-1000-19696-2 Commerce File No. NO2801629/BD |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
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In the Matter of the Notary Public Commission Application of Melissa Edmond f/k/a Melissa Boehlke |
FINDINGS OF
FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came on
before Administrative Law Judge Richard C. Luis for hearing on July 10, 2008,
at 9:30 a.m., at the Office of Administrative Hearings,
Christopher M. Kaisershot, Assistant Attorney General, 1200
Terry Duggins. Duggins Law Firm LLC,
STATEMENT OF ISSUES
The issue in
this case is whether the Department’s denial of the Respondent’s application
for a commission as a notary public should be affirmed for the following
reasons:
1. Respondent
pleaded guilty or was convicted of a felony, gross misdemeanor, or misdemeanor
involving moral turpitude, and otherwise engaged in acts or practices that
demonstrate she is untrustworthy, financially irresponsible, or otherwise
unqualified to act as a notary public within the meaning of Minn. Stat. §§
45.027, subd. 7(a)(4), and 359.12 (2006).
2. Respondent
provided false, misleading, or incomplete information on her notary public
commission application in violation of Minn. Stat. §§ 45.027, subd. 7(a)(4),
359.01, subd. 4, and 359.12 (2006).
3. Minnesota Statutes Chapter 364 (2006) does
not preclude disqualification from licensure as a notary public because her
conviction was based on underlying misconduct that is grounds to censure,
suspend, or revoke a notary public commission under Minn. Stat. §§ 45.027,
subd. 7 and 359.12 (2006).
The Administrative Law Judge concludes that, while the Respondent’s conviction is directly related to the duties of a notary public, the Respondent has shown competent evidence of sufficient rehabilitation and present fitness to perform the duties of a notary public within the meaning of Minn. Stat. §§ 45.07, subd. 7, and 364.03, subd. 3. The Administrative Law Judge recommends that the denial of the application be reversed and that a Notary Public Commission be issued to the Respondent.
Based on the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
In 2000, Respondent was charged with felony financial card
fraud.[1] Respondent charged $1,433.96 on her mother’s
credit card, without permission.
Respondent was placed in a diversionary program that afforded the
opportunity to have the charge dismissed on meeting the program’s conditions. The charge was dismissed on March 5, 2003,
with the Respondent having made restitution on the amount that she owed.[2]
2.
On February 15, 2001, Respondent was charged in a criminal
complaint with felony theft. Respondent
had stolen $12,280.97 from her employer in
3.
Respondent entered a guilty plea to felony theft and was
sentenced to thirty days in jail, with ten years of probation and a requirement
that she make restitution for the full amount stolen from her employer.[4]
4.
After serving the jail term, Respondent was placed on
unsupervised probation. Subsequently, Respondent
was arrested for driving after having consumed alcohol. Respondent’s probation was not revoked for
her drinking. Abstaining from alcohol
was removed as a condition for Respondent’s continued probation.[5]
5.
While meeting the requirements of the diversionary program,
Respondent began volunteering for Lifetrack Resources at the
6.
Respondent is married, with a child. She also cares for two other dependent
relatives.[7]
7.
Respondent resumed her education and began paralegal
training from the Minnesota School of Business Globe University. The Legal Coordinator of that program, an
attorney, wrote a letter of recommendation for Respondent that praised her work
skills and noted her fitness as a paralegal.[8] Respondent has shown academic excellence
while in school.[9]
8.
Respondent has been working as a paralegal for the Duggins
Law Firm since January 2006, with time off for maternity leave. Her job duties include the handling of bank
deposits. Respondent completed her
coursework for a bachelor’s degree in paralegal studies at
9.
On January 30, 2008 and February 19, 2008, Respondent had probation
violation hearings regarding the status of her restitution payments.[11]
10.
On April 4, 2008, Respondent submitted an application for a
notary public commission to the Department. Included in the application is the question:
“Have you ever been charged with, or convicted of, or been indicted for, or
entered a plea to, any criminal offense (felony, gross misdemeanor or
misdemeanor), in any State or Federal Court?” Respondent answered affirmative to this
question. The application then calls for
the Applicant to “attach an explanation including the specific dates, charges,
resolution, attach copies of legal documentation and complete the BCA form”.[12]
11.
Respondent attached a copy of the Complaint and the Report
of Disposition of the felony theft conviction in 2001. Respondent did not mention the dismissed
charge from 2000. Respondent attached an
explanation of her situation which states, in its entirety:
In 2001 I was
convicted of Felony Theft. The incident
happened in early 2000. I made a plea
agreement to pay restitution, do 30 days of STS and a $50 fine. I am still paying restitution and am current
on restitution payments.[13]
12.
On April 4, 2008, the Department notified the Respondent
that her application was being denied due to the 2001 conviction and the lack
of documentation on the status of her probation. The letter notifying the Respondent of the
denial also noted that the decision could be appealed.[14]
13.
On April 29, 2008, the Respondent submitted her request to
appeal the denial of her application.
Accompanying the request was the only documentation that the Respondent
had received regarding the status of her probation, which was a notice for a
single orientation session.[15]
14.
On May 28, 2008, the Department issued the Notice and Order for Hearing that initiated this
contested case proceeding.
15.
The Respondent has satisfied the judgment against her
awarded to her former employer’s insurer.[16] Respondent
negotiated the final amount to be paid in restitution. Any payment not made by the time of the
hearing is in escrow, awaiting payment.[17]
Based
on the Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner are
authorized to consider the Respondent’s application under Minn. Stat. §§ 14.50,
45.011, 45.027, and 359.12.
2.
The Department has complied with all procedural
requirements.
3.
Under Minn. Stat. § 359.01, the Governor commissions notaries
public. The Minnesota Secretary of State
receives applications for appointments and commissions and keeps a register of
those persons appointed and commissioned as notaries public. The application provision provides:
Subd. 4.
Application. The secretary of state shall prepare the application form for a
commission. The form may request personal information about the applicant,
including, but not limited to, relevant civil litigation, occupational license
history, and criminal background, if any. For the purposes of this section,
"criminal background" includes, but is not limited to, criminal
charges, arrests, indictments, pleas, and convictions.
4.
The standards of conduct for notaries are set out in Minn.
Stat. § 359.12, which provides:
Every notary
who shall charge or receive a fee or reward for any act or service done or
rendered as a notary greater than the amount allowed by law, or who dishonestly
or unfaithfully discharges duties as notary, or who has pleaded guilty, with or
without explicitly admitting guilt, plead nolo contendere, or been convicted of
a felony, gross misdemeanor, or misdemeanor involving moral turpitude, is
subject to the penalties imposed pursuant to section 45.027, except that a
notary may be removed from office only by the governor or the district court.
The commissioner has all the powers provided by section 45.027 and shall
proceed in the manner provided by that section in actions against notaries.
5.
Under
Subd. 7.
Actions against licensees. (a) In addition to any other actions authorized by
this section, the commissioner may, by order, deny, suspend, or revoke the
authority or license of a person subject to the duties and responsibilities
entrusted to the commissioner, as described under section 45.011, subdivision
4, or censure that person if the commissioner finds that: (1) the order is in
the public interest; and (2) the person has violated any law, rule, or order
related to the duties and responsibilities entrusted to the commissioner; or
(3) the person has provided false, misleading, or incomplete information to the
commissioner or has refused to allow a reasonable inspection of records or
premises; or (4) the person has engaged in an act or practice, whether or not
the act or practice directly involves the business for which the person is
licensed or authorized, which demonstrates that the applicant or licensee is
untrustworthy, financially irresponsible, or otherwise incompetent or
unqualified to act under the authority or license granted by the commissioner.[19]
6.
Respondent’s conduct in 2000, resulting in a charge of
felony financial card fraud, and in 2001, resulting in a felony theft
conviction, are related to the standards of conduct for notarial acts,
particularly regarding honesty and the faithful discharge of notarial duties.
7.
Respondent’s conduct, standing alone, is a sufficient basis
to deny the application for a notary commission license under Minn. Stat. §
359.01. When considered in light of
Respondent’s subsequent conduct, she has demonstrated that she is fit to perform
the duties of a notary public. The
record in this matter does not demonstrate that the Respondent is “untrustworthy,
financially irresponsible, or otherwise incompetent or unqualified to act under
the authority or license granted by the commissioner.”[20]
8.
Respondent failed to note the dismissed charge from 2000 on
her application for a notary commission.
This omission was due to a good faith belief that the dismissed charge
was no longer on Respondent’s record.
Respondent did not omit the information to avoid consideration of that
conduct in considering Respondent’s application.
9.
Under Minn. Stat. § 45.027, subd. 10, “Chapter 364 does not
apply to an applicant for a license or to a licensee where the underlying
conduct on which the conviction is based would be grounds for denial, censure,
suspension, or revocation of the license”
10.
A notary commission is not a “license” within the meaning of
Minn. Stat. § 45.027, subd. 10.
11.
Through her subsequent conduct, Respondent has demonstrated competent
evidence of sufficient rehabilitation and present fitness to perform the duties
of a notary public, within the meaning of Minn. Stat. § 364.03, subd. 3.
12.
Issuing a notary
commission to Respondent is in the public interest.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED: that Respondent’s application for a notary commision be GRANTED.
Dated: August 6, 2008.
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
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Administrative Law Judge |
Reported: Digitally Recorded, No Transcript Prepared
This
Report is a recommendation, not a final decision. The Commissioner of Commerce will make the
final decision after reviewing the record and may adopt, reject or modify these
Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Commissioner’s
decision shall not be made until this Report has been available to the parties
to the proceeding for at least ten (10) days.
An opportunity must be afforded to each party adversely affected by this
Report to file exceptions and present argument to the Board. Parties should contact Glenn Wilson, Commissioner,
Department of Commerce, Attn: Sue Jensen,
Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law. If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. In this matter, such an outcome results in the application for a notary commission to be granted. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
The
Department raised two issues regarding the information on Respondent’s
application. One issue was not
mentioning the dismissed charge from 2000.
The other issue was the status of Respondent’s probation, including the
existence of a judgment for restitution.
The evidence presented at the hearing shows that Respondent did not
attempt to mislead the Department about her background or her status.
Respondent
committed two serious offenses demonstrating moral turpitude. Taken alone, such conduct supports denial of
her application for a notary commission.
The standard for issuance of a notary commission does not disqualify an
applicant merely for a past offense.
Under the relevant statute, Respondent must be shown to be “untrustworthy,
financially irresponsible, or otherwise incompetent or unqualified to act under
the authority or license granted by the commissioner.”[21] Respondent is
entitled to demonstrate that she is now fit to carry out the authority granted
under a notary commission, in spite of her earlier conduct.
Respondent’s
conduct since her conviction in 2001 has only one blemish. She engaged in driving while under the
influence of alcohol. Respondent
acknowledged her wrongful conduct. The
DUI does not involve moral turpitude and does not have any bearing on fitness
as a notary.[22]
Respondent has presented compelling evidence
regarding her subsequent education, employment, compliance with her probation,
and overall moral improvement. This
evidence is sufficient to meet her burden under Minn. Stat. § 45.027, subd. 7
to show that she if fit to perform the duties of a notary public. Similarly, Respondent has met her burden
under Minn. Stat. § 364.03 to show “sufficient rehabilitation and present
fitness to perform … the occupation for which the license is sought.” The Department attempted to dismiss
Respondent’s demonstration of current fitness and rehabilitation as merely
taking steps toward that goal. The
Department has not shown any reason why this evidence of rehabilitation should
be disregarded in relation to Respondent’s application for a notary commission. Respondent, having met her burden, has shown
that she should be granted a notary commission.
R.C.L.
[1] Exhibit 6.
[2] Testimony of Melissa Edmond.
[3]
Exhibit 1; Testimony of
[4] Testimony of Bruce Duncan.
[5]
Testimony of
[6]
Exhibit 10; Testimony of
[7]
Testimony of
[8] Exhibit 11.
[9] Exhibits 14 and 15.
[10]
Testimony of
[11] Exhibit 4.
[12] Exhibit 1.
[13] Exhibit 1.
[14] Exhibit 2.
[15] Exhibit 3.
[16] Exhibit 8.
[17] Exhibit 9.
[18]
Testimony of
[19]
[20]
[21]
[22]
Respondent’s probation was not revoked for this conduct, and the Court amended
the probation conditions to clarify that only illegal drug use would constitute
a probation violation. Testimony of