April 7, 1983

Mr. Harry Christianson 
Secretary 
Department of Commerce 
State Capitol 
Pierre, South Dakota 57501

Opinion No. 83-15

WHEN PERSON WITH FELONY RECORD CAN BE LICENSED INSURANCE AGENT

Dear Mr. Christianson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

SDCL 58-30-23 provides in part that 'the director of the division of insurance may, at his discretion waive the restriction relating to conviction of a felony provided five years have elapsed since completion of the term or other punishment for conviction.'  A person has applied for an insurance agent's license but was convicted five years ago of falsifying a financial report, a felony.  That person was neither fined nor imprisoned, but was sentenced to five years' probation.

Based on the above facts, you have asked the following question:

QUESTION: 

Does SDCL 58-30-23 allow the director of the Division of Insurance to begin counting the five-year period from the date of conviction, or does this statute require the director to start counting the period from the day the sentence is finally served?

SDCL 58-30-23 is set forth in full as follows: 

An individual licensed as an agent shall be trustworthy, and be of good character and reputation as to morals, integrity, and financial  responsibility, and shall not have been convicted of a felony or of any crime involving moral turpitude; provided, however, the director of the division of insurance may, at his discretion waive the restriction relating to conviction of a felony provided five years have elapsed since completion of the term or other punishment for conviction.

On the basis of this statute, the director of the Division of Insurance has no choice but to commence the counting of the five-year period from the date the applicant for an insurance license has completed his five-year probationary period for being convicted of falsifying a financial report.  The statute is clear and unambiguous on that point.  There also can be no doubt that a sentence of probation is a term of 'punishment' as is required by SDCL 58-30-23.

Respectfully submitted,

Mark V. Meierhenry
Attorney General