STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL PACINO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1690

)

BOARD OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held on the above matter by H. E. Smithers on November 14, 1980, at Miami, Florida. Stuart H. Sobel represented the Petitioner and Linda Lawson represented the Respondent.

This action commenced by the receipt by the Division of Administrative Hearings of a hearing request on September 16, 1980 by Paul Pacino (Petitioner or Pacino) against the Board of Real Estate (Respondent or Board). Petitioner alleging that he has demonstrated his honesty, truthfulness, trustworthiness and good character (and good reputation for fair dealing) as required by Section 475.17, Florida Statutes (1979) and the Board should not have denied his application by order dated June 23, 1980. The issue is whether a real estate salesman's license should be issued to the Petitioner.

The record consists of the testimony of the Petitioner and two character witnesses for whom the Petitioner had worked, and Exhibits P1-3 and R1 received in evidence.

FINDINGS OF FACT

1. Paul Pacino came to the United States from Ecuador in 1967, and was naturalized and changed his name from Telmo Arboleda in April 1973. He is 28 years of age, married with two children and has lived with his parents since coming to this country. He has been employed as a clerk with the U.S. Public Health Service since July 1980.

   
   

2. The Petitioner has been arrested for various crimes on nine dates from May 1973 to December 1978 as follows:

   
   

   5/30/73 Robbery

   11/7/73 Possession of stolen vehicle and buying stolen property

   4/8/74 Conspiring to commit grand larceny 2/6/75 Two cases of conspiring to commit

   a felony

   2/9/76 Possession of marijuana

   2/19/76 Forgery, uttering forged instrument, attempt to commit felony, obstructing a police officer and

   receiving stolen property 7/21/78 Petit theft

   11/1/78 Petit theft

   12/22/78 Possession of controlled substance

   
   

   His only conviction was of a misdemeanor on July 16, 1976; this February 9, 1976 case began as a traffic violation and ended with arrest for possession of one marijuana cigarette. Although Pacino could not relate any details or reasons for the many arrests, he admitted to them on his application and during the hearing.

   
   

3. Petitioner stated the reasons for his arrest problems have been corrected and he only wishes to make a living for his family selling real estate. This is credible as the witness answered questions fairly and honestly without hesitation or equivocation.

   
   

4. A medical doctor and a business acquaintance, both friends of the family, attested to Petitioner's good reputation in the community for honesty, trustworthiness and fair dealing since 1978.

   
   

   CONCLUSIONS OF LAW

   
   

5. Respondent contends that Petitioner's arrest record was a proper basis for the Board to deny the license citing Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA, 1977) . The Court in that case said at 1105:

   
   

   Moral character. . . means not only the

   ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes

   the qualities generally acceptable to the populace for positions of trust and confidence.

   . . [A]cts of indiscretion wherever committed do not necessarily establish bad moral character. . .

   
   

6. Undoubtedly the Petitioner was mixed up with some of the wrong people in the 1973-1978 period. However, unlike Zemour, supra, Petitioner's improprieties did not involve the same activity for which the license was sought nor did they involve deceit or fraud. It should further be noted that Petitioner's real estate salesman's activities would be subject to the supervision of a broker.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Paul Pacino be granted and that the Board

of Real Estate issue a real estate salesman's license to Paul Pacino.

DONE AND ENTERED this 4th day of December, 1980, in Tallahassee, Florida.

H. E. SMITHERS Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1980.

COPIES FURNISHED:

Linda Lawson, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Stuart H. Sobel, Esquire 744 North West 12th Avenue Miami, Florida 33136

C. B. Stafford Executive Director

400 West Robinson Avenue Orlando, Florida 32801

Docket for Case No: 80-001690

Orders for Case No: 80-001690