CHARLES A. PANTINO, )
vs. ) CASE NO. 84-0982
Respondent. )
A final hearing was held in this case in Melbourne on July 11, 1988. The issue is whether respondent, Florida Real Estate Commission, should grant the application of petitioner, Charles A. Pantino (Pantino), for licensure as a real estate salesman. Specifically, the issue is whether Pantino is "honest, truthful, trustworthy, and of good character and [has) a good reputation for fair dealings," as required by Section 475.17(1)(a), Florida Statutes (1983), for licensure.
For Petitioner: Charles A. Pantino, pro se
Charles A. Pantino (Pantino) is 38 years old, divorced, and the father of two children, ages six and eight.
On or about August 31, 1983, Pantino filed an application for licensure as a real estate salesman.
In response to question six on the addendum to real estate salesman's application (to be answered instead of question six on the application form) whether Pantino had ever been convicted of a crime, found guilty, or entered a plea of guilty, Pantino responded that:
On May 17, 1969, in Riverhead, New York, he plead guilty to possession of a weapon and was placed on three years probation which was successfully completed; and
On April 19, 1982, in Titusville, Florida, he plead guilty to possession and sale of cocaine, possession of a machine gun, and receipt of stolen property, and was placed on ten years probation.
Pantino omitted to include, in his answer to question number six, that he also plead guilty to, and was adjudicated guilty of, trafficking in cocaine in violation of Section 893.135(1)(b)1, Florida Statutes, at the same time that he plead guilty on the other charges included in his answer to question number six referred to in paragraph 3(b).
Pantino did not include in his answer to question number six charges for which he was arrested, but not convicted, arising out of the drug charges, but the question did not call for this information.
In response to requests for admissions propounded during this proceeding, Pantino on or about April 16, 1984 explained that although he was arrested for criminal possession of a weapon and dangerous instrument in 1969, he actually was convicted for "reckless dangerment 2nd degree and possession of a weapon as a misdemeanor".
In response to other requests for admissions, Pantino on or about April 16, 1984, truthfully answered that he was arrested for trafficking in cocaine in 1981, as well as for the other charges already revealed as convictions on his application.
The Request For Admissions filed in this proceeding sought an admission that Pantino was convicted of, as well as arrested for, trafficking in cocaine. Pantino's response did not mention his conviction for trafficking in cocaine. However, Pantino also omitted to specify that he was convicted of, as well as arrested for, the other charges included in his response to the Request For Admissions, all of which he already had listed as convictions in his answer question number six in the original application.
Pantino was not being untruthful in giving the information included on his application or in answering the Request For Admissions. He had no intent to deceive the Commis- sion. Rather, Pantino inadvertently overlooked some of the less severe charges as he informed the Commission concerning more serious charges or, in the case of the Request For Admissions, he simply misread the request and did not realize that it was ad- dressed to convictions as well as arrests.
The more serious blemishes on Pantino's record arise out of a drug transaction that occurred in 1981. At the time, Pantino needed money to open an ice cream parlor on the beach near where he lives. He also was a cocaine abuser at the time. An acquaintance put him in touch with an undercover law enforcement officer for purposes of a drug transaction.
At the time of the drug transaction, Pantino allowed the undercover agent to place an M16 rifle, which the undercover agent told Pantino had been stolen, in the trunk of Pantino's car. This resulted in Pantino's arrest and conviction for possession of a machine gun and grand theft by buying and receiving stolen property.
Pantino was arrested after selling the undercover agent some cocaine. This resulted in Pantino's arrests and convictions for sale and possession of a controlled substance and trafficking in cocaine.
On or about September 1, 1982, Pantino entered his guilty plea and was placed on probation for ten years and ordered to attend psychiatric counseling.
Since Pantino's conviction, he has continued to attend psychiatric counseling and, since December, 1983, has seen a clinical psychologist for maintenance of his mental health. No testimony or evidence from either of these professionals upon which a finding of fact could be based was presented at final hearing. 1/ Nor did Pantino's probation officer testify.
Pantino swears that his involvement in the drug transaction was an aberration and that his true character is good, honest, and trustworthy. He promises to be a law abiding and productive citizen in the future. Pantino's business deal- ings since approximately the time of his conviction for the drug offenses in September 1982, have been gentlemanly, honest, above- board, and professional.
Because of his contact with Pantino after September 1982, and because he believes Pantino's promise not to violate the law in the future, Mr. Melvin Ezell, president and owner of Compass Points, Inc., a corporate real estate broker, expressed his willingness to hire Pantino as a real estate salesman in his Indialantic office.
CONCLUSIONS OF LAW
Section 75.17(1)(a), Florida Statutes (1983), provides in pertinent part:
(1)(a) An applicant for licensure who is a natural person shall be...honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing...[I]f the applicant has been
guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this chapter had the applicant then been registered, the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission
that the interest of the public and investors will not likely be endangered by the granting of registration.
In addition, Section 475.25(1), Florida Statutes (1983), provides in pertinent part that the Commission may deny an application if it finds that the applicant:
(f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the
state shall be admissible as prima facie evidence of such guilt.
* * * * * *
(p) Has failed to inform the commission in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Section 475.25(1) also authorizes the Commission to suspend or revoke a license if the Commission finds that a licen- see has done any of the acts set forth in its subparagraphs.
There is no question but that Pantino is guilty of conduct that would have been grounds for suspension or revocation under Section 1475.25(1)(f) had he been a licensee. Under Section 475.17(1)(a), the issue becomes:
Whether "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient...the interest of the public and Investors will not likely be endangered" if Pantino's application is granted; and
Whether Pantino is "honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing".
The burden of proof is on Pantino. J. W. C. Company, Inc. v. Department of Transportation, 396 So.2nd 778 (Fla. 1st DCA 1981). A real estate salesman places himself in a position of trust and in a position to be tempted by funds and property placed in trust in his hands by his clients. It is therefore important, particularly where an individual has in the relatively recent past succumbed to a similar temptation, to hold the individual to the legal burden of proof.
Under the facts of this case, Pantino did not meet his burden of proof. There was no testimony from his psychiatrist, his psychologist, or his probation officer. In addition, only two years have elapsed since his conviction. It is not found or concluded that Pantino is not honest, truthful, trustworthy, of good character and of good reputation for fair dealing, or that it is likely that the interest of the public and investors will be endangered if Pantino's application is granted. It is simply concluded that Pantino has not presented sufficient proof to establish that the contrary is the case at this time. It can be hoped that, with passage of time and sufficient evidence, Pantino will be able to prove, on another occasion, that his sworn testimony and promises are true and that he is indeed worthy of licensure.
Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order DENYING Charles A. Pantino's application for licensure as a real estate salesman.
RECOMMENDED this 29th day of October, 1980, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.
1/ Pantino offered Petitioner's Exhibits 1 through 10, received in evidence, as corroborative of non-hearsay evidence otherwise presented at final hearing.
However, much of the contents of those exhibits was the only evidence of the matters asserted in them, as reflected in these Findings of Fact.
Mr. Charles Pantino
Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900
