STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE AQUINO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1495

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF REAL )

ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by the Division of Administrative Hearings, before its duly designated Hearing Officer, DONALD R. ALEXANDER, in Fort Lauderdale, Florida, on August 25, 1981.

APPEARANCES

For Petitioner: Steven L. Rishken, Esquire

Suite 203, Dadeland Towers North 9700 South Dadeland Boulevard Miami, Florida 33156

For Respondent: Linda A. Lawson, Esquire

Assistant Attorney General The Capitol LL04 Tallahassee, Florida 32301

BACKGROUND

By application dated February 10, 1981, Petitioner, Diane Aquino, sought licensure as a real estate salesman from Respondent, Department of Professional Regulation, Board of Real Estate. On April 28, 1981, Respondent advised Petitioner her application for licensure was denied on the ground Petitioner had not demonstrated she was "honest, truthful, trustworthy, and of good character, and ... (had) a reputation for fair dealing" as required by Section 475.17(1), Florida Statutes.

Petitioner disputed the allegations of fact and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On May 28, 1981, Respondent forwarded the matter to the Division of Administrative Hearings and requested that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated June 30, 1981, the final hearing was scheduled for July 28, 1981, in Fort Lauderdale, Florida. Upon request of Petitioner, and with the concurrence of Respondent, the matter was rescheduled to August 25, 1981, at the same location.

At the final hearing, Petitioner testified on her own behalf and called Robert L. Quadrino, John LaSala and Thomas G. Harrington as her witnesses.

Respondent offered Respondent's Exhibit 1 which was received into evidence.

The transcript of hearing was filed on September 29, 1981. Proposed findings of fact and conclusions of law were filed by the parties on September 9 and 10, 1981, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.

The issue herein is whether Petitioner is qualified under Subsection 475.17(1), supra, to be issued a real estate salesman license by Respondent.

Based upon the entire record, the following facts are determined.

FINDINGS OF FACT

1. Petitioner, Diane Aquino, is a 33 year old female who currently resides at 1271 North West 23rd Avenue, Pompano Beach, Florida. By application filed on February 10, 1981, Petitioner sought licensure as a real estate salesman by Respondent, Department of Professional Regulation, Board of Real Estate. (Respondent's Exhibit l) Question 7(a) on the application asked whether any judgment or decree of a court has been entered against the applicant in which the applicant was charged with any fraudulent or dishonest dealing. Question 15(a) asked whether the applicant has ever had any registration to practice a profession revoked, annulled or suspended upon grounds of fraudulent or dishonest dealing or violations of law. Question 15(b) asked whether applicant has ever surrendered her registration to practice any regulated profession or occupation. Aquino answered each of those questions affirmatively and included a written statement describing actions taken against her by the Securities and Exchange Commission (SFC) based upon fraudulent activities which occurred in 1976. The application was denied by Respondent by letter dated April 28, 1981, on the ground she had failed to demonstrate that she was "honest, truthful, trustworthy, and of good character, and ... (has) a good reputation for fair dealing." The denial precipitated the instant hearing.

   
   

2. Between September, 1975, and April, 1976, Petitioner was employed by Colonial Securities, Inc. located in Jersey City, New Jersey, in the capacity of a registered sales assistant. Colonial was a broker-dealer registered with the SEC pursuant to Section 15A of the Securities Exchange Act of 1934. In 1977 Colonial, Petitioner and two other Colonial employees were the subject of an administrative proceeding instituted by the SEC charging that they had "willfully violated and willfully aided and abetted violations of Sections 5(a) and 5(c) of the Securities Act in that they, directly and indirectly, made use of the means and instruments of transportation and communication in interstate commerce and of the mails to offer, sell and deliver after sale shares of the common stock of Tucker (Drilling Company, Inc.) when no registration statement was filed or in effect as to such securities pursuant to the Securities Act." (Respondent's Exhibit l). Because of the time and expense involved in contesting these charges, and upon advice of her counsel, Aquino consented to the entry of an order by the SEC that made findings that she had willfully violated and willfully aided and abetted violations of Sections 5(a) and 5(c) of the Securities Act of 1933. The consent order also imposed the following sanctions:

   1. that Aquino be barred from association with

      any broker, dealer or investment company, except in a secretarial capacity; and

      
      

   2. that, after a period of two years she be permitted to apply to become reassociated in non-supervisory and non-proprietary capacity.

   
   

   Aquino is now reapplying for registration with the SEC. In addition to the sanctions imposed by the SEC, Petitioner has been enjoined by a federal court in New York from violating Sections 5(a) and 5(c) of the Securities Act of 1933.

   
   

3. Since the entry of the consent order, Petitioner has owned and operated a laundry and dry cleaner business in Pompano Beach, Florida, and been employed as a sales assistant at a stock brokerage firm in Fort Lauderdale, Florida. Since 1980 she has been the president and 50 percent stockholder of Financial Communications, Inc., a small private investment company located in Pompano Beach, Florida.

   
   

4. In her present business, Petitioner deals with private investors who entrust her with sums of money for different securities and stock investments. One such investor described her as being honest and trustworthy, and stated he is completely satisfied with the business relationship that they enjoy. Another investor attested to Aquino's excellent reputation for honesty and truthfulness. A former employer indicated he is willing to sponsor her reapplication for licensing with the SEC as a registered securities representative. He is also willing to hire her if that application is approved.

   
   

5. Other than the difficulties incurred in 1977, Petitioner has had no other problems that would reflect adversely upon her reputation and integrity.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes (1979).

   
   

7. Subsection 475.17(1), Florida Statutes (Supp. 1980) provides in part:

   
   

   1. An applicant for licensure... shall be...honest, truthful, trustworthy, and of good character and shall have a reputation of fair dealing... If the applicant has been denied registration or a license or has been dis barred, or has registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or sus pended, by this or any other state, any nation, possession, or district of the United States, or any court as lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter or if the applicant has been guilty of conduct

      or practices in this state or elsewhere which would have been grounds for revoking or sus pending 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 shall appear to the board that the intent of the public and investors will not likely be endangered by the granting of registration.

      
      

8. Having had an order entered by the Securities and Exchange Commission which found her in violation of the Securities Act of 1933, Respondent was justified in initially denying the application of Petitioner. However, Subsection 475.17(1), supra, provides that such registration may be granted if by "lapse of time and subsequent good conduct and reputation" the Board determines that the public and investors will not likely be endangered by the granting of the registration.

   
   

9. Here the illicit conduct occurred 5 years ago, giving Petitioner a sufficient time to rehabilitate herself. Since 1976 Petitioner has held a number of responsible positions. She is now engaged in a business that involves handling other people's money on a day-to-day basis. She has done so in a responsible and honest manner. Uncontroverted testimony clearly established she has a reputation for fair and honest dealings. It is apparent that the interest of the public and investors will not likely be endangered by the granting of the application for registration. Accordingly, it is concluded that applicant is qualified for licensure within the meaning of Subsection 475.17(1), supra, and the application should be granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, Diane Aquino, for

licensure as a real estate salesman be GRANTED.

DONE and ENTERED this 29th day of September, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1981.

COPIES FURNISHED:

Steven L. Rishken, Esquire

Suite 203, Dadeland Towers North 9700 South Dadeland Boulevard Miami, Florida 33156

Linda A. Lawson, Esquire Assistant Attorney General The Capitol LL04 Tallahassee, Florida 32301

Diane Aquino

1271 NorthEast 23rd Avenue Pompano Beach, Florida 33062

Docket for Case No: 81-001495

Orders for Case No: 81-001495