STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES A. PANTINO, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1721

) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ) ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on July 17, 1986, in Indian Harbour Beach, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Charles A. Pantino, Pro se.

229 Shore Lane

Indian Harbour Beach, Florida 32937

For Respondent: Joyous D. Parrish, Esquire

Assistant Attorney General Suite 212, 400 W. Robinson

Orlando, Florida 32801

The issue is whether Petitioner, Charles A. Pantino, is entitled to a real estate license.

Pantino presented the testimony of Marcelene Thompson, Barbara Leah, James

1. Rehill, David Waldron, Ron Clayton, Michael Dingman, Alfred Zenger, George Patterson, and himself, together with three exhibits admitted in evidence. Respondent, Department of Professional Regulation, Florida Real Estate Commission (FREC), presented Pantino's testimony and had Exhibits 1, 2, and 4-9 admitted in evidence. The transcript of these proceedings was filed on August 18, 1986, and the parties filed proposed findings of fact and conclusions of law on August 25, 1986. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix hereto and made a part hereof.

   
   

   FINDINGS OF FACT

   
   

   1. On or about February 11, 1986, Pantino filed an application for licensure as a real estate salesman, which was denied based upon Pantino's prior criminal record.

   2. It is undisputed that Pantino was convicted of possession of a weapon in 1969 and was convicted of sale of a controlled substance, possession of a controlled substance, trafficking in cocaine, possession of a machine gun, and receiving stolen property in 1981. The 1969 incident occurred in New York and a Certificate of Relief from disabilities was granted in New York on June 25, 1976.

      
      

   3. The arrest for the 1981 offenses occurred on November 5, 1981. On September 1, 1982, Pantino pleaded guilty and was sentenced to terms of probation of 10 years and 5 years, to run concurrently.

      
      

   4. The probation was terminated early by Order of the Circuit Judge on July 18, 1985.

      
      

   5. Pantino applied for real estate licensure in 1983, but was denied by the Florida Real Estate Commission for essentially the same reasons as the present denial.

      
      

   6. Pantino has the burden of proving that he is "honest, truthful, trustworthy, and of good character" and that he has "a good reputation for fair dealing." Section 475.17(1)(a), Florida Statutes. Further the above criminal convictions constitute conduct which would disqualify Pantino from licensure "unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, "it appears that the interest of the public and investors will not likely be endangered if licensure is granted." Section 475.17(1)(a).

      
      

   7. For the last four years Pantino has attended group therapy and individual psychotherapy with both Marcelene Thompson, an experienced and licensed mental health counselor, and Barbara Leah, a licensed psychologist. Both of these professionals believe that Pantino is in good mental health and is extremely honest and trustworthy. According to Leah, Pantino would not cause harm to any other individuals or institutions and he does not now have any criminal tendencies.

      
      

   8. Based upon the testimony of James Rehill, David Waldron, Ron Clayton, Michael Dingman, Alfred Zenger and George Patterson, it is found that Pantino is honest, truthful, trustworthy, and of good character and that he has a good reputation for fair dealings. The opinions of these witnesses are further corroborated by the written character references contained in Petitioner's Exhibit 2.

      
      

   9. It has been approximately five years since the criminal conduct which forms the basis for the initial denial of licensure. In those five years, Pantino has exhibited good conduct and has developed a good reputation for honesty and trustworthiness.

      
      

   10. During that time, Pantino has experienced the termination of his marriage and has been solely responsible for the care of his two children He has been a good and responsible parent to his children. He has supported his family both through self employment and with a disability pension from the veteran's Administration based on severe wounds received in Viet Nam.

       
       

   11. With apparent full knowledge of Pantino's past criminal conduct, Mel Ezell, owner of Compass Points Real Estate, signed Pantino's application showing his willingness to have Pantino's license placed with his company and to employ Pantino as a real estate salesman.

   12. The Florida Real Estate Commission presented no witnesses and the evidence of Pantino's good reputation for honesty and fair dealing is uncontroverted. There is no evidence in the record to indicate that the public and investors will likely be endangered if Pantino is licensed. In fact, the uncontroverted evidence is that Pantino is now honest and trustworthy and not a danger to investors or the public.

       
       

   13. All of the evidence presented shows that Pantino has rehabilitated himself.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   15. Section 475.17(1)(a), Florida Statutes, 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... If 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.

       
       

   16. Section 475.25(1), Florida Statutes provides that licensure can be denied if the applicant has been convicted of certain criminal conduct. There is no question that Pantino was guilty of conduct which would have been grounds for suspension or revocation under Section 475.25(1). Under Section 475.17(1)(a) the issues then become whether Pantino is "honest, truthful, trustworthy, and of good character" and has "a good reputation for fair dealing," and 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 is granted a real estate license.

   17. The burden of proof is on Pantino. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). In determining whether Pantino carried his burden, some guidance can be found in Aquino v. Department of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983). In Aquino, the court ordered that a real estate license be issued to an applicant who had violated SEC regulations by selling unregistered securities. Aquino's misconduct occurred five years before and the court upheld a finding that five years is sufficient time for rehabilitation. In Aquino, the uncontroverted testimony was that Aquino had a reputation for fair and honest dealings and that the interest of the public and investors was not endangered by granting the application. Finally, the court stated that no evidence of misconduct since the cited incident was presented and that all evidence pointed toward rehabilitation.

       
       

   18. The present case is similar to Aquino. The offenses were approximately five years ago. The uncontroverted evidence is that Pantino has had a good reputation for honest, trustworthiness, truthfulness and fair dealing in the intervening years. Further, the expert testimony of Pantino's psychologist and mental health counselor is that Pantino is not a threat of harm to anyone. The public and investors are not endangered. Finally, no evidence of misconduct since the incident was presented. Instead, all evidence points toward rehabilitation.

       
       

   19. It is concluded that Pantino is honest, truthful, trustworthy and of good character and has a good reputation for fair dealing. Further, sufficient time has elapsed for rehabilitation and during this time, Pantino has engaged in good conduct and has a good reputation. Finally, it is concluded that the interest of the public and investors will not be endangered by Pantino's licensure. Hence, it is concluded that Pantino meets the qualifications for licensure as a real estate salesman.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order

GRANTING Charles A. Pantino's application for licensure as a real estate salesman.

DONE and ENTERED this 10th day of September, 1986 in Tallahassee, Florida.

DIANE K. KIESLING

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 10th day of September, 1986.

COPIES FURNISHED:

Charles A. Pantino

229 Shore Lane

Indian Harbour Beach, Florida 32937

Joyous D. Parrish, Esquire Assistant Attorney General Suite 212, 400 W. Robinson

Orlando, Florida 32001

Fred Roche Secretary

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Department of Professional Regulation Florida Real

Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1721

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner.

1. Proposed Finding of Fact 10 is adopted in substance inFinding of Fact

   8.

2. Proposed Finding of Fact 11 is adopted in substance inFinding of Fact

   8.

3. Proposed Finding of Fact 12 is adopted in substance inFinding of Fact

   8.

4. Proposed Finding of Fact 13 is adopted in substance inFinding of Fact

   8.

5. Proposed Finding of Fact 14 is adopted in substance inFinding of Fact

   8.

6. Proposed Finding of Fact 15 is adopted in substance inFinding of Fact

   4.

7. Proposed Finding of Fact 16 is unnecessary.

8. Proposed Finding of Fact 17 is adopted in substance inFindings of Fact

   3 and 4.

9. Proposed Finding of Fact 18 is adopted in substance inFinding of Fact

5.

11.

9.

9.

2.

13.

1.

2.

2.

5.

3.

7.

8.

10.

1. Proposed Finding of Fact 26 is modified in Finding of Fact 13.

2. Proposed Finding of Fact 27 is adopted in substance inFinding of Fact

   
   

3. Proposed Finding of Fact 28 is adopted in substance in Finding of Fact

Rulings on Proposed Findings of Fact of Respondent.

1. Proposed Finding of Fact 1 is adopted in substance in Finding of Fact

   
   

2. Proposed Finding of Fact 2 is adopted in substance in Finding of Fact

   
   

3. Proposed Finding of Fact 3 is adopted in substance in Finding of Fact

   
   

4. Proposed Finding of Fact 4 is adopted in substance in Finding of Fact

   
   

5. Proposed Finding of Fact 5 is adopted in substance in Finding of Fact

   
   

6. Proposed Finding of Fact 6 is adopted in Finding of Fact 4.

7. Proposed Finding of Fact 7 is adopted in substance in Finding of Fact

   
   

8. Proposed Finding of Fact 8 is adopted in substance in Finding of Fact

   
   

9. Proposed Finding of Fact 9 is adopted in substance in Finding of Fact

Docket for Case No: 86-001721

Orders for Case No: 86-001721