STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF REAL )

ESTATE, 1/ )

)

Petitioner, )

)

vs. ) CASE NO. 81-2557

)

MARTIN OPPENHEIM, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on January 7, 1982. The Division of Administrative Hearings received the transcript of proceedings on May 6, 1982. At the hearing, the parties were represented by counsel:

For Petitioner: Michael Colodny, Esquire, and

Joel S. Fass, Esquire

626 Northeast 124th Street

North Miami Beach, Florida 33161

For Respondent: Frank H. Holtzman, Esquire, and

Alan H. Pinkwasser, Esquire 2145 Northeast 204th Street

North Miami Beach, Florida 33179

By administrative complaint dated September 2, 1981, petitioner alleged that respondent "prior to obtaining his broker's license. . .[while he] was President of Hot Tub Factory, Inc. . . .received a $469.95 deposit on the sale of a six foot by three and one half foot Redwood hot tub from Clyde G. Vogtman.

. .[who later] cancelled his order and was entitled to the return of said deposit"; that respondent "in his capacity as President promised and represented to Clyde G. Vogtman that the deposit would be returned. . .[but] failed and refused to return. . .said deposit notwithstanding repeated demands"; and that respondent is, therefore, "guilty of breach of trust, dishonest dealing and making false promises in a business transaction in this State in violation of Section 475.25(1)(b), Florida Statutes (1979)."

FINDINGS OF FACT

1. In January of 1977, respondent Martin Oppenheim and his partner Jack Mulvey began doing business under the name Hot Tub Warehouse. In April of 1979, the business was incorporated as Hot Tub Factory, Inc., and Messrs. Cohen, Marcus, and Kuchenberg became shareholders along with respondent and Mr. Mulvey. Thereafter, on April 23, 1979, Clyde Vogtman visited the business premises, met respondent Oppenheim and, after a demonstration, decided to buy a hot tub. Mr.

   Vogtman signed a purchase agreement prepared by respondent, Respondent's Exhibit No. 2, and gave Mr. Oppenheim a check for $464.95 payable to Hot Tub Factory, as a deposit. Petitioner's Exhibit No. 2. As a salaried employee of the corporation, Mr. Oppenheim got no commission on hot tub sales. He deposited Mr. Vogtman's check in a corporate account.

   
   

2. When respondent Oppenheim returned from a five-day vacation on May 8, 1979, Mr. Cohen advised him that his tenure as president of Hot Tub Factory, Inc., had come to an end. The majority stockholders wanted Mr. Oppenheim "to become a passive investor." (T. 33.) In response to this news, Mr. Oppenheim decided to liquidate his interest in Hot Tub Factory, Inc., but was still a shareholder on May 25, 1979, when he answered Mr. Vogtman's telephone call.

   When Mr. Vogtman asked why no hot tub had been delivered, Mr. Oppenheim explained that there was a large backlog and offered to return his deposit. Mr. Vogtman accepted this offer. After hanging up, Mr. Oppenheim wrote a note to the effect that Mr. Vogtman's deposit should be returned and gave the note to Sheila Mulvey who was employed by Hot Tub Factory, Inc., as a secretary. At about the same time, he told Jack Mulvey and Messrs. Marcus and Cohen that the Vogtman deposit should be returned. They said that "there would be no problem with his getting his money back. (T. 36.)

   
   

3. In the office of Martin Brooks, Esquire, in the final stage of negotiations which eventuated in his severing all ties with Hot Tub Factory, Inc., Mr. Oppenheim learned that Mr. Vogtman's deposit had not been returned. He again asked that the deposit be returned. Because he assumed that Mr. Vogtman's deposit would be returned, respondent did not insist that the deposit be added to the list of claims as to which he was to be held harmless under the written agreement dissolving his relationship with Hot Tub Factory, Inc. Petitioner's Exhibit No. 4. This list of claims was attached to the agreement as an addendum.

   
   

4. At the final hearing, Mr. Oppenheim testified that he did not feel that he was legally obligated to make good on the company's debt to Mr. Vogtman, but he nevertheless presented Mr. Vogtman with a cashier's check in the amount of four hundred seventy dollars ($470).

   
   

5. At all pertinent times, respondent was licensed as a real estate broker.

   
   

6. Petitioner has submitted a proposed recommended order. Petitioner's proposed findings of fact have been adopted for the most part. To the extent that they have not been adopted, they have been deemed irrelevant or unsupported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner is authorized to "suspend a license for a period not exceeding 10 years. . .revoke a license. . .impose an administrative fine. .

   .or. . .issue a reprimand," Section 475.25(1), Florida Statutes (1981), whenever petitioner establishes by clear and convincing evidence that a licensee has been "guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust." Section 475.25(1)(b), Florida Statutes (1981). In pertinent part, these statutory provisions are identical to the 1979 statutes pleaded in the administrative complaint and to the statutory provisions in force during the relevant period preceding July 1, 1979.

8. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979).

   
   

9. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. License revocation proceedings have, indeed, been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).

   
   

10. The proof adduced in the present case was wholly insufficient to establish a violation of Section 475.25(1)(b), Florida Statutes (1981). To the contrary, the evidence showed that Mr. Oppenheim conducted himself in an upright and exemplary fashion in trying circumstances.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint.

DONE and ENTERED this 19th day of May, 1982, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

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 19th day of May, 1982.

ENDNOTE

1/ Pursuant to Chapter 82-3, Section 6, Laws of Florida (1982), the Board of Real Estate was renamed the Florida Real Estate Commission.

COPIES FURNISHED:

Michael Colodny, Esquire Joel S. Fass, Esquire

626 Northeast 124th Street

North Miami Beach, Florida 33161

Frank H. Holtzman, Esquire Alan H. Pinkwasser, Esquire 2145 Northeast 204th Street

North Miami Beach, Florida 33179

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Carlos B. Stafford, Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick H. Wilsen, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002557

Orders for Case No: 81-002557