and be filed with the Director, Division of Administrative Hearings.
Luken indicated his desire to file such a petition and, accordingly, the parties stipulated that any such petition could be filed within twenty days from August 17, 1977. It was further stipulated that the time for the Hearing Officer to enter his recommended order in Case No. 77-2002 would be extended to fifteen days from the date of entry of a final order in the rule challenge proceeding.
The hearing in Case No. 76-2002 then proceeded to completion.
Thereafter, Luken filed a timely petition for an administrative determination of the invalidity of Rule 21A-11.04(2), F.A.C., on September 6, 1977. The parties agreed to waive a hearing thereon and to submit the case on briefs.
The parties stipulated to certain facts in Case No. 76-2002 and they are adopted for the purposes of this proceeding, as follow:
That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968.
That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant;
That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted CPA license by California upon completion of the necessary experience requirements in May of 1971;
That the Certificate Holder attended law school at the Ohio State University from September, 1970 through December 1972. In December, 1972, he was awarded a Juris Doctor Degree from that institution;
That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a Position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973;
That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida;
That in July, 1973, the Certificate Holder accepted that position with McClain and Co., CPA's, of Miami, Florida, which position was to begin in August, 1973;
That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida;
That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar;
That the Certificate Holder moved his family from Cincinnati, Ohio to Fort Lauderdale, Florida, in July, 1973, and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973;
That the Certificate Holder completed the application for a reciprocal CPA certificate and Submitted the same to the Florida State Board of Accountancy in October, 1973;
That in November, 1973, the Certificate Holder took the Florida Bar examination in Tampa, Florida;
That the Certificate Holder was admitted to the Florida Bar In December, 1973, and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January, 1974;
That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in May, 1974.
That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January, 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974;
That in August, 1974, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida;
That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder;
That since February, 1975, the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and
That the Certificate Holder has been a resident of and domiciled in the State of Florida from August, 1973 thru and including the date of this Stipulation.
CONCLUSIONS OF LAW
Petitioner seeks an administrative determination that Rule 21A- 11.04(2), Florida Administrative Code, is:
an invalid exercise of validly delegated legislative authority, and
an exercise of invalidly delegated legislative authority.
Section 120.56, Florida Statutes, on which this petition is based, no longer authorizes a Hearing Officer to determine the validity of statutes or any delegations made thereunder. The current statute reads pertinently as follows:
"120.56 Administrative determination of rule by hearing officer.
Any person substantially affected by a
rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. "
The rule under consideration states as follows: "21A-11.04 Reciprocal Certificates.
* * *
(2) In the event a recipient of a reciprocal certificate, within three (3) years after issuance of his certificate, ceases to be a resident of and domiciled in the State or ceases to practice public accounting on a substantially full time basis in the State,
he shall promptly notify the Board and surrender his reciprocal certificate." (Emphasis added)
The statutory provision which the rule purportedly implements reads in pertinent part as follows:
"473.201 Certificates granted to holders from other states.--
Upon application, the board shall issue a reciprocal certificate to the holder of a valid, unrevoked certificate issued by, or under the authority of, another state or political division of the United States only if:
The applicant is a resident of and domiciled in the state;
The applicant intends to enter into the full-time, year-round practice of public accounting in the state.
* * *
Failure of the holder of a certificate issued under this section to be domiciled
in and practice public accounting on a substantially full-time basis in the state for a continuous period of 3 years immediately after issuance of such certificate shall be prima facie evidence of the lack of the requisite intent and sufficient grounds for revocation of the reciprocal certificate issued by the board." (Emphasis added)
The respondent concedes that petitioner is substantially affected by the rule in question inasmuch as the State Board of Accountancy is seeking to
revoke his reciprocal certificate to practice as a certified public accountant under an amended administrative complaint that asserts petitioner's violation of the rule in that he ceased to practice public accounting on a substantially
full-time basis in the state within three years after issuance of his certificate and thereafter failed to surrender such certificate to the Board.
Petitioner claims that the rule is in conflict with Section 473.201(2) in that the rule has substituted the word "or" for the word "and" appearing in Section 473.201(2), thus altering the meaning and application of the statute.
He contends that the statutory provision permits the prima facie presumption that an applicant for a reciprocal license lacked the requisite intent required by subsection 473.201(1)(d) to enter into the full-time year-round practice of public accounting in the state only if he fails to be domiciled In the state and practice public accounting on a substantially full-time basis there for a continuous period of three years immediately after issuance of the certificate. On the other hand, the rule requires the holder of a reciprocal certificate to surrender the same if he, within three years after its issuance, ceases to be a resident of and domiciled in the state or ceases to practice public accounting on a substantially full-time basis in the state. Petitioner thus, in effect, is saying that although the statute requires both a failure to be domiciled and practice in the state for three years merely to raise a prima facie showing of the lack of intent to engage in accounting on a full-time basis, the rule requires surrender of the certificate if either of the two requirements are not met by the applicant after he receives his certificate. He asserts, therefore, that the rule extends the statute beyond the authority conferred by the legislature Petitioner equates "surrender" of the certificate to revocation and claims that such a requirement in the rule creates a conclusive presumption of the lack of the requisite intent to practice accounting, and effectively eliminates the burden of the state to take affirmative action to revoke the certificate. He further contends that by such a requirement he is unable to secure his due process right to present evidence to overcome the prima facie showing permitted by the statute,
Respondent answers these claims by asserting that since the statute requires both domicile and intent to practice accounting full-time as conditions for certification, the legislative intent is clear that failure to do either for three years after receiving the certificate constitutes a ground for invoking the prima facie" provision to show that the applicant did not intend to practice on a full-time basis in the state when his certificate was issued. Further, respondent contends that the rule requiring surrender of the certificate upon the happening of either contingency is merely a procedure that permits it to thereafter make a determination as to whether sufficient grounds for revocation exist under the statute, and that the licensee can challenge any ensuing revocation proceeding. Respondent points out in this regard that nowhere in the rule is anything said about suspension or revocation of the certificate and that therefore the requirement to surrender same is not significant.
Section 473.04 authorizes respondent to "formulate rules for its guidance, not inconsistent with the provisions of this chapter." Certainly, a regulation enacted by an administrative board within the scope of its powers will be deemed prima facie reasonable and justified Florida Citrus Commission v Golden Gift,Inc., 90 So 2d 657 (Fla. 1957) However, as noted by the Supreme Court in Mercer v Hemmings, 194 So 2d 579 (Fla. 1966), in considering the subject of reciprocal certificates issued by the Florida State Board of Accountancy, "the vesting of discretion in any administrative agency carries with it much authority, but that authority is interwoven with the responsibility to exercise discretion in a not unreasonable manner."
In addressing the validity of Rule 21A-11.04(2), it is first necessary to determine the intent of the legislature in enacting subsection 473.201(2). That provision is not considered to be a separate revocation authority in itself, but merely an evidentiary standard that can be applied, in the absence of countervailing evidence, to effect a revocation under Section 473.251 which deals with the subject of disciplinary action against licensees. In that section, the only apparent ground for revocation of a license in the context of subsection 473.201(2), absent fraud, is subsection 473.251(1)(e) which provides for discretionary revocation by respondent of a certificate to practice as a certified public accountant if "any reason exists which would have justified the refusal of the certificate in the first instance." It is not believed that section 473.201 is proscriptive in nature or is otherwise susceptible to a "violation" by a licensee such as to invoke subsection 473.251(1)(g) which authorizes revocation if a certificate holder is "guilty of a violation of the provisions of this chapter or of any of the rules of the board." Although subsection 473.251(1)(e) permits revocation if any reason exists which would have justified initial denial of the certificate, it seems clear that the legislature intended in subsection 473.201(2) to permit a prima facie showing of a lack of the intent to enter full-time public accounting practice as required in subsection 473.201(1)(d) only if the certificate holder failed to be both domiciled in and practice in the state for the requisite three year period.
This is not to say that if it could be shown by other sufficient evidence that the applicant had not intended to enter full-time practice at the time of making his application, revocation could not otherwise effected under subsection 473.251(e). The "prima facie" provision simply sets a particular standard to be met before enabling respondent to utilize it in a revocation proceeding.
Respondent's rule, on the other hand, aside from its inconsistency with the statute by the use of the word "or" rather than "and," is considered deficient for the reason that it exceeds the authority delegated in subsection 473.201(2) by requiring a certificate holder to surrender his certificate or be in violation of the rule and thus vulnerable to consequent revocation of his certificate for that reason alone. To obey the provisions of the rule requires that the licensee give up his right to practice public accounting in Florida without having had an opportunity to show at a hearing that he, in fact, intended to enter the full-time year-round practice of public accounting in Florida at the time his license was issued. Respondent's assertion that such an individual could nevertheless receive a hearing before revocation does not solve the problem because such proceedings would not be completed for a considerable period of time. During such period, the individual effectively would be deprived of his right to practice by virtue of Section 473.021 which prohibits any person from practicing as a certified public accountant ". . . unless such person shall hold a certificate in good standing is sued by the board then in full force and effect under the provisions of this chapter. . ." It is manifest therefore that the requirement of Rule 21A-11.04(2) to "surrender" the certificate is unreasonable and the rule is an invalid exercise of delegated legislative authority.
