STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY T. KRONISH, )

)

Petitioner, )

)

vs. ) CASE NO. 78-955

) STATE BOARD OF ACCOUNTANCY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned Matter, after due notice, at Gainesville, Florida on August 7, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Harry T. Kronish

4533 Jefferson Street

Hollywood, Florida 33021

For Respondent: James S. Quincey, Esquire

Post Office Box 1090 Gainesville, Florida 32602

ISSUE PRESENTED

Whether Petitioner should he permitted to take the CPA examination for licensure with the State Board of Accountancy.

The Petitioner appeared at the hearing without legal counsel and therefore was advised as to his rights in administrative proceedings under Chapter 120, Florida Statutes. He indicated that he understood these rights and desired to represent himself during the proceedings.

FINDINGS OF FACT

1. On February 2, 1978, Respondent received from the Petitioner an application for permission to take the certified public accountant examination for state licensure. In answer to question 15 of the application form as to whether he had been convicted of a felony or misdemeanor, Petitioner answered "Yes" and submitted an accompanying letter which stated that he had been convicted on a plea of guilty to a charge of accepting a gratuity and that he had received a suspended sentence with two years probation. He further noted in the letter that although he was a member of the New York Bar during that period, no action had been taken against him for disciplinary reasons by chat organization and that he had' lived a clean and exemplary life since that time. Three individuals certified on Petitioner's application as to his good moral character and integrity, and he listed three others who would submit character references on request. (Exhibits 1-2)

2. On May 1, 1973, in the United States District Court for the Southern District of New York, Case No. 70Cr.653, Petitioner, upon his plea of guilty, was convicted of a violation of Title 18, United States Code, Section 201 and 2 in that

   
   

   being a public official, to wit, a Special Agent, Internal Revenue Service,

   unlawfully, wilfully, and knowingly otherwise than as provided by law for the proper discharge of official duty, directly and indirectly, did ask, demand, exact, solicit, seek, accept, receive and agree to receive things of value, to wit $2,000, because of official acts to be performed by him in connection with an investigation."

   
   

   Petitioner was sentenced to a two-year period of confinement which was suspended and was placed on probation for like period. (Exhibit 4)

   
   

3. Incident to its processing of Petitioner's application, Respondent received a letter from his probation officer stating that court records indicated Petitioner had been "seriously involved over a long period of time in numerous bribery and attempted bribery situations while working as a special agent for the IRS." However, the officer stated that petitioner had presented no problems while on supervision, made a satisfactory adjustment, and was terminated from probation on April 30, 1975. (Exhibit 4)

   
   

4. Respondent's executive director testified that no inquiry had been made into the character references supplied by Petitioner on his application due to the fact than the amount of time to process applications for the May examination did not provide sufficient time to do so. However, he also testified that such references are not routinely investigated in processing applications. By letter of March 4, 1978, Petitioner was advised by Respondent that his application to take the May, 1978, CPA examination had been denied for failure to comply with Section 473.08(1)(c), F.S., in that "you were convicted on charges of `accepting a gratuity as an IRS agent, Title 18, U.S.C., Section 201(g)'." (Testimony of Thompson)

   
   

5. Petitioner testified that he served as an investigative agent in the Internal Revenue Service for a period of seventeen years prior to his retirement for medical disability. He conceded that he was asked to resign from that employment due to the fact that he was being investigated for some 20 to 30 alleged instances of activities similar to that for which he was convicted. He was employed by accounting firms in New York for a number of years prior and subsequent to his employment with the Internal Revenue Service. He has been employed with an accounting firm in Florida since February, 1978. In 1974, he served as Chancellor, Knights of Pythias, in New York. He believes that he has been rehabilitated and should be permitted to take the State CPA examination. (Testimony of Kronish, Exhibit 1)

   
   

6. Respondent does not have a consistent position on dealing with applications involving prior convictions, but considers each case on its individual merits. In cases where an application has been denied for such a reason, Respondent normally permits the applicant to appear before it personally if he files a second application. (Testimony of Thompson)

   CONCLUSIONS OF LAW

   
   

7. Section 473.08(1), Florida Statutes, provides, inter alia, that any person shall be entitled to take sin examination for the purpose of determining whether he should be permitted to practice as a certified public accountant if he "is of good moral character."

   
   

8. It is incumbent upon an applicant for a license issued by a state agency to affirmatively show that he possesses the qualifications set forth in the pertinent licensing statute. In his application and accompanying statement, Petitioner fully disclosed the fact of his federal conviction in 1973, but maintained that he had led an exemplary life since that time. To establish this fact, as required by Respondent, he listed in Item 17 of the application, the names and addresses of three individuals who would upon request submit character references on his behalf. In addition, three other individuals signed the "Certificate of Moral Character" appearing at the end of the application form which reads as follows:

"I, the undersigned, CERTIFY, that I know Harry T. Kronish, who now applies for permission to take an examination to be given by the Florida State Board

of Accountancy to qualify for a certifi- cate as a certified public accountant; that his moral character and integrity are good; that he would be entirely worthy of the trust reposed in him by the State of Florida and the public

as a certified public accountant; and that he would conscientiously observe the high professional and ethical

standards of the accountancy profession."

Notwithstanding Petitioner's compliance with the requirements concerning his present good character, Respondent elected to disregard such matters and predicate its denial of his application solely on the basis of the prior conviction though it had received a statement from Petitioner's former probation officer that he had made a "satisfactory adjustment" during his period of probation, no effort was made to inquire of Petitioner's character references or current employer as to their opinion of his present moral character. It is recognized that this administrative proceeding is de novo and not a review of a preliminary agency decision. However, Petitioner should not be required to present more evidence at such a proceeding than he would have been required to present for preliminary agency decision making. Here, his testimony asserting rehabilitation, supplemented by the certificates of character witnesses contained in his application, are considered prima facie sufficient to establish his present good moral character and overcome the adverse effect of his felony conviction over five years ago. In this adversary proceeding, if Respondent had wished to counter such showing by available evidence to the contrary, it could have done so. However, it chose to rest its entire decision of denial upon the conviction. In Zemour, Inc. v. State Division Beverage, 347 So.2d 1102 (Fla.

1st DCA 1977), the First District Court of Appeal, in considering a similar requirement of "good moral character" required for a beverage license, stated:

"An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral

character. But, as shown by the evidence here, repeated acts in vio- lation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legis- lature, as Judge Rawls said in Beary, supra, "in its infinite wisdom", has determined should not be entrusted with a liquor license."

In White v. Beary, 237 So.2d 263 (Fla. 1st DCA 1970) , the same Court had earlier stated in considering the same statute that: "What constitutes good moral character is a matter to be developed by facts, evaluated by the agency, with a judicial review of same ever available." In the instant case, although petitioner has a prior felony conviction for a most serious offense involving breach of trust, the available facts establish that he has been rehabilitated and should not be denied an opportunity to demonstrate the other necessary qualifications for certification as a certified public accountant.

RECOMMENDATION

That Petitioner Harry T. Kronish be permitted to take the next examination for the purpose of determining whether he shall be permitted to practice in this state as a certified public accountant.

DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1978.

COPIES FURNISHED:

James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602

Harry T. Kronish

4533 Jefferson Street

Hollywood, Florida 33021

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA, DIVISION OF ADMINISTRATIVE HEARINGS

HARRY T. KRONISH,

petitioner,

vs. Case No. 78-955

STATE BOARD OF ACCOUNTANCY,

Respondent.

/

FINAL ORDER

The Recommended Order of the Hearing Officer dated September 1, 1978, has been received by the State Board of Accountancy, hereinafter referred to as the "Board". A copy of said Order is attached hereto and marked Exhibit"A"

The Petitioner was given notice that the Board would consider the Recommended Final Order at it's scheduled meeting on October 4, 1978 at 11:30

1. Petitioner did not attend said meeting and presented no objections, memorandum or other argument.

   
   

   Copies of the transcript of the proceedings before the Hearing Officer, including all exhibits, were distributed to the members of the Board prior to the meeting on October 4, 1978. Each member of the Board has received the transcript and exhibits. Counsel for Petitioner has presented for the Board's consideration the cases cited by the Hearing Officer in the Recommended Order and has made an oral presentation to the Board.

   
   

   Upon consideration of the entire record, the applicable law and argument of counsel, the Board enters this Final Order, adopting and modifying Findings of Fact, adopting and rejecting Conclusions of Law and rejecting the recommendation of the Hearing Officer, as follows:

   
   

   Issue

   
   

   The Board adopts the statement of the issue as set forth in the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   The Board accepts the findings of fact as set forth in paragraphs 1, 2, 3, 4, 5 and 6 of the Recommended Order.

   
   

   The Board makes the following additional findings of fact, to wit:

   
   

   1. The offense for which Petitioner was convicted was a felony.

   2. Petitioner did not pass the ethics exam administered by the Board as a part of the application to sit for the examination until the third time. (Transcript page 16)

      
      

   3. Although Petitioner applied for an received a medical disability from the Internal Revenue Service while under investigation for 20-30 items of misconduct, the record shows that he has been continuously employed since that time. (Exhibit 1 and Transcript pages 16-19.)

      
      

   4. Petitioner did not report his conviction of the felony to the New York Bar nor to any of his subsequent employers. Petitioner was aware that the conviction of a felony in New York results in mandatory disbarment. (Transcript pages 22, 25)

      
      

   5. The character witnesses on the application of Petitioner included a real estate guy who showed him the house he bought and the attorney who closed the purchase of the house for him, both of which ware the only real estate agent and attorney he knew. The other witness was a special agent and supervisor with Petitioner while he was in New York with the Internal Revenue Service. Petitioner testified he didn't know anybody else. (Transcript, page 45.)

CONCLUSIONS OF LAW

The conclusions of law contained in paragraph 1 of the Recommended Order are accepted.

The conclusions of law contained in paragraph 2 are rejected where inconsistent with the following conclusions which are hereby found by the Board, to wit:

1. It is incumbent upon an applicant for a license issued by a state agency to affirmatively show that he possesses the qualif ications set forth in the pertinent licensing statute.

   
   

2. Section 473.08(1)(c), Florida Statutes, provides that an applicant for examination must be "of good moral character."

   
   

3. In White v. Beary, 237 So.2d 263 (Fla. 1st. DCA, 1970), the Court stated: "What constitutes good moral character is a matter to be developed by facts, evaluated by the agency with a judicial review of same ever available. The same Court, construing a statute requiring a showing of good moral character, in Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st. DCA, 1977) held:

   
   

   "Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct

   which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion

   wherever committed do not necessarily establish bad moral character. But,...repeated acts

   in violation of law wherever committed and

   generally condemned by law abiding people, over a long period of time, evinces tho sort of

   mind and establishes the sort of character that the legislature, as Judge Rawls said in

   Beary, supra, "in its infinite wisdom",

   has determined should not be entrusted with a liquor license."

   
   

4. The plea of guilty to the felony charge of accepting a bribe or gratuity while a special agent with the Internal Revenue Service was not only a violation of the laws of the United States, but also a violation a position of trust of a serious nature. Such should not be considered as an isolated act of Petitioner in view of his own testimony that at the time he left the Internal Revenue Service he was under investigation of 20 to 30 other incidents of the same nature.

   
   

5. The Petitioner's self serving opinion that he has been rehabilitated; the signatures of a real estate salesman and an attorney whose contact with Petitioner was limited to the showing and closing of Petitioner's house; and the signature of a co-agent and supervisor of Petitioner with the Internal Revenue Service while he was under investigation for violation of trust are not sufficient to establish good moral character of Petitioner. The limited contact of the real estate salesman and attorney would not permit such persons to be in position to evaluate petitioner's moral character as contemplated by 473.08 (1)(c).

   
   

6. Petitioner's effort to have the Board accept his membership in the New York Bar after his conviction as evidence of his good moral character is rejected in light of Petitioner's admission that he had not informed the New York Bar of his conviction although he acknowledged that conviction of a felony results in mandatory disbarment in New York. Matter of Chu, 42 NY 2d 490 (1977).

   
   

7. In light of the positions of trust and confidence which Certified Public Accountants have under the statutes of this state, the rules of the Board, and which the Board believes the people of this state expect, it is the opinion of the Board that Petitioner has failed to establish his good moral character as required by 5473.08(1)(c).

Ruling

The recommendation of the Hearing Officer is rejected. The prior action of the Board is ratified. The application of Petitioner, HARRY T. KRONISH, to sit for the Certified Public Accountant examination is denied.

DONE and ENTERED at Gainesville, Alachua County, Florida, this 5th day of October, 1978.

WILLIAM W. McABEE, Chairman State Board of Accountancy

Docket for Case No: 78-000955

Orders for Case No: 78-000955