STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STEPHEN A. COHEN, )
)
Petitioner, )
)
vs. ) CASE NO. 81-462RX
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACCOUNTANCY, )
)
Respondent. )
)
FINAL ORDER
The Petitioner, Stephen A. Cohen, filed a "Petition for Determination of the Invalidity of an Existing Rule" of the Respondent, Board of Accountancy. Petitioner is seeking an order declaring that licensing criteria applied by the Board constitute rules which have not been properly promulgated, and that the policies are therefore invalid exercises of delegated legislative authority. By Order entered March 13, 1981, the Director of the Division of Administrative Hearings assigned the matter to the undersigned Hearing Officer. The final hearing was scheduled by notice dated March 19, 1981, to be conducted on April 8, 1981. The hearing was conducted as scheduled, and the parties thereafter waived time limitations imposed under Section 120.56, Florida Statutes, so that they could have benefit of the transcript of the final hearing in preparing
post-hearing legal memoranda.
Both parties have submitted proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they have been explicitly included in the following findings of fact and conclusions of law. They have otherwise been rejected as contrary to the evidence, as not in accordance with law, or as not relevant to the issues.
FINDINGS OF FACT
Petitioner is seeking licensure as a certified public accountant in Florida. Petitioner is licensed as a certified public accountant in the State of Pennsylvania. He is seeking licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking an examination. Petitioner was initially licensed in Pennsylvania in 1961.
The Board of Accountancy reviewed Petitioner's application and determined that he met all Florida requirements for education and experience, and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961. In a non-final order, however, the Board determined that Petitioner did not receive grades on the examination administered in Pennsylvania that would have constituted passing grades in Florida, and denied his application. The non-final order is the subject of a formal administrative proceeding before the Division of Administrative Hearings in Case No. 80-2332.
The Board's rules require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. Rule 21A-28.05(2), (3), Florida Administrative Code. Rules in effect in 1961 also required that a grade of 75 or above would be required in all four subjects of the examination. Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes. Petitioner is substantially affected by the Board of Accountancy's rules and policies which affect his eligibility to be licensed as a certified public accountant in Florida.
Section 473.308(3), Florida Statutes, provides:
The board shall certify as qualified for a license by endorsement an applicant who:
Qualifies to take the examination
as set forth in Sec. 473.306, who has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by Sec. 473.306, and who has satisfied the experience requirements set forth in Sec.
473.307; or
Holds a valid license to practice public accounting issued by another state or territory of the United States, if the criteria for issuance of such license were substantially equivalent to the licensure criteria which existed in this state at the time the license was issued.
In implementing these statutory provisions, the Board of Accountancy has adopted Rule 21A-29.01(1), Florida Administrative Code, which provides:
The Department shall issue a license by endorsement to practice public accounting upon certification by the Board that
an applicant for endorsement:
has qualified to take the examination as set forth in Section 473.306,
F.S., and Rule 21A-28 and passed such examination and has satisfied the experience requirements as set forth in Section 473.307, F.S., and Rules 21A-
27.03 and 21A-27.04, or
holds a valid, active license to practice as a certified public accountant issued by another state or territory of the United States, if the criteria for issuance of such out-of-state license
were substantially equivalent to licensure
criteria which existed in Florida
at the time the out-of-state license was issued.
Petitioner contends that the Board's action manifested in its non-final order denying licensure is incorrect, and was based upon policies which constitute rules that have not been properly promulgated as rules.
Petitioner's contentions that the Board's actions are incorrect are not properly cognizable in this rule challenge proceeding. Whether the test administered to the Petitioner in Pennsylvania was or was not substantially equivalent to the examination required in Florida due to variances in grading requirements is an issue that should properly be resolved in the formal proceeding that has been initiated pursuant to Section 120.57(1), Florida Statutes, in response to the Board's non-final order. Similarly, whether Petitioner actually received grades on his Pennsylvania examination which would not have been passing grades in Florida and, if so, whether this renders the Pennsylvania licensing criteria not substantially equivalent to that which existed in Florida in 1961 are issues to be resolved in the Section 120.57(1) proceeding.
Petitioner has contended that the Board's interpretation of Section 473.308(3)(b), Florida Statutes, as requiring certain test scores constitutes a rule, and that the interpretation has not been adopted as a rule. Petitioner has also contends the Respondent's policy of regarding applicants from Pennsylvania whose test scores would not have constituted passing grades" in Florida as not having passed an examination substantially equivalent to that administered in Florida, or as having been issued a license to practice public accounting in a state where licensing criteria is substantially equivalent to that which existed in Florida at the time the license was issued, constitutes a rule which has not been properly promulgated. The contentions are without merit. These matters are issues which can properly be resolved on a case-by-case basis. While the Board's actions necessarily involve interpretations of a statute, regulatory agencies are not required to promulgate a rule to reflect every interpretation of a statute. In McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (1 DCA Fla. 1977), the Court stated:
While the Florida APA thus requires rule- making for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.
To the extent that the Respondent's policies are statements of general applicability, with prospective rather than retrospective applicability, they are matters which can properly be refined through the adjudicatory process as incipient policies. Administrative agencies are not required to institute rulemaking procedures each time a policy is developed. Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280, 1281 (Fla. 1980); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182
(1 DCA Fla. 1981). When policy is developed through a case-by-case approach, the agency must support the policy in each adjudicative proceeding. In the context of this matter, that support should be forthcoming in the Section 120.57(1) proceeding. The fact that the Board has not initiated rulemaking does not render the policies invalid.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is, hereby,
Petitioner has failed to establish that the policies of the State Board of Accountancy relating to licensure of certified public accountants by endorsement constitute invalid exercises of delegated legislative authority, and the Petition for Determination of the Invalidity of an Existing Rule is accordingly dismissed.
DONE AND ORDERED this 12th day of June, 1981, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
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 12th day of June, 1981.
COPIES FURNISHED:
George L. Waas, Esquire Slepin, Slepin & Lambert 1114 East Park Avenue Tallahassee, Florida 32301
Michael I. Schwartz, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
John J. Rimes, Esquire Assistant Attorney General Department of Legal Affairs The Capitol
Tallahassee, Florida 32301
Carroll Webb, Esquire Executive Director
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud, Chief
Bureau of Administrative Code Department of State
1802 The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 12, 1981 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 12, 1981 | DOAH Final Order | Petitioner didn't establish respondent's policies certifying CPAs by endorsement were invalid exercises of delegated legislative authority. |
