n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5433

)

ESSIE MAE THOMPSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Final hearing was held on this case in Tampa on March 16, 1988. The issue was whether the Board of Accountancy should discipline the Respondent on charges that her license to practice accountancy in the State of Georgia has been revoked.

Charles A. Tunnicliff, Esquire, of Tallahassee, for Petitioner. Antonio L. Thomas, Esquire, of Atlanta, Georgia, for Respondent.

At the conclusion of the hearing, the parties agreed to suspend post- hearing procedures for 90 days to allow time for them to supplement the evidentiary record with information pertinent to the charges. When the 90 days came and went without any filing to supplement the record, an Order To Show Cause and, later, an Order Setting Deadline For Proposed Recommended Orders were filed, the latter requiring proposed recommended orders to be filed within ten days after the filing of the transcript of the final hearing. The transcript was filed on August 22, 1988, making the proposed recommended orders due by September 1, 1988. Only the Petitioner filed a proposed recommended order, and the proposed findings of fact contained in it are accepted and incorporated in this Recommended Order to the extent necessary.

FINDINGS OF FACT

1. The Respondent is licensed as a certified public accountant in the State of Florida.

   
   

2. On or about October 19, 1976, the Georgia State Board of Accountancy entered a Final Order revoking the Respondent's certificate as a public accountant upon a finding that she fraudulently and willfully misrepresented her experience on her application for certification filed with the Georgia Board.

   
   

3. The finding of fraudulent and willful misrepresentation made by the Georgia Board of Accountancy referred to an alleged sworn statement on the Respondent's application that her "continuous experience" required for

   certification in Georgia at the time included "full-time" employment with Richard Rose and Company, P.C., from September 30, 1974, through the date of application (April 24, 1975). The Georgia Board based its finding on evidence that the application did not disclose that she also was employed as an instructor at Savannah State College full-time from June, 1972, through March, 1975, and part-time from April through June, 1975.

   
   

4. In fact, while a "full-time" instructor at Savannah State College, the Respondent held office hours from nine to ten o'clock in the morning and held classes in the evening, for a total of approximately 25 hours a week. At the same time, the Respondent worked as an accountant with Richard Rose mid-days and afternoons and on weekends.

   
   

5. The Respondent's numerous appeals of the Final Order within the Georgia State court system all have been denied on procedural technicalities which the Respondent has not been able to overcome. There has never been an appellate ruling on the merits of the Respondent's appeals.

   
   

6. Meanwhile, Richard Rose, whose certificate to practice public accountancy in Georgia was suspended for three years by Final Order of the Georgia Board of Accountancy, was able to obtain de novo review on the merits on his appeal to the Georgia courts under one of the procedural remedies then available under Georgia law. On March 31, 1977, Rose obtained an Order from the Superior Court of Fulton County, Georgia, reversing the suspension. The court found that although Georgia Board of Accountancy regulations might require

   "full-time" experience for licensure, Rose's affidavit in support of the Respondent's application (like he Respondent's sworn statement) did not swear that the Respondent was employed full-time with Rose, but only that she was "continuously" employed. The court also found that there was no evidence that the Respondent was not employed as stated in Rose's affidavit.

   
   

7. As the appropriate discipline for the offense it has charged in this case, the Petitioner has proposed that two years probation, on terms set by the Board of Accountancy, be recommended.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 473.323(1)(c), Florida Statutes (1987), authorizes the Board of Accountancy to revoke, suspend or otherwise discipline a licensee whose license to practice public accounting in another state has been revoked. In this case, the evidence is clear that the Respondent's license to practice public accounting in Georgia has been revoked.

   
   

9. Rule 21A-36.004(2)(c), Florida Administrative Code, authorizes as the penalty for violation of Section 473.323(1)(c), Florida Statutes (1987), the same penalty as imposed in the other jurisdiction or "imposition of the same range of penalties as those set forth in those rules for the same type of violation."

   
   

10. Under Rule 21A-36.004(2)(b), Florida Administrative Code, the appropriate penalty for procuring a Florida certificate to practice public accountancy by fraudulent misrepresentation--a violation of Section 473.323(1)(b), Florida Statutes (1987)--is revocation and a $1000 fine.

    
    

11. Rule 21A-36.004(2), Florida Administrative Code, provides that the Board of Accountancy shall follow the disciplinary guidelines. But paragraph

    (3) of the rule entitles the Board to deviate from the guidelines contained in

    the immediately preceding paragraph of the rule on evidence of aggravating or mitigating circumstances of which the Hearing Officer may or may not have been aware. See also Section 455.2273, Florida Statutes (1987), which requires that Board to adopt, by rule, disciplinary guidelines but in paragraph (3) states: "A specific finding of mitigating or aggravating circumstances shall allow the board to impose a penalty other than that provided for in such guidelines."

    
    

12. Subparagraph (3)(b) of Rule 21A-36.004 sets out the type of mitigating circumstances that can justify a penalty below the guidelines' minimums. The factors referring to negligence, damages and degree of financial hardship do not apply to the facts of this case. The factors that do apply--lack of previous discipline, steps taken to assure non-recurrence of the offense, and cooperation with the Department of Professional Regulation-- suggest that the Respondent's penalty should be reduced.

RECOMMENDATION

Based on the foregoing Findings Of Fact (including the Petitioner's proposal that the appropriate penalty is probation) and Conclusions Of Law, it is recommended that the Board of Accountancy enter a final order sustaining the charges against the Respondent, Essie Mae Thompson, and placing the Respondent on two years probation on terms established by the Board.

RECOMMENDED this 21st day of September, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1988.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Chief Attorney

Professions Section Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Antonio L. Thomas, Esquire Thomas and Dotson

Post Office Box 54867

151 Ponce de Leon Avenue, North East Suite 201

Atlanta, Georgia 30308

Bruce Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Martha Willis Executive Director Board of Accountancy Suite 16

4001 North West 43rd Street Gainesville, Florida 32306

Docket for Case No: 87-005433

Orders for Case No: 87-005433