STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6115

)

FRANK BERMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on May 31, 1990, in Palm Beach Gardens, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Tobi Pam

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated August 7, 1989; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on August 7, 1989, when the Department of Professional Regulation, Board of Accountancy (Department) filed an administrative complaint against the Respondent, Frank Berman, and alleged a violation of Section 473.323(1)(g), Florida Statutes. More specifically, the complaint alleged Respondent had failed to exercise professional competence and due professional care in the performance of accounting services. Respondent executed an election of rights which disputed the allegations of fact and requested an administrative hearing in connection with the charge. The case was forwarded to the Division of Administrative Hearings for formal proceedings on November 8, 1989.

The case was originally scheduled for hearing on February 8, 1990. At the outset of that hearing the Respondent requested an abeyance of the case and represented that he and the Department would negotiate a settlement to present

to the Board of Accountancy. The Department supported that request and the case was placed in abeyance to afford the parties additional time to reduce their agreement to writing and present it to the Board. For reasons unknown, an agreement was not executed by the parties. Consequently, the matter was rescheduled for hearing and the parties were notified of the new hearing date, May 31, 1990.

At the hearing, the Department presented the testimony of the following witnesses: John Phillips Thorsen, a certified public accountant; and Morton L. Weinberger, also a certified public accountant. The Department's exhibits numbered 1 and 2 were admitted into evidence. The Respondent did not appear and no evidence was presented on his behalf.

The transcript of the proceedings was filed with the Division of Administrative Hearings on June 18, 1990. After the hearing, neither party filed a proposed recommended order.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency authorized to regulate and discipline licensees pursuant to Chapters 455 and 473, Florida Statutes.

   
   

2. The Respondent is a licensed certified public accountant, license number AC 3214 (election of rights submitted by Respondent).

   
   

3. In connection with an investigation of another licensee (not at issue herein), the Respondent submitted to the Department a financial report that Respondent had performed for the entity identified as Moreil Interiors, Inc. (Moreil). That document (Department's exhibit 1) consisted of four pages and represented financial information related to Moreil for a 6 month period ending December 31, 1984.

   
   

4. Certified public accounts are required to utilize specific guidelines in the performance of accounting services. Those guidelines are codified in the Statements on standards for Accounting and Review Services (SSARS). The failure to abide by the SSARS guidelines constitutes performance below acceptable accounting standards.

   
   

5. The financial report identified in paragraph 3 failed to comply with the SSARS in at least four material ways. The level of service indicated by the Respondent's report is not accepted practice for certified public accountants and has been rejected by the American Institute of Certified Public Accountants. The type and number of the deficiencies in that report constitute negligence on Respondent's part and establish a failure to exercise professional competence and due professional care in the performance of accounting services.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

7. Section 473.323, Florida Statutes, provides, in pertinent part:

   
   

   1. The following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken:

      * * *

      (g) Upon proof that the licensee is

      guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of public accounting.

      * * *

      (3) When the board finds any licensee guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

      * * *

      1. Revocation or suspension of a license.

      2. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

      3. Issuance of a reprimand.

      4. Placement of the licensee on

         probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or to work under the supervision of another licensee.

      5. Restriction of the authorized scope of practice by the certified public accountant.

      
      

8. Rule 21A-36.004, Florida Administrative Code, sets forth the disciplinary guidelines and the range of penalties for violations of Chapter 373, Florida Statutes. The penalties for a violation of Section 373.323(1)(g), Florida Statutes, range from a minimum penalty of a letter of guidance to a maximum penalty of a fine and revocation, depending on the type and circumstances of the violation.

   
   

9. In this case, the Department has established by clear and convincing evidence that the Respondent failed to provide accounting services in accordance with accepted accounting standards. Consequently, Respondent is guilty of violating Section 373.323(1)(g), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Accountancy enter a final order requiring the Respondent to complete 24 hours of continuing education regarding compliance with the SSARS guidelines, and placing the Respondent on probation with his work to be reviewed, at his expense, by a

consultant or certified public accountant approved by the Board, for a period of one year following completion of the continuing education.

DONE and ORDERED this 19th day of July, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990.

COPIES FURNISHED:

Tobi Pam

Senior Attorney

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Frank Berman

P.O. Box 14156

North Palm Beach, Florida 33408

Martha Willis Executive Director Board of Accountancy Suite 16

4001 Northwest 43rd Street Gainesville, Florida 32606

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-006115

Orders for Case No: 89-006115