STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4100

)

SILVIA IBANEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 27, 1991, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR RESPONDENT: Tobi C. Pam, Esquire

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

FOR RESPONDENT: Silvia S. Ibanez, Esquire

Post Office Drawer 7667 Winter Haven, FL 33883

and

Michael P. Sampson, Esquire Holland & Knight

Post Office Box 32092 Lakeland, FL 33802-2092

STATEMENT OF THE ISSUES

1. Count I of the Amended Administrative Complaint as modified by the August 22, 1991 Order on Reconsideration alleges Respondent Certified Public Accountant (CPA) practiced public accounting in an unlicensed firm by appending the CPA designation after her name in the telephone book and on business cards in violation of Sections 473.323(1)(a), (g), and (h) F.S. and Rule 21A-20.012 F.A.C.

   
   

2. Count II of the Amended Administrative Complaint as modified by the August 22, 1991 Order on Reconsideration alleges that Respondent CPA violated Sections 473.323(1), (g), and (h) and Rule 21A-24.001(1)(g) F.A.C. by appending the certified financial planner (CFP) designation along with the CPA designation after her name in the telephone book and on business cards, in that the CFP designation allegedly is an unapproved specialty of accountancy.

3. Count III of the Amended Administrative Complaint as modified by the August 22, 1991 Order on Reconsideration alleges that Respondent CPA practiced public accounting by holding herself out as a CPA by appending the CPA designation after her name in the telephone book and on her business cards, implying that she abides by the provisions of Chapter 473 F.S., and is thereby in violation of Sections 473.323(1)(f), (g), and (h) F.S. and Rule 21A-24.001

   F.A.C. [no specific subsections cited].

   
   

   PRELIMINARY STATEMENT

   
   

   Silvia S. Ibanez (Ibanez) filed a petition on May 10, 1991 challenging the validity of Rule 21A-20.012 F.A.C., one of the rules upon which this instant disciplinary action by the Department of Professional Regulation (DPR) against Respondent Ibanez is based. That case was styled Ibanez et al. v. Board of Accountancy et al., DOAH Case No. 91-3336R. On June 13, 1991, DPR filed this instant disciplinary action against Ibanez. The initial administrative complaint was triggered by anonymous notification to DPR of the contents of Ibanez' telephone listings and business card. The two cases were consolidated.

   
   

   DPR filed an amended administrative complaint on July 30, 1991, which amendments were opposed by motion. In consideration of those motions, the amended administrative complaint was modified by the Order of Reconsideration entered August 22, 1991.

   
   

   After bifurcation and formal hearing in the rule challenge, the instant disciplinary case was heard in formal hearing on August 27, 1991.

   
   

   DPR had three exhibits admitted in evidence and presented the oral testimony of Louis Dooner, Elise Rice, and Martha Willis.

   
   

   Ibanez had admitted twelve exhibits and presented the oral testimony of Robert Goss. Respondent Ibanez also testified on her own behalf.

   
   

   A transcript was provided.

   
   

   The parties also stipulated that the testimony and exhibits from the rule challenge, Ibanez et al. v. Board of Accountancy et al., DOAH Case No. 91-3336R, would be copied, certified, and adopted into the record of the instant case.

   That has been accomplished.

   
   

   All timely filed proposed findings of fact have been considered and ruled on in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

   
   

   This recommended order relates solely to the instant disciplinary action.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent Silvia S. Ibanez is a practicing attorney, a member of the Florida Bar, and holds active Florida CPA License No. 10842, currently in good standing. She is also a Registered Investment Advisor with the Florida Division of Securities and a certified financial planner (CFP). At all times material, she has been actively certified as a CFP in good standing with the International Board of Standards and Practice for Certified Financial Planners (IBCFP).

      
      

   2. The IBCFP is a corporation. "CFP" and "certified financial planner" are registered trademarks. The IBCFP has no governmental affiliations within

      the state of Florida. The Florida Board of Accountancy has no involvement in the CFP accrediting process and no proprietary interest over the CFP mark.

      
      

   3. As a licensee with the federal Securities and Exchange Commission, Ibanez is required to, and does, disclose the fact that she is a CPA.

      
      

   4. Ibanez' CPA certificate (like all Florida CPA certificates) authorizes her to display her CPA credentials. The CPA certificate represents that the recipient,

      
      

      . . . has passed all examinations and has met all other requirements prescribed by law and by rule of this board for certification as an expert public accountant, and *is therefore entitled to append the letters CPA after this registrant's name to evidence registration by this board as a Certified Public Accountant.* [Emphasis supplied between *]

      
      

   5. The Board of Accountancy's only classifications of CPA licenses/licensees are "active" or "inactive." "Active" and "inactive" refer to the status of the CPA license and do not refer to or imply that the licensee is actively practicing public accounting. One can be an actively licensed CPA and not be practicing public accounting.

      
      

   6. The Board of Accountancy issued a letter opinion to Ibanez that a CPA who offers financial planning services for a fee but who does not hold out as a CPA or become associated with financial statements would not be practicing public accounting.

      
      

   7. Ibanez is listed in the yellow pages under the heading, "Attorneys," as, "Ibanez, Silvia, S., CPA, CFP." Respondent also is listed in the white pages as "Ibanez, Silvia S., CPA CFP atty." On their face, there is nothing false or fraudulent about these listings. As an attorney, Petitioner also places "CPA" after her name on her business cards and on her letterhead. The Respondent's business card states "Silvia Safille Ibanez, JD, CPA, CFP." DPR contends that because Petitioner "holds out" to the public as a CPA, uses accounting skills, and provides one or more types of management, advisory or consulting services, she is currently "practicing public accounting."

      
      

   8. Ibanez is not listed in the yellow pages under "accountants," "accountants, certified," or "CPAs."

      
      

   9. Neither the CFP nor CPA credential is part of the firm name, "Silvia S. Ibanez, P.A. - Law Offices," which also appears on Ibanez' business card. Ibanez' telephone directory listings and card at issue show the CPA and CFP credentials strictly appended to Respondent's individual name.

      
      

   10. Louis Dooner, accepted as an expert certified public accountant, testified that the Respondent is involved in the practice of public accounting because by merely appending the CPA designation after her name on her business cards, she is telling the public that she is offering to perform services that CPAs perform.

       
       

   11. Respondent Ibanez currently operates as a sole practitioner of law employed by the law firm of "Silvia S. Ibanez, P.A." As such, she provides specialized legal services for her clients not provided by CPAs. As part of her

       current, normal professional activities as an attorney, she provides all types of tax services to her clients, including tax opinion work, representation before the Internal Revenue Service, and evaluation of the tax consequences of certain transactions. She also performs financial counselling and planning for her clients. In doing so, she utilizes both her legal education, training, and experience and her education, training, and experience as a CPA. Prior to admission to the Florida Bar, Ibanez was employed by two CPA firms where she did substantially similar work, plus audits.

       
       

   12. It is conceded by the parties that it is possible to practice law and public accounting in the same business activity and that many activities conducted by professionals and nonprofessionals other than by CPAs and other than by attorneys are identical to activities performed by CPAs engaged in public accounting. For instance, anyone can legally prepare a tax return. Bookkeepers and free-lance tax assistors of all sorts are unregulated in any way.

       
       

   13. Truthful use, communication, or disclosure of the CPA credential by an actively licensed CPA does not per se constitute false, misleading, or deceptive advertising. The evidence does not support a finding that withholding truthful disclosure that one has earned the CPA credential benefits the public welfare or effects the purposes of the enabling legislation, or indeed, how such nondisclosure could promote them, particularly since it has been shown that persons of considerably lesser competency and achievement levels in the discipline of accounting may legally offer to the public almost all the services provided by CPAs.

       
       

   14. The use of the term "CPA" implies a specific competency to the public. The fact that Ibanez is a CPA is valuable to her legal clients. CPA status is a valuable property right to each CPA, and the ability of a practicing attorney to publicize the fact that s/he holds an active CPA license is a valuable asset to that individual.

       
       

   15. The only activity among public accounting activities that is a unique activity of CPAs is the "attest" function. See, Section 473.322(1)(c) F.S. There is no evidence that Respondent Ibanez attests as a CPA in the course of her law practice or that she personally performs audits.

       
       

   16. Ibanez testified credibly that her intent in appending the CPA and CFP credentials solely to her own name is to indicate that she is, in her own right, individually licensed as a CPA and CFP.

       
       

   17. Respondent Ibanez has clearly marked her office premises with all the indicia of a law office, including two signs posted outside the building itself. One sign specifies that the building constitutes "law offices," that "Silvia S. Ibanez, P.A." is located there, and that Ibanez is an "attorney at law," with no reference to her CPA or CFP credentials. Another sign specifies, "law offices," without any reference to her CPA or CFP credentials. A potential client must pass these two signs just to enter the building that houses Ibanez' law office. Once in the building, a potential client also must be admitted by a secretary to Ibanez' inner office.

       
       

   18. Ibanez has consistently required her secretary to screen all telephone calls and potential clients who enter the office to be certain that persons seeking out Ibanez will be fully informed that Ibanez is not offering strictly accounting services and that she is practicing law. Ibanez also personally makes that information clear to individuals at each initial office consultation

       and consistently follows up office consultations at which her legal employment has been negotiated with letters and/or employment contracts which set forth the parameters of the legal services she has agreed to perform for clients.

       
       

   19. Elise Rice is an employee of Petitioner Department of Professional Regulation who has earned a vocational school accounting diploma. She is not a CPA, nor is she an attorney. Ms. Rice testified that she, personally, drew the conclusion from looking at Respondent's business card that the Respondent was a CPA, but that she did not know what CFP or JD signified and therefore she would not assume from the card that Ibanez was a lawyer or a certified financial planner. Clearly, the designation "CFP" did not suggest to Ms. Rice that Ibanez was advertising either a specialty or particular competence in public accounting.

       
       

   20. Ms. Rice further stated that, despite Ibanez' business card's clear use of the term "law offices," she would continue to believe that Ibanez was doing both CPA work and legal work out of "law offices." Ms. Rice further stated that even if she telephoned ahead and spoke to a secretary who clearly indicated that Ibanez was a CPA but was working as a lawyer, she would persist in believing that Ibanez was doing both CPA work and legal work out of "law offices." Ms. Rice also testified that if she arrived at Ibanez' office building and was confronted by the sign posted there which clearly indicates Ibanez is an attorney at law and the two signs that clearly state that the building houses only "law offices," she would then believe that she had come to the wrong place to find Ibanez the CPA. However, Ms. Rice conceded that, under the latter circumstances, the premises were, indeed, law offices. Ms. Rice's personal view that Ibanez must be acting as a CPA in the face of significant information to the contrary is not persuasive that the average layman would be misled by Ibanez' business card and telephone listings in the face of all her other disclosures.

       
       

   21. One who has initially consulted the yellow pages of the telephone directory under the heading "attorneys" would most logically infer from Ibanez' yellow pages listing that Ibanez is a practicing attorney who is dually licensed as a CPA and who possesses a CPA's education, training, experience, and skills and that Ibanez is offering to act as a lawyer capable of applying her additional education, training, experience, and skills as a CPA and CFP.

       
       

   22. The inferences that the average viewer might draw from Ibanez' white pages telephone listing and her business card are more blurred, but Ibanez demonstrated, and it is conceded by both parties, that an individual may have the opportunity to disabuse members of the public that s/he is engaged in the activity of the practice of public accounting or that s/he is offering all the services normally associated with a CPA, as opposed to law or some other profession, at least where there is direct contact by letter or telephone.

       
       

   23. It may be reasonable that at least until making direct contact with Ibanez or her office staff, the average viewer of either the telephone listings or the card would assume that, as a CPA, Ibanez is subject to disciplinary oversight by the licensing authority for accounting functions only and that she abides by all Board of Accountancy regulations while doing accounting. However, prior to any meaningful employment, Ibanez exercises reasonable care to disabuse the average viewer of that belief.

       
       

   24. Since 1982, the Board has consistently issued letter opinions on an individual basis to the effect that the designation "certified financial planner" is an accountancy specialization which has not been approved by the

       Board and further holding that "CFP" could not be displayed by CPA licensees on stationery or in yellow pages listings in conjunction with the CPA designation. The Executive Director of the Florida Board of Accountancy did not know how "certified financial planner" came to be viewed as a specialty designation of certified public accounting, and the letter opinions do not set forth the Board's rationale for considering it as a specialty. The Board has adopted no rule to that effect. Further, in this proceeding, the agency has not proven any rationale for the policy set forth in the Board opinions.

       
       

   25. The agency presented no evidence by way of anecdotal experience, professional studies, or accumulated data to show that licensed CPAs or certified CFPs have ever mislead members of the public purely by displaying their credentials in the manner Ibanez has done here.

       
       

   26. DPR knows of no complaint and has never received any complaint from a member of the public regarding Ibanez' professional activities or advertising. Nor is there any evidence that any member of the public has ever been confused about whether or not Ibanez was practicing accounting or law or financial planning or that any member of the public was mislead into hiring Ibanez under the impression that she would be acting as a CPA solely and not as an attorney, or that she would be performing audits or performing the attesting function of a CPA.

       
       

   27. Upon the scenario established in the case sub judice, Ibanez is not guilty of any fraudulent advertising so as to mislead the public to the effect that she abides by all regulations of the Board of Accountancy.

       
       

       CONCLUSIONS OF LAW

       
       

   28. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

       
       

   29. Respondent is charged in the three-count amended administrative complaint with several violations of Sections 473.323(1)(a), (f), (g), and (h) and of Rules 21A-20.012 and 21A-24.001 F.A.C solely because she is alleged to be "practicing public accounting or accountancy." The counts overlap in some respects as discussed infra.

       
       

   30. Section 473.302(4) F.S. provides, in pertinent part:

       
       

4. "Practice of," "practicing public accountancy," or "public accounting accounting" means:

   1. Offering to perform or performing for the public one or more types of services involving the use of accounting skills, or one or more types of management advisory consulting services, by a certified public accountant, or firm of certified public accountants, of this state, including the performance of such services in the employ of another person; or

   2. Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory or consulting services, by any other person

holding himself or itself out as a certified public accountant or firm of certified public accountants, including the performance of such services by a certified public accountant in the employ of a person so holding himself or itself out.

However, these terms shall not include services provided by the American Institute of Certified Public Accountants or the Florida Institute of Certified Public Accountants, or any full service association of certified public accounting firms whose plans of administration have been approved by the board, to their members or services performed by these entities in reviewing the services provided to the public by members of these entities.

1. Section 473.323(1) F.S. provides, in pertinent part:

   
   

   473.323 Disciplinary proceedings.

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

      1. Violation of any provisions of s. 473.317, s. 455.227(1), or any other provisions of this act;

   * * *

   1. Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content;

   2. Upon proof that the licensee is guilty of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of public accounting;

   3. Violation of any rule adopted pursuant to this act or chapter 455;

   * * *

2. Rule 21A-20.011 F.A.C. defines "practice of," or "practicing public accountancy" as follows:

   
   

   21A-20.011 Practice of, or Practicing Public Accountancy

   "Practice of, or practicing public accountancy" as defined by Section 473.302(4), F.S., shall exclude any of the following:

   1. Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473, or

   2. Activities of licensees who do not hold themselves out as CPAs and who are not associated with financial statements, or

   3. Activities of licensees who do not hold themselves out as certified public accountants.

3. Rule 21A-20.012 F.A.C. attempted to define "holding out," as follows: 21A-20.012 Holding Out

   "Holding himself or itself out" as used in

   F.S. 473.302(4) is defined as publicizing that the licensee is a certified public accountant when providing, or offering to provide services or products to the public, in such manner that an uninformed person may not be able to differentiate whether or not the licensee may also be in the practice of public accounting. The display of the CPA certificate and license issued by the Department of Professional Regulation shall not constitute holding out under the terms of this rule. All other publication of the fact that a licensee is a CPA constitutes holding oneself out.

   
   

   However, Rule 21A-20.012 F.A.C. has been ruled invalid in a Final Order entered simultaneously herewith in Ibanez et al. v. DPR, Board of Accountancy, DOAH Case No. 91

   
   

4. Rule 21A-24.001 F.A.C. is a rule of many subparts defining and precluding certain forms of advertising by CPAs.

   
   

5. In their prehearing stipulation, the parties stipulated, as fact, that the Board of Accountancy will not deem Ibanez' activities, including those of an accounting nature, to be public accounting activities if any of the three exclusions under Rule 21A-20.011 F.A.C. apply. This stipulation is more in the nature of a stipulation of law than one of fact and has been treated as such. The parties also stipulated as matters of law that the exclusion in Section (3) of Rule 21A-20.011 F.A.C. is wholly dependent on the definition of "holding out" and that the credential "CFP" is not a "self-designation" as used in Rule 21A- 24.001(1)(g) F.A.C.

   
   

6. DPR asserted that Ibanez is engaged in "practicing public accounting" as set forth in one or both of the definitions of that term contained in subparagraphs (a) and (b) of Section 473.302(4) F.S. Ibanez countered to the effect that she was exempt from those statutory definitions on the basis of one or more of the three exclusions to the term "public accounting," which are set forth in Sections (1), (2), and (3) of Rule 21A-20.011 F.A.C., and therefore, she could not be held to have violated any portion of Chapter 473 F.S. More specifically, Ibanez urged that because she is working as an attorney within a

   P.A. (which she asserted is an employer not required to be licensed under Chapter 473 F.S.), she falls under exception 21A-20.011(1) F.A.C.

   
   

7. First, Rule 21A-20.011 F.A.C. cannot be fairly interpreted or legally construed as a blanket exemption from the applicability of all Chapter 473 F.S. provisions. Minimally, Ibanez remains subject to the Chapter's payment of fees, continuing education, and good moral character requirements. Secondly, Ibanez' argument with regard to Section (1) of that rule is not persuasive, since she renders personalized services in her own right directly to the public,

   regardless of certain liability and tax protections afforded her personally by the "P.A." status of her law firm.

   
   

8. Whether or not Ibanez comes within the remaining exceptions set forth in Sections 21A-20.011 (2) and (3) F.A.C. depends upon how the term "holding out" as used therein is interpreted. The definition of "holding out" is not wholly tied to the invalidated rule, 21A-20.012 F.A.C. Absent that rule, interpretation of the statutory term "holding out" is appropriate. Normally, the clear common meaning of the statutory term would be applied. Unfortunately, in this proceeding, statutory interpretation is still rendered "circular" due to Rule 21A-20.011(2) and (3) F.A.C.

   
   

9. The definition of "practicing public accounting" contained in Section 473.302(4)(a) F.S. encompasses Ibanez, who is a CPA licensee. That definition covers "offering to perform or performing for the public one or more types of services involving the use of accounting skills, or one or more types of management advisory consulting services, by a certified public accountant, . .

   ." regardless of whether or not the CPA "holds out." [Emphasis supplied] However, Sections (2) and (3) of Rule 21A-20.011 F.A.C. address Section (a) as well as (b) of 473.302(4) F.S. The rule provides that, "'Practice of, practicing public accountancy' as defined by Section 473.302(4) F.S. shall exclude any of the following . . . (2) activities of licensees who do not hold themselves out as CPAs and who are not associated with financial statements, or

   (3) activities of licensees who do not hold themselves out as certified public accountants." [Emphasis supplied] It is fairly debatable whether Rule 21A- 20.011(2) and (3) F.A.C. legitimately interpret the legislative intent of Section 473.302 (4)(a).1/ It is also fairly debatable whether or not Rule 21A-

   1. F.A.C. exceeds the Board's statutory mandate and insinuates the Board's discipline into other professions. However, no petition to determine the validity of Rule 21A-20.011 F.A.C. has been filed. Therefore, Rule 21A-20.011

      F.A.C. continues to be entitled to the great weight normally afforded existing agency rules.

      
      

10. Great weight must be afforded to the agency's interpretation of the statutes it administers. It is recognized that DPR and the Board have consistently declined to prosecute any CPA offering all the services Ibanez does unless that CPA was also "holding out" in some manner. It is further recognized that in the instant case, DPR has stipulated that if any of the three exemptions in Rule 21A-20.011 F.A.C. applies, then Ibanez' activities, including those of an accounting nature, do not constitute public accounting activities. Applying the three foregoing principles, it ultimately must be concluded that Ibanez' activities, even though she is a licensed CPA, do not constitute "practicing public accounting" unless she is one of those "holding themselves out as certified public accountants."

    
    

11. Ibanez interprets financial statements, but she is not "associated" with them in the sense that term is normally applied to CPAs. She is not attesting or performing audits. She is not performing any activity that requires licensure by the Board of Accountancy. The Board admittedly could not discipline a non-CPA for performing the accounting activities Ibanez is performing.2/ Some of the activities Ibanez performs are the same as activities performed by CPAs. Many are not. As an attorney, she also performs specialized services for her clients that are not performed by other CPAs. Her telephone listings and business card do not "hold out" that she will perform any activity exclusive to public accounting or that she will perform work as a CPA. All indicia of her office premises, all of her disclaimers, and the majority of actual activities she performs support a conclusion that she is not "holding

    herself out as a certified public accountant." It is therefore concluded that she is not "holding herself out as a certified public accountant" practicing public accountancy so as to be subject to discipline for the violations charged in the instant amended administrative complaint. Nor is she guilty of any fraudulent advertising so as to mislead the public to the effect that she abides by all the regulations of the Board of Accountancy. Moreover, if the purpose of the police power here exercised is to protect the public, it is difficult to see how the public is harmed by Ibanez' advertising or services, which services she provides only after reasonable--indeed elaborate--efforts at avoiding any misapprehension of her CPA status by those employing her.

    
    

12. In making the determination that Ibanez is not "holding herself out as a CPA," the undersigned has weighed both the permissions granted to the Respondent by the Board of Accountancy in its certificate of licensure and the permissions granted to the Respondent by the Legislature under Section 473.322 F.S.3/ The undersigned also has considered the thrust of the opinions in Cenac

    v. Florida State Board of Accountancy, 399 So. 2d 1013 (Fla. 1st DCA 1981) and Florida Accountants Assoc. v. Dandelake, 98 So. 2d 323 (Fla. 1957). Dandelake considered the occupational rights of accountants who are not certified viz a viz the Board's regulatory powers. Cenac considered the situation of an inactively licensed CPA performing many but not all the services normally considered "practicing public accountancy."

    
    

13. Although this is a case of first impression with regard to an actively licensed CPA and those cases were decided with regard to different predecessor statutes and absent any similar rule in place, they provide direction. Those cases are persuasive (1) that a balanced weighing of all indicia of the "practice of public accounting" is to be done when determining whether or not a practitioner is "holding out as a CPA," (2) that a single indicator of whether or not a practitioner is "holding out" should not outweigh any other indicator, and (3) that the degree of benefit derived by the CPA from use of his or her CPA status must also be balanced against any real or potential harm therefrom to the public.

    
    

14. On their face, Ibanez' business card and yellow pages listing may reasonably be considered "advertising." "Advertising" is commonly thought of as constituting "holding out" a person, a product, or a service, but in this case, Ibanez' business card and yellow pages listing go no further than conveying to the public passive, but valuable, biographical information which every actively licensed CPA is entitled to assume, use, and append to his name in a variety of ways. The record is utterly devoid of any evidence that Ibanez has mislead the public into believing she would perform all the functions of a CPA. The fact that her listing in the yellow pages is under the heading "attorneys" and is not associated with accountancy headings is especially significant in this regard, as is the care with which she has labelled her law office and instructed her staff. No dishonesty or misleading activity has been shown in this case, except to the extent that advertisement of her CPA status initially inaccurately suggests that she is subject to broad disciplinary oversight by the licensing agency. Her subsequent disclaimers as to what she will or will not undertake professionally would seem to "cure" any potential for the public to be mislead by her advertising.

    
    

15. In analyzing all indicia of "holding out," disclaimers may be considered. In the recommended order underlying the Cenac case, Hearing Officer Ayers considered as significant all disclaimers by the practitioner to his clients that the practitioner was not practicing public accounting or was not offering all of the services normally associated with CPA status. The reviewing

    court did not disturb the hearing officer's assessment that such disclaimers are significant to determine the issue of "holding out" and the issue of whether there had been actual or potential fraud upon the public.4/

    
    

16. Although DPR urges a more literal and far more restrictive reading of the term "hold themselves out as public accountants," such a highly restrictive interpretation is not appropriate when dealing with commercial free speech. Commercial free speech constitutes expression related exclusively to the economic interests of the speaker and the audience. DPR's concept that merely appending the designation "CPA" after Ibanez' name misleads the public and must be prevented would constitute a speaker specific, unqualified ban on a category of expressive activity without any appropriate limitation based on time, place, or manner. Since this record is devoid of proof that anyone has been mislead by Ibanez, and it is clear her disclosure is valuable to her audience, great care must be taken before applying a highly restrictive interpretation of the statute. Contrary to DPR's urging, where a less restrictive interpretation is available, one should not assume that any benefit to the CPA, no matter how small that benefit may be, will be sufficient to concomitantly subject the CPA to discipline absent some demonstrated harm to the public. Consequently, where, as here, no evil to be prevented by the police power has been clearly demonstrated, the balance weighs against finding Ibanez to be "holding out."

    
    

17. The concept of balancing the benefit derived by the speaker (a CPA in this case) against the evil sought to be defended against by the police power of the state was only peripherally discussed in Cenac, but that balancing test for interpreting statutes has since been echoed and refined in other cases involving commercial free speech. See, Central Hudson Gas v. Public Service Commission, 447 US 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) and Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). The potential for harm to the public must be recognizable and must clearly outweigh any anticompetitive impact, and other, less restrictive means of regulating the licensee must not be available. Blanket prohibitions on commercial speech are disfavored in the law. Any restriction on commercial speech requires the government goal to be substantial and the cost to be carefully calculated. There must be a "reasonable fit" between the statute's ends and the means chosen to accomplish those ends. Government may ban commercial speech that is more likely to deceive the public than to inform it or commercial speech that is related to illegal activity. However, in most other contexts, the First Amendment prohibits regulation based on the content of the speech, provided the content is basically truthful. Where the information is presented in a way that is not deceptive it should be permitted even though potentially misleading. See, Fane v. Edenfield, Case No. 90-3943 U.S. Ct of Appeals, 11th Circuit, 945 F. 2d 1514 (October 30, 1991), specifically ruling that Chapter 473 F.S. "must be narrowly tailored to achieve its anticipated objectives." See also, Bd. of Trustees of State University of New York v. Fox, 492 US 469, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989); Shapero

    v. Kentucky Bar Ass'n, 486 US 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475; Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 US 328, 106 S. Ct. 2968, 92 L. Ed. 2d 266 (1986); In re R.M.J., 455 US 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982); and Consolidated Edison Co. of N.Y., Inc. v. Public Service Cmm'n, 447 So. 2d 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980). If this statutory and regulatory scheme were interpreted as DPR requests, it could be determined to be unconstitutional. Courts have a duty, if reasonably possible and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality and to construe it so as not to conflict with constitutional provisions. See, Industrial Fire & Casualty Ins. Co. v. Kwechin, 447 So. 2d 1337 (Fla. 1983); State v. Gale Distributors, Inc., 349 So. 2d 150 (Fla. 1977); Marsh v. Garwood, 65 So. 2d 15 (Fla. 1953).

    Accordingly, a construction of the statutory term "holding out" in consonance with the rationale in Cenac and Dandelake that the public is only harmed if substantially misled avoids any potential constitutional conflict in interpreting the provisions of Chapter 473 F.S. What is important in Ibanez' case is that, although she is an actively licensed CPA, she has induced no unwarned reliance on her CPA certification. She has made full disclosure with disclaimers appropriate to the situation.

    
    

18. The foregoing conclusion that Respondent Ibanez is not "holding herself out as a CPA" so as to be subject to license revocation, suspension, or other discipline by the Board resolves in her favor all issues raised in all three counts of the Amended Administrative Complaint. However, that pleading is somewhat less than clear, so some further commentary as to the specific charges may be in order.

    
    

19. Count I of the Amended Administrative Complaint originally contained allegations under Sections 473.309 and 473.3101 F.S. that Ibanez' law firm should have been licensed and was unlicensed as a certified public accounting firm. That allegation was withdrawn by Petitioner as reflected in the August 22, 1991 Order on Reconsideration. Consequently, Count I of the Amended Administrative Complaint herein only charged Ibanez pursuant to Sections 473.323(1)(a) F.S. [violation of Sections 473.317 and 455.227(1) or any other provisions of Chapter 473 F.S.], Sections 473.323(1)(g) F.S. [fraud or deceit, or of negligence, incompetency or misconduct in the practice of public accounting] and 473.323(1)(h) F.S. [violation of any rule adopted pursuant to Chapters 473 or 455], and Rule 21A-20.012 F.A.C., now determined to be invalid. [Emphasis supplied]

    
    

20. Section 473.317 F.S. involves competitive negotiation wherein the licensee will attest as an expert in accountancy. Section 455.227(1) F.S. is a professional disciplinary "catchall." The Amended Administrative Complaint herein alleges no specific acts constituting competitive negotiation and no factual evidence to that effect was introduced at formal hearing. The evidence is clear that Ibanez does not perform the "attest" function unique to CPAs which is an integral part of Section 473.317 F.S. DPR's proposed recommended order does not even argue those issues. Due to DPR's withdrawal of the charges in Count I specifically citing Sections 473.309 and 473.3101 F.S., as recognized in the Order on Reconsideration, it must be concluded that Ibanez could not be held in this proceeding to have violated those statutory provisions which were withdrawn. Therefore, even if Ibanez were practicing public accounting and was therefore subject to the Board, those charges alleged under Count I were not established in this case.

    
    

21. Under Count II, Ibanez was also charged with violating Sections 473.323(1)(g) [fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of public accounting] and (h) F.S. [violation of any rule adopted pursuant to Chapters 473 or 455 F.S.] and Rule 21A-24.001(1)(g) F.A.C. Therein, Ibanez was prosecuted for her use of the CFP designation as a specialty designation on her business cards and in her yellow pages listing. In Count III, Ibanez was prosecuted for using her CPA designation in such a way that it is "misleading," in that she has allegedly represented to the public that she abides by all provisions of Chapter 473 F.S. Count III specifically charged Ibanez pursuant to Section 473.323(1)(f) [advertising goods or services in a manner which is fraudulent, false, or misleading in form or content] and again pursuant to Sections 473.323(1)(g) and (h) F.S. and apparently under all of the sections of Rule 21A-20.001 F.A.C.

22. Assuming, arguendo, that Ibanez had been found to be "practicing public accounting" so as to be subject to the advertising rule, she still could not be found guilty of committing any violation thereof alleged under Counts II or III upon the facts in this record. Either because of her active CPA licensure or because Ibanez has, in fact, earned the CPA and CFP credentials or because the rule sections simply do not apply, Ibanez' situation does not fall within Sections (1)(a) through (f) or Section (1)(h) of Rule 21A-24.001 F.A.C. With regard to the remaining sections of that rule, (1)(j), (g), and (i), the Board's opinions have declared "CFP" to be an unrecognized specialty of public accounting. The Board also has never recognized the IBCFP. However, the Board has promulgated no rule concerning "CFP" specifically and has failed to prove up any rationale for its policy with regard to "CFP" or "certified financial planner" contained in its letter opinions. Ms. Rice's testimony belied any suggestion that the CFP designation used with the CPA designation implies specialization in public accounting or misleads the public to that effect. Certainly, Ms. Rice did not infer that Ibanez' use of the abbreviation "CFP" "held out" a specialty of public accountancy. With further regard to (1)(g) of that rule, it should be recognized that Ibanez has not stated on her cards or in the yellow pages that CFP is an accountancy specialty or that by obtaining that credential, she is a specialist in public accounting, and DPR has stipulated that for purposes of Section 21A-24.001(1)(g), "CFP" is not a "self- designation." Rule 21A-24.001(1)(i) specifies that a CPA may not state a non- Board form of recognition using the word, "certified." "CFP" is a form of recognition by an entity other than the Board, but there is no clear and convincing evidence of a violation of Section 21A-24.001(1)(i) since Ibanez has only implied the word "certified" by using the abbreviation "CFP." There also is no proof her use of "CFP" and/or "CPA" and "CFP" has mislead anyone.

    
    

23. Therefore, even if Ibanez were practicing public accounting and were therefore subject to the Board, none of the charges alleged under Counts II or III were established in this case.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Accountancy enter a Final Order that:

1. Finds Respondent Ibanez is not "holding herself out as a certified public accountant" and

   
   

2. Finds her not guilty of all charges alleged under Counts I through III and dismisses them.

DONE and ENTERED this 15th day of January, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1992.

ENDNOTES

1/ It seems abundantly clear that absent the exceptions of Rule 21A-20.011 F.A.C., Section 473.302(4)(a) F.S. would render actively licensed CPA Ibanez subject to Board discipline whether she "holds out" or not, and it is only Section 473.302(4)(b) which includes the term "holding out."

2/ Section 473.322(1)(c) F.S, which reserves the "attest" function strictly to CPAs, also specifies that, "This subsection shall not prevent the performance by persons other than certified public accountants of other services involving the use of accounting skills, including the preparation of tax returns and the preparation of financial statements without expression of opinion thereon.

3/ Section 473.322 F.S. permits a CPA to assume and use his or her validly earned credential and title and to put it in words, letters, abbreviations, signs, cards and devices so long as s/he is actively licensed. The credential provides much the same. See, Finding of Fact 4, supra.

4/ The opportunity and effectiveness for use of disclaimers by professionals so as to not mislead the public has most recently been explored in Peel v. Attorney Registration and Disciplinary Comm'n, --US--, 110 S. Ct. 2281, 110 L.Ed. 2d 83 (1990). See, also "Post-Peel Battles", The National Law Journal, Vol. 14 No.

17-18 (December 30, 1991 - January 6, 1992).

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-4100

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): DPR's 39 PFOF:

Accepted except where subordinate, unnecessary, or cumulative to the facts as found. Material which falls in any of those categories has not been utilized in the recommended order (RO): 1, 9-11, 13-15, 20, 24, 26, 34-36, 38.

Rejected as stated because as stated these PFOF are misleading or constitute unreconciled or isolated record evidence or constitute or contain a conclusion of law (COL) or constitute mere legal argument, but otherwise the subject matter is covered in the RO: 2-3, 12, 25, 27, 31-33, 37, 39.

Rejected as subordinate, unnecessary, or cumulative or otherwise nondispositive of the material issues once Rule 21A-20.012 is invalidated: 16- 19, 21-23, 28, 32.

Rejected as immaterial except to the degree covered in the RO: 4-8.

Accepted in part and rejected in part on issues of credibility; covered in the RO: 29-30

Respondent's 56 PFOF:

Accepted except where subordinate, unnecessary, or cumulative to the facts as found. Material which falls in any of those categories or which is material only to the rules challenge case and not this disciplinary case has not been

utilized in the recommended order (RO): 1-7, 10, 14, 17, 24, 34-35, 40, 42-46,

48-50, 52-56.

Rejected as stated because as stated these PFOF are misleading or constitute unreconciled or isolated record evidence or constitute or contain a conclusion of law (COL) or constitute mere legal argument, but otherwise the subject matter is covered in the RO: 11-13, 15, 19, 27, 39, 47, 51.

Rejected as subordinate, unnecessary, or cumulative or otherwise nondispositive of the material issues in this disciplinary case: 8-9, 16, 18, 20-23, 25-26, 28-33, 36-38.

Rejected as Immaterial: 41.

COPIES FURNISHED:

Michael P. Sampson, Esquire Holland & Knight

P. O. Box 32092 Lakeland, FL 33802-2092

Silvia S. Ibanez, Esquire

P.O. Drawer 7667

Winter Haven, FL 33883

Tobi C. Pam, Esquire

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Martha Willis Executive Director Board of Accountancy Suite 16

4001 Northwest 43rd Street Gainesville, FL 32606

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

John J. Rimes, III Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, FL 32399-1050

Kenneth R. Hart, Esquire Stephen C. Emmanuel, Esquire

J. Jeffry Wahlen, Esquire

Ausley, McMullen, McGehee, Carothers & Proctor

P. O. Box 391 Tallahassee, FL 32302

Julie Gallagher, Esquire Stowell, Anton & Kraemer

P. O. Box 11059

201 South Monroe Street, Suite 200 Tallahassee, FL 32302

Sydney S. Traum, P.A.

Semet, Lickstein, Morgenstern & Berger, P.A. Twelfth Floor, Ponce De Leon Plaza

201 Alhambra Circle Coral Gables, FL 33134

Thomas W. McCulloch, Esquire McCulloch, Ellis & Payne

6671 Southwest Freeway, Suite 800

Houston, TX 77074

Mr. James R. Brewster 2212 Yaupon

Tallahassee, FL 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF ACCOUNTANCY

STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCY,

Petitioner,

vs. DOAH CASE NO.91-4100

DPR CASE NO. 90-13805

SILVIA IBANEZ,

Respondent.

/

FINAL ORDER OF THE BOARD OF ACCOUNTANCY

THIS CAUSE came on before the Florida Board of Accountancy at a regularly scheduled meeting on April 23, 1992 in Tampa, Florida pursuant to a Proposed Recommended Order of Hearing Officer, Ella Jane P. Davis dated January 15, 1992. The Board, noting that no exception have been filed and after reviewing the complete record, including all exhibits, hereby enters this Final Order of the Board of Accountancy.

FINDINGS OF FACT

The Board after a complete review of the record and the transcript of the hearing in the above-style cause, hereby accepts the Proposed Findings of Fact of the Hearing Officer as set forth in her Recommended Order of January 15, 1992, with the exception of the following:

The second sentence of paragraph 7, and paragraphs 13, 21 and 23 of the Proposing Findings of Fact are legal conclusions and should not properly be in the Proposed Finding of Fact and are therefore struck. As to Proposed Finding of Fact No. 24. the next to the last sentence is partially incorrect, insofar as the Board has adopted a rule (Rule 21A-24.001(1)(g)-(j) [specifically Rule 21A- 24.001(1)(i)]) setting forth, in rule form, the Board's policy as to the use of the term "certified" and its relationship to false, fraudulent, deceptive and misleading advertising. As such therefore, for purposes of the disciplinary action, neither the Department of Professional Regulation, nor the Board of Accountancy (which is a nominal party to the disciplinary action) is required to prove up the rationale for that rule. Paragraph 27 is struck as a legal conclusion inappropriately found in the Proposed Findings of Fact.

CONCLUSIONS OF LAW

The Conclusions of Law of the Hearing Officer in her Recommended Order of January 15, 1992 erroneously misapply the provisions of Chapter 473, F.S., and

Chapter 21A, F.A.C., as well as misanalyze applicable provisions of the United States Constitution relating to regulations on commercial speech. In light of the foregoing, the Board of Accountancy is compelled to reject the Conclusions of Law of the Hearing Officer, and to substitute the following.

I

Initially it should be noted that, with the exception of the attest function, 1/ all other activities of certified public accountants are activities which are not prohibited to any non-CPA in the State of Florida. As a result, with the exception of the attest function, Chapter 473, F.S., is a "Title Act." To the extent that Chapter 473 is a Title Act, its sole purpose is to provide consumers with the knowledge that if they use a CPA's services, and those services are within the practice of public accounting, as defined in Section 473.302(4), F.S., that a CPA will be subject to technical, educational and other standards promulgated by the Florida Legislature and the Board of Accountancy. Further, a consumer is assured that the CPA will adhere to certain regulatory requirements deemed necessary by the Legislature of the State of Florida to assure the independence, objectivity and integrity of the CPA. 2/

As was noted in Abramson v. Gonzalez, 949 F.2d 1565 (11th Cir. 1992), as well as Smith v. California, 336 F.2d 530 (9th Cir. 1964), the function of a Title Act is not to preclude individuals who are not licensed from performing a certain set of tasks, but, rather to let the public know that those individuals who are licensed have met, and continue to meet, the standards set out by the legislature and the appropriate regulatory boards through statutes and rules.

In light of the foregoing, it is necessary to address what, under Florida Statutes, is the practice of public accountancy. The provisions of Section 473.302(4), F.S. define the practice of public accountancy as follows:

"Practice of," "practicing public accountancy," or "public accounting" means:

1. Offering to perform or performing for the public one or more types of services involving the use of accounting skills, or one or more types of management advisory of consulting services, by a certified public accountant, or firm of certified public accountants, of this state, including the performance of such services in the employ of another person; or

2. Offering to perform or performing for the public one or more types of services involving the use of accounting skills, or one or more types of management advisory or consulting services, by any other person holding himself or itself out as a certified public accountant or a firm of certified public accountants, including the performance of such services by a certified public accountant in the employ

   of a person so holding himself or itself out. However, these terms shall not include services provided by the American Institute of Certified Public Accountants or the Florida Institute

   of Certified Public Accountants, or any full service association of certified public account-

   ing firms whose plans of administration have been approved by the board, to their members or services performed by these entities in reviewing the services provided to the public by members of these entities.

   
   

   The Board of Accountancy has further refined the term in question through the promulgation of both Rule 21A-20.011, F.A.C, excluding certain activities from the practice of public accountancy," and Rule 21A-20.012, F.A.C.,4 defining the term "holding out" which is contained in Section 473.302(4)(b), F.S.

   
   

   To the extent therefore, however, that a CPA is providing one or more types of accounting skills and management advisory services to the public, and at the same time holding himself or herself out as a CPA, such an individual is practicing public accounting. Any other construction of the definition of the practice of public accounting would permit individuals, engaged in offering accounting services to the public and holding the CPA license, to trade upon the fact of their licensure, and to advertise that fact, while not being subject to the statutes and rules governing CPAs in the State of Florida. It is difficult to conceive how, to the extent Chapter 473 is a Title Act, it could legiti- mately be said to protect to the public health, safety and welfare, if individuals who trade on that Title in commerce while using their accounting skills for the public, are not subject to the jurisdiction of the Board of Accountancy. 5/

   
   

   The Hearing Officer, in coming to her conclusion that Respondent was not practicing public accountancy, and thus can not be guilty of false, fraudulent, deceptive or misleading advertising, depended largely upon a constitu- tional analysis, which, in the Board's opinion, is flawed. As is noted above, with the exception of the attest function (not at issue herein, since Respondent does not perform the attest function), Chapter 473 and is a Title, not a Practice act.

   
   

   In Abramson v. Gonzalez, supra, at pp. 1575-1577, the Eleventh U.S. Circuit Court of Appeals analyzed at length the impact of Title Acts, as they relate to First Amendment guarantees of freedom of speech. While holding that unlicensed individuals cannot be prohibited from using generic terms, which described activities that they are permitted to perform under a Title Act, the Eleventh Circuit was firm in its opinion, that, if "unlicensed" individuals call themselves "licensed", they would be engaging in false, deceptive or misleading advertising and be subjected to penal provisions, including criminal and injunctive proceedings.

   
   

   In the instant cause, Respondent is essentially engaged in the same type of activity which the Eleventh Circuit held could be banned by the State. In other words, Respondent advertises the fact that the she is a CPA, while per forming the same "accounting" activities she performed when she worked for licensed CPA firms, but she does not concede that she is engaged in the practice of public accounting so as to bring herself within the jurisdiction of the Board of Accountancy for any negligence or errors she may be guilty when delivering her services to her clients.

   
   

   Respondent is unwilling to acquiesce in the require- ments of Chapter 473 and Chapter 21A, F.A.C., by complying with those requirements. She does not license her firm as a CPA firm; forego certain forms of remuneration denied to individuals who are practicing public accountancy; or limit the ownership of her firm to other CPAs. Respondent places the term "CPA" after her name on her business cards and letterhead, and in the yellow pages of the telephone

   directory all of which, by any standard, must be considered advertising. 6/ Respondent further offers services to the public which, by her own admission, involve the use of the same accounting skills she used when she was performing accounting services in a CPA firm by so doing. Respondent has, in effect, told the public that she is subject to the provisions of Chapter 473, and the jurisdiction of the Board of Accountancy when she believes and acts as though she is not. 7/ In light of the foregoing, Respondent is in violation of Rule 21A-24.001 and Section 473.323(1)(f), F.S. by engaging in deceptive, false and misleading advertising.

   
   

   In order to analyze whether the Board's interpretation of its statute and rules is constitutional, one must turn to the Supreme Court's test for regulations on protected commercial free speech, set forth in Central Hudson Gas & Electric, Corp. v. Public Service Commission of New York, 447 U.S. 557,566, 100 S.Ct. 2343,2351, 65 L.Ed.2d 341 (1980), as follows:

   
   

   In commercial speech cases, then, a four part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether

   it is not more extensive than is necessary to serve that interest.

   
   

   It is obvious that the use of a professional license appellation such as "CPA" is a form of commercial speech which, in the case of a CPA who holds an active individual license, is not illegal or inherently misleading. Thus, the statutes which limit the use of "CPA" licensure designation do impact First Amendment rights and satisfy the first prong of the Central Hudson test.

   
   

   The second prong is satisfied, since it is obvious that the regulation of the practice of public accountancy is a valid governmental interest, indeed a vital one, see United States v. Arthur Young & Co., 465 U.S. 805,817-821,104 S.Ct. 1495,1503-1504, 79 L.Ed.2d 826 (1984), Mercer v. Hemmings, 170 So.2d 33

   (Fla. 1964).

   
   

   The rules and statutes in question satisfy the third prong by furthering the abovementioned governmental interest through making sure that only an individual who meets certain standards is permitted to call oneself a CPA. Included in those standards is the requirement that if an individual provides accounting services to the public while trading on the fact of his/her licensure, one must subject oneself to the statutes and rules governing the practice of public accountancy in the state. Needless to say, the use of the term "CPA" by an individual providing accounting skills and services to the public, while that individual at the same time asserts that one is not subject to the regulations of the statutory body created to regulate certified public accountants, would not further the purpose for CPA licensure set forth in Section 473.301, F.S.

   
   

   Finally, the statutes and regulations in question, which simply require that individuals, who trade on the fact of their licensure as CPAs while

   offering accounting skills and services to the public, must comport with the rules and regulations governing the practice of public accounting, is a "reasonable fit" between the public good, i.e., the know- ledger that any individual trading on the fact they are CPA, will be regulated by the public and agency in question, and the limitation on individual licensee's rights to call one- self a CPA while not complying with the requirements of the statute. Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480, 109 S.ct. 3028, 3034 106 L.Ed.2d 388 (1989). Since the statutes and regulations only apply to those individuals who are engaged in offering accounting services to the public, as oppposed to those who are in government or providing services only to their employer, it is appropriate that individuals should not be permitted to append the term "CPA" after their name, even though they hold an active license, if they are providing accounting services and skills to the public, but are not in compliance with all provisions of Chapter 473. 8/

   
   

   The Hearing Officer's ruling that Respondent's adver- tising that she is a CPA in the telephone directory and in her business communications, can be remedied by verbal and visual disclaimers is in error. In essence, Respondent advertises the fact that she is a CPA to the general public, and performs identical or similar services to those which Respondent admits she performed in licensed CPA firms. Respondent and the Hearing Officer, however, apparently believe that since Respondent could verbally tell potential clients that she was not practicing public accounting, that the clients would have no reasonable expectation that Respondent would be subject to the rules and regulations of the Board of Accountancy. Potential clients, however, would clearly see Respondents use of the title "CPA" in her advertisements as an inducement to contact Respondent and seek her services thinking that she was a licensee subject to the rules of the Board of Accountancy. Since Respondent uses her accounting skills in then providing services to clients, it is illogical to believe that any disclaimer would disabuse a client of believing that Respondent's fail- ure to meet adequate standards of professional competence would not result in disciplinary action by the very agency which granted her the license which she trades upon. It is axiomatic that the improper use of a Title when providing the services described by the Title by an individual either not licensed under the act, or unwilling to comply with various provisions of the statute and rules, when holding a license, is inherently misleading and may be prohibited.

   See Accountant's Society of Virginia v. Bowman, 860 F.2d 602, 605-606 (4th Cir. 1988). Since Chapter 473 and the rules promulgated thereto place reasonable conditions upon CPAs who wish to trade upon the fact of licensure in connection with using accounting skills and providing accounting services to the public, it is apparent that the Board's position that a CPA must comply with the statutes and rules when trading upon the fact of licensure as a CPA, constitutes a- "reasonable fit" for constitutional purposes. 9/

   
   

   II

   
   

   The Hearing Officer also found that the use of the term "CFP" (standing for Certified Financial Planner) by Respondent, in the telephone directory yellow pages, as well as on her business card and letterhead, was not a violation of Rule 21A-24.001, F.A.C., and Section 473.323(1)(f), F.S.

   
   

   Rule 2lA-24.OO1(1)(g)-(j) and (2) states as follows:

   
   

   1. No licensee shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive, or misleading, if it, among other things:

      1. States or implies that the licensee has received formal recognition as a specialist in any aspect of the practice of public accountancy unless he has in fact received such recognition and such recognizing agency is approved by the Board. In the event a licensee uses the term "specialty" or "specialist" or any other term tending to indicate that he specializes in any aspect of the practice of public accountancy the advertisement must state that the use of the term is a self-designation and is not sanctioned by the state or federal government in any advertise- ment or offering to the public unless such terms and recognition have been approved by the Board. However, a licensee may indicate the services offered and may state that practice is limited

         to one or more types of services when this is in fact the case; or

      2. Represents that professional services can or will be competently performed for a stated fee when this is not the case, or makes repre- sentations with respect to fees for professional services that do not disclose all variables

         affecting the fees that will in fact be charged; or

      3. States a form of recognition by any entity other than the Board that uses the terms "certi- fied," "public," or "auditor," or "auditing" however, this would not prohibit a licensee from disclosing that he is e CPA in another state or jurisdiction; or

      4. States or implies that the licensee has received formal recognition as a specialist in any aspect of the practice of public accounting, unless the statement contains a disclaimer stating that the recognizing agency is not affiliated with or sanctioned by the state or federal government. The advertisement must also contain the agency's requirements for recognition, including, but not limited to, educational, experience and testing. These statements must be in the immediate proximity of the statement that implies formal recognition as a specialist.

   2. As used in the rules of the Board, the terms "advertisement" and "advertising" shall mean any statements, oral or written, dissemi- nated to or before the public or any portion thereof, with the intent of furthering the purpose, either directly or directly, of selling public accounting services, or offering to perform public accounting services, or inducing members of the public to enter into any obligation relating to such public accounting services. For purposes of this rule, oral or written statements include business cards and letterhead.

Insofar as the Board has found above that Respondent is practicing public accounting, it is obvious, as a matter of law, that her advertisements in the yellow pages, business cards and letterhead of the fact that she is a Certified Financial Planner through the use of the initials "CFP", are violations of Rule 21A-24.001 as set forth above, and therefore, Section 473.323(1)(f), F.S.

Paragraph 25 of the Hearing Officer's Conclusions of Law, wherein she tasks the Board of Accountancy for not "proving up any rationale" for its rule relating to the use of the term "certified" is outside the purview of the instant Section 120.57(1) proceeding. A Hearing Officer of the Division of Administrative Hearings, when faced with a promulgated rule, must apply that rule to the facts set before her. It is not necessary for the agency to prove up the rationale for the rule in every Section 120.57(1), F.S. hearing relating to the application of that rule before the Division of Administrative Hearings.

Notwithstanding the foregoing, the rationale for the Board's prohibition of the publication of credentials using terms such as "certified" by CPAs practicing public account- ing when those designations have not been approved by the Board of Accountancy as specialities in the practice of public accountancy, is based upon the fact that, in the public lexicon, "certified", when used in conjunction with public accountancy, means state licensure or approval. See Peel v. Attorney Registration and Disciplinary Commission, U.S. , 110 S.Ct. 2294-95, (1990), (Marshall, J. concurring). It is the Board's position that the use, by a CPA, of any of the terms set forth in Rule 21A-24.001(1)(i), when those terms have not been approved by the Board is inherently misleading.

In balancing the public's right to know of attainments of CPAs in addition to their license as a CPA, it is the Board's position that the use of terms set forth in Rule 21A-24.001(1)(i), in conjunction with the term "CPA" and the practice of public accounting, are so close to the terms protected by state licensure itself, that their use, when

Respondent is hereby REPRIMANDED with the imposition of the reprimand being stayed until any appellate proceedings in this cause are completed.

DONE and ORDERED this 23rd day of April , 1992, by the Florida Board of Accountancy.

BERYL H. DAVIS, CHAIRMAN

ENDNOTES

1/ The attest function is defined as the independent opining on the truth and accuracy of financial statements, and is a function which is specifically permitted only to certified public accountants, see Section 473.322(1)(c), F.S.

2/ Including inter alia, Section 473.31s, F.S., and Rule 21A- 22, technical standards mandated by the legislature and promulgated by the Board of Accountancy; prohibitions on commissions and contingent fees, Section 473.3205, and 473.31, F.S.; requirements that a CPA not violate any of the disciplinary provisions of Chapter 473.323 and Rule 21A-36,

that a CPA's practice will comply with the licensure of partnerships corporations, and rules promulgated thereunder, see Section 473.309, and 473.3101, F.S. All of the foregoing are in addition to 473.322(1)(b), F.S., which requires that any individual using the term "CPA" in the State of Florida must hold an active license (including meeting all continuing education requirements) from the Board of Accountancy.

3/ This rule was promulgated to exempt certain activities of CPAs, from the practice of public accountancy either when those CPAs are not, in fact, offering accounting services to the public, but only to their employer, or when they are not associated with financial statements and/or when they are

not holding themselves out as certified public accountants. The rule was promulgated in order to address the Concerns raised in Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981). In Cenac, the First District Court of Appeal clearly indicated that to define the practice of public accountancy so as to foreclose the use of the broad range of accountancy skills to CPAs who do not trade on the fact of their licensure through advertising or public display of the appellation "CPA," and who are not engaged in the preparation of financial statements, could result in an unconstitutional and unreasonable attempt to regulate and prohibit activities of individuals who happen to hold licenses as CPAs, but who do not trade on the fact of their licensure as CPAs.

4/ This rule has recently been declared invalid, see Ibanez et al., v. State Board of Accountancy et al., DOAH Case No. 91-3336R, Opinion rendered January 15, 1992. Appeals pending before the First District Court of Appeal Case Nos. 92-439, 92-440. While the Board could rely on Rule 21A-

1. pending the appeal, see Rule 9.310(b)(2), Fla.R.App.P., the Board's ruling in the instant cause is based solely upon the provisions of Chapter 473 and other applicable rules.

   
   

   5/ It is specifically to be noted that other than by committing acts of fraud, see Section 473.323(1)(k), F.S., or lack of good moral character, see Section 473.323(1)(m), F.S., or similar violations CPAs can only be disciplined by the Board of Accountancy, if they are practicing public accountancy, and they are found guilty of the violations set forth in Section 473.323, F.S. In other words, with the abovementioned exceptions, CPAs who are not practicing public accountancy can not be disciplined by the Board of Accountancy for their transgressions.

   
   

   6/ See Shapero v. Kentucky Bar Assn., 486 U.S. 466, 108 S.Ct. 1916 100 L.Ed.2d 475 (1988), Peel v. Attorney Registration and Disciplinary Com'n., U.S. , 110 S.Ct. 2281, 2287(1990), Rule 4-7.2 Rules of The Florida Bar.

   
   

   7/ It is to be noted that Respondent could have simply been charged with practicing public accountancy through an

   unlicensed corporation in violation of Section 473.309, 473.3101 and 473.323(1)(a), F.S. Nothwithstanding this fact, since the ultimate issue in this cause must be whether or not Respondent is indeed practicing public accountancy by offering accounting services and using accounting skills while trading on the fact of her licensure as a CPA in without complying with the provisions of Section 473 and the rules promulgated thereto, and thus deceiving or misleading the public, it is appropriate to approach these alleged violations in the context of deceptive or misleading advertising.

   
   

   8/ The Hearing Officer apparently placed great weight upon the fact that the CPA certificate states that the recipient "has passed all examinations and has met all other requirements prescribed by law and by rule of this board for certification as an expert public accountant, and is therefore entitled to append the letters CPA after this registrant's name to evidence registration by this board as a Certified Public Accountant." See Proposed Finding of Fact No. 4, and Proposed Conclusion of Law No. 15. The certificate is, of course, only evidence of a license. It is difficult to conceive, when construing the abovementioned terms on the CPA's certificate, that an individual is entitled to advertise the fact of licensure if that individual was not in compliance with all provisions of Chapter 473, and Chapter 21A, F.A.C. To do otherwise, would be to permit an individual to use the title "Certified Public Accountant" when advertising and providing accounting skills and services to the public- but not to be subject to those statutes and rules, which were specifically enacted to secure the integrity and objectivity of CPAs when providing such services.

   
   

   9/ It is asserted by Respondent that since she is an attorney regulated by the Florida Bar, that the Board of

   Accountancy's assertion that she must comply with the provision of Chapter 473 and the rules promulgated thereto when she trades on the fact of her licensure as a CPA, and provides accounting services, constitutes the unlawful regulation of the practice of law. This position is erroneous. The mere fact that the Florida Bar permits attorneys to list other professional licenses as part of their credentials, see Rule 4-7.4, Rules of the Florida Bar, does not, and can not limit the responsibility of the dual license-holding attorney of complying with the requirements and rules of the other profession. It is obvious, for example, that any attorney who happens also to be a real estate broker, and who sells real estate in his law practice, can and will be subject to the Florida Real Estate Commission, for any violations of Chapter 475, and the rules promulgated thereto when he is selling real estate. This does not mean that the attorney will not also be subject to the rules of the Florida Bar, if, in the same real estate transaction, the attorney gave an erroneous title opinion.

   Dual license holding can and should subject the license holder to dual responsibility to the regulatory agencies

   having jurisdiction over the licensee. It is up to the licensee to resolve conflicts between the rules and statutes of the regulatory bodies, either by modifying the licensee's practice, so as to comport appropriately with all regulatory bodies, whose profession is being practiced by the licensee, or to cease leading the public to believe that the licensee complies with all regulatory requirements by trading on a license, when the license will not adhere to the strictures of that profession.

   
   

   cc: Counsel of Record

   
   

   STATE OF FLORIDA

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF ACCOUNTANCY

   
   

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   SILVIA S IBANEZ,

   
   

   Respondent.

   /

   
   

   DPR CASE NO. 90-13805 DOAH CASE NO. 91-4100

   
   

   
   

   ORDER ON

   RESPONDENT'S MOTION TO STAY PROCEEDING

   
   

   THIS CAUSE came on to be heard before the Florida Board of Accountancy at a regularly scheduled meeting on April 23, 1992, in Tampa, Florida, pursuant to Respondent's Motion to Stay Proceeding.

   
   

   The Board of Accountancy, upon the advice of counsel, DENIED the Motion to Stay Proceeding for the following reasons:

   
   

   1. The Board is required by Section 120.59, F.S., to enter its final order within 90 days after entry of the recommended order, and the April 23, 1992 meeting is the appro- priate meeting for the entry of the final order.

      
      

   2. There has been no showing by Respondent that her appellate remedies under Section 120.68, F.S., are not adequate.

WHEREFORE, Respondent's Notion to Stay Proceeding be and the same is hereby DENIED.

DONE and ORDERED this 23rd day of April , 1992.

BERYL H. DAVIS

Chairman

cc: Counsel of Record

Docket for Case No: 91-004100

Orders for Case No: 91-004100