STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARNEST ANTHONY VARVOUTIS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1094

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

ACCOUNTANCY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 7, 1992, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Allen M. Levine, Esquire

Post Office Box 9057

Fort Lauderdale, Florida 33310-9057

For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General Department of Legal Affairs 2020 Capitol Circle S.E.

308 Alexander Building Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a certified public accountant (C.P.A.) should be denied on the grounds set forth in Respondent's order of December 5, 1991, as clarified by the Joint Prehearing Stipulation entered into by the parties on July 1, 1992?

PRELIMINARY STATEMENT

By order issued December 5, 1991, Respondent gave notice of its intention to deny Petitioner's application for licensure as a C.P.A. "based upon the provisions of [Sections] 473.323(3)(a) and (1)(d); 473.322(1)(b); 473.308(2) and 473.306(4)," Florida Statutes. Respondent noted in its order that "[t]he citation relating to the presumptive lack of good moral character [was] based on [Petitioner's] plea of nolo contendre to Unemployment Compensation Fraud." Petitioner subsequently requested a formal administrative hearing on the matter. On February 21, 1992, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal

administrative hearing Petitioner had requested. The hearing was originally scheduled for May 19, 1992, but was continued until July 7, 1992, at Petitioner's request.

At the final hearing held in this matter Petitioner presented, in addition to his own testimony, the testimony of five witnesses. These witnesses were Mark Gillen, Javier Osuna, Martin Jaffe, Charles White and Darrell Rivero.

Petitioner also offered, and the Hearing Officer received, six exhibits into evidence. The only evidence Respondent offered were three exhibits, all of which were received by the Hearing Officer.

At the close of the evidentiary portion of the hearing on July 7, 1992, the Hearing Officer advised the parties on the record of their opportunity to file post-hearing submittals within 20 days of the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on August 7, 1992. Petitioner and Respondent filed proposed recommended orders on August 28, 1992, and August 21, 1992, respectively. Petitioner's proposed recommended order was accompanied by an unopposed motion seeking a one-day extension of the deadline for filing post-hearing submittals. Good cause having been shown, Petitioner's motion for extension of time is hereby GRANTED.

Petitioner's and Respondent's proposed recommended orders contain proposed findings of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. In October of 1985, after graduating from college, Petitioner went to work as a staff accountant with the public accounting firm of DeLoitte, Haskins and Sells (DH&S).

   
   

2. He remained with DH&S until his position was eliminated. His last day of work was February 19, 1988.

   
   

3. That same day, Petitioner went to the Florida Department of Labor and Employment Security, Division of Unemployment Compensation's (Division's) office (unemployment office) on Oakland Park Boulevard and U.S. 1 in Fort Lauderdale to inquire as to whether he was eligible for unemployment compensation. 1/ He brought with him a check (termination check) he had received from DH&S in an amount equal to approximately eight to ten weeks pay. The termination check represented not only severance pay, but also compensation for overtime work and unused sick leave and vacation time paid to Petitioner in one lump sum. 2/

   
   

4. After waiting on line, Petitioner spoke with a Division employee about his situation. He showed the termination check to the employee and explained what it represented. The employee then advised Petitioner that he would not be eligible for unemployment compensation until after the period of time for which he had been paid by DH&S had expired. Having been so advised, Petitioner left the unemployment office without submitting a claim.

   
   

5. In the weeks that followed, friends and acquaintances of Petitioner, who believed that he had been given erroneous information regarding his eligibility for unemployment benefits, suggested to him that he further pursue the matter.

6. Not having been successful in finding permanent, full-time employment, Petitioner ultimately followed their suggestion. On March 23, 1988, he returned to the unemployment office, with a copy of the termination check he had received from DH&S, to find out if he had indeed been given erroneous information by the Division employee with whom he had spoken during his initial visit the month before.

   
   

7. He discussed his situation with another Division employee who worked in the office. This employee told Petitioner that he was eligible for unemployment benefits and that he would be able to receive "retroactive benefits" for the period following his first visit to the office. She advised Petitioner to fill out an unemployment compensation claim form, while she completed the paperwork that was necessary for him to obtain the "retroactive benefits" due him.

   
   

8. Before leaving the office, Petitioner filled out a claim form and submitted it for filing.

   
   

9. On the form, Petitioner checked the box indicating that, upon the termination of his employment with DH&S, he had not "received wages in lieu of notice."

   
   

10. Nowhere on the form did Petitioner indicate that he was seeking "retroactive benefits;" however, he did not have to do so in order to complete the form inasmuch as no part of the form addressed the subject of "retroactive benefits."

    
    

11. Petitioner received his first unemployment compensation check in late April of 1988.

    
    

12. Shortly thereafter, on May 2, 1988, he began working for Safeguard Services, Inc. (Safeguard).

    
    

13. Petitioner continued to receive unemployment compensation checks until August of 1988, notwithstanding that he was fully employed by Safeguard throughout the period.

    
    

14. To receive these payments, Petitioner had to fill out and submit weekly claim certifications. In these certifications, he failed to disclose his employment with Safeguard and falsely certified that he had been "unemployed or partially unemployed" during the time periods covered by the certifications. 3/ He gave such information regarding his employment status knowing it to be false in order to continue to receive unemployment benefits.

    
    

15. While still employed by Safeguard, Petitioner was contacted by a "headhunter" from Source Finance, an employment recruiter. The possibility of Petitioner using the services of Source Finance to assist him in finding a new job was discussed. Source Finance thereafter prepared a resume for Petitioner without his authorization, approval or knowledge. The resume indicated that Petitioner was a C.P.A. in the State of Florida. 4/ Petitioner was not then, nor has he ever been, licensed to practice public accounting in this state.

    
    

16. Petitioner left the employ of Safeguard in October of 1988. Following his termination he went to the unemployment office to file a claim for unemployment compensation. Under "USUAL OCCUPATION" on the unemployment compensation claim form, Petitioner put down "CPA." In fact, Petitioner did not practice public accounting (although he had worked for a public accounting

    firm), nor did he regularly hold himself out as a C.P.A. Furthermore, he made clear to the Division employee to whom he handed his completed claim form that he was not yet a C.P.A., although he was hoping to become one and toward that end was leaving town the next day to take the C.P.A. examination. While Petitioner used poor judgment in referring to himself as a C.P.A. on the form, in so doing he did not intend to defraud the Division or to lead potential clients to believe that he was eligible to practice public accounting in this state.

    
    

17. In or around December of 1988, the Division notified Petitioner in writing that it was seeking to recoup from him $2,600.00 in unemployment compensation benefits that he had improperly received while he had been employed full-time by Safeguard. In a letter written the latter part of January of 1989, Petitioner responded by asking the Division for clarification. Shortly thereafter the Division sent Petitioner a second letter demanding payment. Petitioner responded by writing another letter to the Division indicating that he would not make payment until he was given what he considered to be an adequate clarification of the Division's position.

    
    

18. Subsequently, Petitioner was charged in Broward County Circuit Court (Case No. 89-6975 CF) with unemployment compensation fraud, in violation of Section 443.071(1), Florida Statutes. He retained Martin Jaffe, Esquire, to serve as his defense counsel and agreed to a fee arrangement that was described as follows in a letter dated June 28, 1989, sent to him by Jaffe:

    
    

    1. In the event this cause is resolved prior to the start of pre-trial depositions, the total fee shall be $10,000.00. The sum of

       $5,000.00 has been received on this date. The remaining balance of $5,000.00 shall be paid on or before September 1, 1989.

       
       

    2. In the event that it is necessary to take pre-trial depositions, an additional fee of

       $5,000.00 shall be due and owing.

       
       

    3. In the event that this matter shall proceed to trial, there shall be an additional fee of $2,000.00 per day of trial.

       
       

    4. It is agreed that those fees detailed in paragraphs B and C shall be paid out of any "reward monies" that you receive from the Internal Revenue Service. 5/ You hereby agree to execute the necessary documents to assign said payments to me. It is further

       understood, of course, that in the event that you do not receive any monies or insufficient monies from the Internal Revenue Service, you shall still be responsible for all payments delineated herein.

       
       

19. The State Attorney offered to enter into a plea bargain agreement with Petitioner. Petitioner initially rejected the offer.

    
    

20. As time passed, it became apparent that Petitioner would not be able to pay for Jaffe's services. Jaffe therefore suggested that Petitioner

    reconsider his decision to reject the offer the State Attorney had made, which Jaffe believed, based upon the limited information that he had regarding the case, 6/ to be "very favorable." Petitioner did reconsider and he agreed with Jaffe that it was in his, Petitioner's, best interest to accept the offer.

    
    

21. On October 23, 1989, in accordance with the terms of the plea bargain agreement, Petitioner entered a plea of nolo contendre to the felony charge of unemployment compensation fraud that had been lodged against him. Adjudication of guilt was withheld and Petitioner was placed on probation for 18 months and ordered to repay $2,600.00 to the Division within the first year of his probation.

    
    

22. Petitioner timely repaid the $2,600.00 and in all other respects successfully completed the terms and conditions of his probation.

    
    

    CONCLUSIONS OF LAW

    
    

23. Petitioner is seeking to be licensed by Respondent as a certified public accountant

    
    

24. An applicant for such a license must, among other things, be "of good moral character." Section 473.306(2)(a), Fla. Stat.

    
    

25. "Good moral character," as that term is used in Chapter 473, Part I, Florida Statutes, "means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation." Section 473.306(4)(a), Fla. Stat.

    
    

26. Respondent may refuse to grant a license on the ground of lack of "good moral character" if it "finds a reasonable relationship between the lack of good moral character of the applicant and the professional responsibilities of a certified public accountant" and if its finding "of lack of good moral character is supported by competent substantial evidence." Section 473.306(4)(b), Fla. Stat.

    
    

27. Respondent is also authorized to deny licensure where the applicant has been "convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of public accounting or the ability to practice public accounting." Section 473.323(1)(d), Fla. Stat.

    
    

28. An additional ground upon which Respondent "may refuse to certify any applicant" is the applicant's violation of Section 473.322, Florida Statutes, subsection (1)(b) of which provides as follows:

    
    

    No person shall knowingly:

    
    

    Assume or use the titles or designations "certified public accountant" or "public accountant" or the abbreviation "C.P.A." or any other title, designation, words, letters, abbreviations, sign, card, or device tending to indicate that such person holds an active license under this act.

    
    

    Section 473.308(2), Fla. Stat. ("The board may refuse to certify any applicant or firm that has violated any of the provisions of 473.322").

29. In the instant case, Respondent has cited the charge of unemployment compensation fraud to which Petitioner pled nolo contendre and the use of the abbreviation "C.P.A." on the resume prepared by Source Finance and the completed unemployment compensation claim form Petitioner filed following the termination of his employment with Safeguard as the reasons for its proposed denial of Petitioner's application for licensure.

    
    

30. Turning first to Petitioner's alleged improper use of the abbreviation "C.P.A." in violation of Section 473.322(1)(b), Florida Statutes, it appears that, with respect to the resume, Petitioner was not responsible for its preparation or dissemination and that, with respect to the claim form, Petitioner's use of the abbreviation "C.P.A." to describe his "usual occupation," while inappropriate, was not in any way intended to defraud the Division or to lead potential clients to believe that he was eligible to practice public accounting in this state. Accordingly, Respondent's allegation that Petitioner engaged in conduct in violation of Section 473.322(1)(b), Florida Statutes, justifying the denial of his application for licensure is without merit.

    
    

31. Neither is the Hearing Officer persuaded by the contention that Petitioner committed a violation of Section 473.323(1)(d), Florida Statutes, warranting the denial of his application for licensure. It is true that unemployment compensation fraud, in violation of Section 443.071(1), Florida Statutes, 7/ is a crime that "directly relates to . . . the ability to practice public accounting," within the meaning of Section 473.323(1)(d), Florida Statutes. See Ashe v. Department of Professional Regulation, Board of Accountancy, 467 So.2d 814 (Fla. 5th DCA 1985). Nonetheless, while Petitioner was charged with unemployment compensation fraud in Broward County Circuit Court Case No. 89-6975 CF, he was never "convicted or found guilty" of the charge inasmuch as he entered a plea of nolo contendre before trial and adjudication of guilt was withheld. Accordingly, his application for licensure cannot be denied on the ground that he engaged in conduct proscribed by Section 473.323(1)(d), Florida Statutes, as alleged by Respondent. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987). 8/

    
    

32. That Petitioner was not convicted nor found guilty of the unemployment compensation fraud with which he had been charged in Broward County Circuit Court Case No. 89-6975 CF, however, does not insulate him from having his application denied pursuant to Section 473.306(4), Florida Statutes, on the ground that, in view of his commission (as opposed to his conviction) of this offense, he lacks the "good moral character" required of an applicant seeking licensure as a certified public accountant. Cf. Sandlin v. Criminal Justice Standards and Training Commission, 531 So.2d 1344 (Fla. 1988)(pardoned felon may not be denied certification as a law enforcement officer based upon prior felony conviction, but licensing agency should examine and rely upon "the events underlying the pardoned conviction" in ascertaining whether applicant satisfies requirement that he be of good moral character).

    
    

33. The record in the instant case affirmatively establishes that Petitioner did indeed engage in the criminal activity with which he had been charged 9/ and that his plea of nolo contendre to the charge was not merely a plea of financial convenience as he has claimed in this proceeding. 10/

    
    

34. Given the serious nature of such criminal activity as it relates to the professional responsibilities of a certified public accountant and the relatively short period of time that has passed since he engaged in such activity, it is concluded that Petitioner does not presently possess the "good

moral character" that an applicant for licensure as a certified public accountant must have in order to be licensed. Accordingly, Respondent should deny Petitioner's application for licensure pursuant to Section 473.306(4), Florida Statutes, but permit him to reapply (though no sooner than one year following the date of this Recommended Order) and give him the opportunity to show in support of his application that, in light of his subsequent good conduct and/or other pertinent circumstances, his having committed unemployment compensation fraud in 1988 no longer constitutes a basis upon which to conclude that he is not of "good moral character," within the meaning of Section 473.306(4), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Accountancy enter a final order denying Petitioner's application for licensure based upon his lack of "good moral character," within the meaning of Section 473.306(4), Florida Statutes, without prejudice to Petitioner reapplying for licensure no sooner than one year following the date of this Recommended Order and showing that, in light of his subsequent good conduct and/or other pertinent circumstances, his having committed unemployment compensation fraud in 1988 no longer constitutes a basis upon which to conclude that he lacks the "good moral character" required of applicants for licensure.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1992.

STUART M. LERNER

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 14th day of September, 1992.

ENDNOTES

1/ Petitioner had made no effort to find out this information from anyone at DH&S before going to the unemployment office.

2/ The record does not establish, of this total amount, how much was for severance pay, how much was for overtime work, how much was for unused sick leave or how much was for unused vacation time.

3/ He made no notations on any of these forms indicating that he was submitting them in order to obtain the "retroactive benefits" he had been told he was entitled to receive.

4/ There is insufficient evidence upon which to base a finding that Petitioner told the "headhunter" during their discussion that he was a C.P.A. or otherwise knowingly provided the "headhunter" with false information concerning his credentials.

5/ Petitioner was assisting the Internal Revenue Service in its investigation of Safeguard, his former employer.

6/ Because he had not been fully paid, Jaffe had not engaged in extensive discovery to assess the relative strengths and weaknesses of his client's case.

7/ Section 443.071(1), Florida Statutes, provides as follows:

Whoever makes a false statement or representation, knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any benefits or other payments under this chapter or under an employment security law of any other state, of the Federal Government, or of a foreign government, either for himself or for any other person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, 775.083, or s. 775.084; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.

8/ Like the statutory provision (Section 493.319(1)(j), Florida Statutes(1983)) at issue in Kinney and unlike the one (Section 458.331(1)(c), Florida Statutes (1983)) in question in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), a case relied upon by Respondent, Section 473.323(1)(d), Florida Statutes, does not provide that "[a]ny plea of nolo contendre shall be considered a conviction for purposes of this paragraph."

9/ The competent substantial evidence supporting a finding of Petitioner's guilt includes, but is not limited to, his pleading nolo contendre to the charge. See The Florida Bar v. Lancaster, 448 So.2d 1019, 1021 (Fla.

1984)("[a]n attorney's pleading nolo contendre to a misdemeanor is relevant to his fitness to practice law;" "the important factor is not whether there has been an actual adjudication of guilt, but whether the attorney has been given a chance to explain the circumstances surrounding his plea of nolo contendre and otherwise contest the inference that he engaged in illegal conduct"); Kinney v. Department of State, 501 So.2d 129, 132 (Fla. 5th DCA 1987)("a plea of nolo contendre may be considered as evidence of guilt in an administrative proceeding, [although] it is not conclusive" proof of guilt; "due process requires that the accused be given full opportunity to explain the circumstances surrounding his plea").

10/ Petitioner's testimony that he did not mean to misrepresent his employment status on the weekly claim certifications covering the period of time that he was fully employed by Safeguard has been rejected as unworthy of belief for the reasons expressed in Respondent's proposed recommended order.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-1094

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1. First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Remaining sentences: Rejected because they are not supported by competent substantial evidence.

   
   

2. Accepted and incorporated in substance.

   
   

3. To the extent that this proposed finding asserts that the unemployment office was on Broward, not Oakland Park, Boulevard, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

4. To the extent that this proposed finding asserts that the unemployment office was on Broward, not Oakland Park, Boulevard, it has been rejected because it is not supported by competent substantial evidence. To the extent that it indicates what Petitioner testified to at hearing, it has been rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony. Otherwise, it has been accepted and incorporated in substance.

   
   

5. Accepted and incorporated in substance.

   
   

6. Last sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony; Remaining sentences: Accepted and incorporated in substance.

   
   

7. Rejected because it is based upon testimony deemed unworthy of belief.

   
   

8. Last sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony; Remaining sentences: Accepted and incorporated in substance.

   
   

9. First, second, ninth and eleventh sentences: Accepted and incorporated in substance; Third through eighth and tenth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Twelfth and thirteenth sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon such testimony.

   
   

10. Rejected because, even if it were true, it would not have any impact upon the ultimate outcome of the instant case.

    
    

11. Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.

    
    

12. Accepted and incorporated in substance.

    
    

13. First, fourth and fifth sentences: Accepted and incorporated in substance; Second and third sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon such testimony.

14-15. Accepted and incorporated in substance.

1. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: To the extent that this proposed finding suggests that Petitioner was contacted by the "headhunter" from Source Finance after the termination of his employment with Safeguard, it has been rejected because it is not supported by competent substantial evidence. Otherwise it has been accepted and incorporated in

   substance; Third sentence: Accepted and incorporated in substance; Fourth sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony.

   
   

2. First and third sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon such testimony; Second and fourth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

18-20. Accepted and incorporated in substance.

Respondent's Proposed Findings of Fact

1. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by competent substantial evidence.

   
   

2. To the extent that this proposed finding suggests that the termination check Petitioner received did not, at least in part, represent severance pay, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

3. To the extent that this proposed finding asserts that the unemployment office was on Broward, not Oakland Park, Boulevard, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

4. To the extent that this proposed finding asserts that the unemployment office was on Broward, not Oakland Park, Boulevard, it has been rejected because it is not supported by competent substantial evidence. To the extent that it indicates what Petitioner testified to at hearing, it has been rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony. Otherwise, it has been accepted and incorporated in substance.

   
   

5. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding suggests that the termination check Petitioner received did not, at least in part, represent severance pay, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

6. First sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony; Second sentence: Rejected because, even if it were true, it would not have any impact on the ultimate outcome of the instant case.

7-8. Accepted and incorporated in substance.

1. First sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

   
   

2. Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony.

   
   

3. First sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance; Third and fourth sentences:

   To the extent that these proposed findings state that Petitioner "signed weekly verification of unemployment forms which stated that his employment with Safeguard, Inc., began on July 20, 1988, and secondly, on August 8, 1988," they have been rejected because they are not supported by competent substantial evidence. To the extent that they state that "his actual employment date with Safeguard was May 1988," they have been accepted and incorporated in substance.

   
   

4. To the extent that this proposed finding states that "[a]t no time, on any of the weekly unemployment compensation forms, did [Petitioner] make any notation that he was not employed, when in fact he was employed," it has been rejected as not supported by competent substantial evidence. To the extent that it suggests that Petitioner did not indicate on these forms that they were for "retroactive unemployment compensation," it has been accepted and incorporated in substance.

   
   

5. First and fourth sentences: Accepted and incorporated in substance; Second and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

6. To the extent that this proposed finding states that Petitioner was not a C.P.A., it has been accepted and incorporated in substance. Otherwise, it has been rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony.

   
   

7. Accepted and incorporated in substance.

   
   

8. To the extent that this proposed finding states that "the Division sought to file criminal charges against [Petitioner] for unemployment compensation fraud," it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   
   

9. Second sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony; Remaining sentences: Accepted and incorporated in substance.

18-20. Accepted and incorporated in substance.

1. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: To the extent that this proposed finding suggests that Petitioner was contacted by the "headhunter" from Source Finance after the termination of his employment with Safeguard, it has been rejected because it is not supported by competent substantial evidence. Otherwise it has been accepted and incorporated in substance; Third sentence: Accepted and incorporated in substance; Fourth sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony.

   
   

2. First and third sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon such testimony; Second and fourth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

3. Accepted and incorporated in substance.

24-25. Accepted and incorporated in substance.

COPIES FURNISHED:

Allen M. Levine, Esquire Post Office Box 9057

Fort Lauderdale, Florida 33310-9057

John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs 2020 Capital Circle, S.E.

308 Alexander Building Tallahassee, Florida 32399-1050

Martha Willis, Executive Director Board of Accountancy

4001 Northwest 43rd Street Suite 16

Gainesville, Florida 32606

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT 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.

Docket for Case No: 92-001094

Orders for Case No: 92-001094