STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) Case No. 98-1086

)

NANCY CAROL BARRETT, )

)

Respondent. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) Case No. 98-1087

)

NANCY CAROL BARRETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled cases on July 24, 1998, by viedoconference between Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Board of Accountancy 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: Nancy Carol Barrett

c/o 4590 Sailbreeze Court Orlando, Florida 32810

\

STATEMENT OF THE ISSUES

The Administrative Complaint in Case No. 98-1086 (DBPR Case Nos. 96-09090 and 96-11123) alleges that Respondent violated Chapter 473, Florida Statutes, and rules governing the practice of accountancy when she failed to comply with the terms of a prior disciplinary order and when she failed to prepare a client's 1995 tax return and failed to respond to his attempts to contact her.

The issue in this case is whether those violations occurred and, if so, what discipline should be imposed.

The separate complaint in Case No. 98-1087 (DBPR Case Nos.

97-10976, 97-10977, 97-10978 and 97-10979) was voluntarily dismissed by Petitioner immediately prior to the evidentiary hearing. (See Motion to Sever and Dismiss filed July 20, 1998.)

An ancillary issue in this proceeding is Petitioner's Motion for Sanctions for Respondent's failure to attend a scheduled deposition.

PRELIMINARY STATEMENT

The two complaints referenced above were referred to the Division of Administrative Hearings and were consolidated at the request of Petitioner.

At the hearing Petitioner presented the testimony of Adam Rafalski, the complainant; and Marlyn Felsing, C.P.A., consultant

and expert witness. Petitioner's Exhibits A-E (licensing files, investigative reports and responses to discovery) were received into evidence without objection.

Respondent testified in her own behalf and presented no other witnesses or evidence.

The transcript was filed on August 6, 1998; Petitioner's Proposed Recommended Order was filed on August 11, 1998.

FINDINGS OF FACT

1. Respondent, Nancy Carol Barrett, was originally licensed as a Certified Public Accountant (CPA) in March 1988, with license no. AC 0019406. She remained licensed during all times relevant to the complaints in this case.

2. Ms. Barrett's address of record is 132 Sandlewood Trail, Winter Park, Florida 32789, but her last known mailing address is c/o 4590 Sailbreeze Court, Orlando, Florida 32810.

3. In 1993 and 1994, Ms. Barrett was the subject of an investigation and administrative complaint in DBPR Case No. 92- 05018. The complaint involved accounting services provided by Ms. Barrett for an organization.

4. The result of the investigation and complaint was a stipulation agreement and probation with a condition that Ms. Barrett would submit to CPA consultant, Marlyn Felsing, samples of current financial statements she prepared.

5. Mr. Felsing spoke to Ms. Barrett in January 1996, when she agreed to provide the financial statements. However, Ms.

   Barrett never sent the statements, and in spite of several attempts Mr. Felsing was never able to contact her again and was never able to complete his review.

6. Adam Rafalski is a medical dosimetrist working at the cancer center at Florida Hospital. Ms. Barrett prepared his tax filings for several years prior to 1996. Because he has investments that required the collection of records he would deliver those records to Ms. Barrett's office as they came in.

7. In 1996, as the filing deadline for 1995 taxes approached, Mr. Rafalski had provided all his records to Ms. Barrett but he had not heard from her. He tried to call but kept getting her answering machine; he went by her office several times and always found the door locked.

8. Ms. Barrett never filed Mr. Rafalski's tax forms, nor did he receive the forms from her to sign. Because she had all of his original records, Mr. Rafalski had to reconstruct his documents and retain another CPA. Because it took so long to acquire the duplicate documents, Mr. Rafalski's taxes were filed late and he had to pay interest. He did not have to pay a penalty because he explained the circumstances of his experience with Ms. Barrett.

9. During the time that Mr. Felsing and Mr. Rafalski were trying to contact Ms. Barrett she had closed her office. Although she felt she tried to do a good job for her clients she got to the point where she could not cope with the stress of

   practicing her profession. She admits that she never provided the requested samples of her work to Mr. Felsing and she never followed up with Mr. Rafalski to see whether he received the forms she says she dropped off at the hospital where he works.

10. Ms. Barrett is still not practicing as a CPA and has no intention of renewing her certificate, already delinquent, because she cannot handle the pressure.

11. Sometime after she received the Notice of Hearing Ms. Barrett stopped picking up her mail, which mail apparently included the Notice of Deposition.

12. Ms. Barrett's testimony was an emotional admission of her neglect. She also apologized for the problems she caused.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 455.225, Florida Statutes.

14. In license discipline cases such as this, the agency must prove the allegations of its complaint with evidence that is "clear and convincing." Department of Banking and Finance v. Osborne Stern and Company, 690 So. 2d 932 (Fla. 1996).

15. In this case Ms. Barrett has admitted her violations and argues only that she did prepare Mr. Felsing's tax forms. She admits she abruptly closed her office and shut down her practice, making herself inacessible to her former client who reasonably sought his records.

16. Ms. Barrett's admitted failure regarding Mr. Rafalski's 1995 tax return constitutes a violation of Section 473.323(1)(g), Florida Statutes (negligence and misconduct), for which she is charged.

17. Ms. Barrett's failure to comply with a prior disciplinary order to have her work reviewed by Mr. Felsing constitutes a violation of Sections 455.227(1)(q) and 473.323(1)(a), Florida Statutes, as charged.

18. Because of Ms. Barrett's willingness to allow her license to become null and void and her voluntary withdrawal from the practice of accountancy, and because of her mental state, counsel for Petitioner reasonably recommends a penalty that is more rehabilitative than penal in nature.

19. Because her failure to attend the scheduled deposition was not intentional but was the result of Ms. Barrett's stress and instability, Petitioner's Motion for Sanctions is DENIED. Although her failure to attend was not truly justified, being the consequence of her failure to pick up her mail, the circumstances still suggest that an award of expenses would be unfair. See Florida Rules of Civil Procedure, Rule 1.380(d).

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

that the Board of Accountancy dismiss the complaint in Case No. 98-1087; and enter a final order finding that Ms. Barrett committed the violations described above and stating that her license has become null and void. If she ever reapplies for licensure, approval by the Board should be conditioned on a reasonable determination of mental fitness and on a two-year period of probation, which should include a careful review of her practice by a CPA consultant to the Board, at Ms. Barrett's expense.

DONE AND ENTERED this 16th day of September, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1998.

COPIES FURNISHED:

Martha Willis Executive Director Board of Accountancy, Division

of Certified Public Accountants Department of Business and

Professional Regulation

Suite 16

4001 Northwest 43rd Street Gainesville, Florida 32606

Lynda L. Goodgame, General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe street

Tallahassee, Florida 32399-0792

Nancy Carol Barrett

c/o 4590 Sailbreeze Court Orlando, Florida 32810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-001086

Orders for Case No: 98-001086