STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 01-2104PL

)

SAMUEL FRANCIS MAY, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on September 24, 2001, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Samuel Francis May, Jr., pro se

20283 State Road 7, Suite 300 Boca Raton, Florida 33498

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed

against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On December 22, 2000, Petitioner issued an Administrative Complaint against Respondent Samuel Francis May, Jr., alleging that Respondent had violated a rule regulating his conduct as a certified public accountant, and Respondent timely requested an evidentiary hearing regarding the allegations contained in that Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Marc Einbinder and, by way of deposition, George L. Gober. Respondent testified on his own behalf and presented the testimony of John J. Messina, Larry V. Williams, David Campanini, David M. Raskin, Donna J. Kogler, and Andrew Farber. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibit numbered 1 were admitted in evidence.

Both parties submitted proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a certified public accountant in the State of Florida, having been issued license number 0018740.

2. Eileen and Robert Organ engaged Respondent's services to prepare income tax returns for Ma's Kitchen, Inc., and Respondent prepared several years of returns for them.

3. In a letter dated March 19, 1999, the Organs advised Respondent that his services were no longer required. Thereafter, Respondent gave his file on Ma's Kitchen to his attorney to collect Respondent's outstanding bill for services rendered to the Organs in the amount of $6,000.

4. On July 6, 1999, the Organs sent Respondent a letter stating that their new accountant needed the ledger books and files of Ma's Kitchen, that the Organs would pick up those records from Respondent, that Respondent's attorney had sent them letters, and that they would file a complaint against Respondent if they did not hear from Respondent. Respondent thereafter made unsuccessful attempts to contact the Organs.

5. The Organs did not contact Respondent after their July 6 letter to make arrangements to pick up their file. Further, the Organs' new accountant did not contact Respondent to obtain copies of Respondent's records although he contacted someone in Respondent's attorney's office who told him he could

   come there to look at the file. The new accountant never went to Respondent's attorney's office to look at the records for Ma's Kitchen, Inc. Respondent had told his attorney to give the Organs any documents they asked for if they contacted him as long as they paid any copying charges.

6. Respondent's attorney and the Organs' attorney wrote letters to each other, containing their interpretations of their clients' positions. Respondent's attorney took the position that all records provided by the Organs had been returned and that Respondent's work product was not needed by the Organ's new accountant but would be released when Respondent's bill was paid. The Organs' attorney demanded that Respondent return all records in his possession and suggested that Respondent owed money to his clients.

7. The Organs had provided to Respondent check stubs, bank statements, payroll tax returns, and other financial information to be used to prepare tax returns for them. Using those documents, Respondent had entered the data in his computer and had created a computer-generated general ledger. He had returned to the Organs all records they gave him long before they terminated his services, and their attorney's demand that he return records already returned was non-productive.

8. The demand of the Organs' attorney that Respondent return all corporate books and records was also non-productive.

   Respondent had never possessed Ma's Kitchens' articles of incorporation, corporate seal, by-laws, or minutes of meetings, those items commonly referred to as corporate books and records.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

10. The Administrative Complaint filed in this cause alleges that Respondent has violated Section 473.323(1)(h), Florida Statutes, by violating Rule 61H1-23.002(1), Florida Administrative Code. That Rule provides as follows:

    A licensee shall furnish to a client or former client within a reasonable time after request of the document the following if they are in the licensee's possession or control at the time of the request: Any accounting or other records belonging to the client which the licensee may have had occasion to remove from client's premises, or to receive for the client's account, including records prepared as part of the service to the client which would be needed to reconcile to the financial statements or tax return prepared and issued by the certified public accountant. If the tax return or financial statement has not been issued, the certified public accountant must only return records received from the client, but this shall not preclude the licensee from making copies of such documents when same form the basis of work done by the licensee.

    
    

11. Petitioner has failed to prove by clear and convincing evidence that Respondent violated Rule 61H1-23.002(1), Florida

    Administrative Code, as alleged in the Administrative Complaint. The evidence in this cause indicates that the dispute involves the general ledger produced by Respondent on his computer.

    Respondent testified that he returned to the Organs all financial documents given to him, and the Organs did not testify at the final hearing. Respondent testified that he prepared tax returns covering several years, which was the purpose of the Organs engaging his services, and that those tax returns were accepted and signed by the Organs. Respondent also testified that it was not his practice to give the client a copy of the general ledger prepared by him unless the client asked for it.

12. Rule 61H1-23.002(1), Florida Administrative Code, requires licensees to furnish a client any document requested by the client within a reasonable time after the request. Petitioner's evidence as to the two ingredients necessary to prove a violation of the Rule is neither clear nor convincing.

13. First, the Rule requires a request for a specific document. The Organs' attorney's demand that Respondent return

    broad categories of documents which had been returned or which Respondent never possessed falls short of meeting the specificity called for by the Rule's reference to "the document." The Organs' new accountant never contacted Respondent but rather contacted Respondent's attorney's office and was advised he could come look at the file. However, he

    never went there and never demanded any specific document be provided. The only request by the Organs was contained in their July 6, 1999, letter saying they wanted "ledger books and files" and would pick them up. This demand fails to identify a specific document, and they never went to Respondent's office to obtain same as they said they would do.

14. Second, the Rule envisions that the documents required to be provided are those items obtained from the client (items Respondent undisputedly returned to the Organs) and documents prepared as part of the service to the client which would be needed to reconcile the tax return prepared. The two experts who testified in this proceeding, Respondent and Petitioner's expert, failed to agree or offer convincing evidence as to the specific documents needed to reconcile the tax returns not already provided by Respondent to the Organs. Further, the record indicates that the Organs' new accountant was able to complete his assignment without ever being provided additional documents by Respondent. Accordingly, the evidence is not convincing that any document needed was denied to the Organs.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2001.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Samuel Francis May, Jr.

20283 State Road 7, Suite 300 Boca Raton, Florida 33498

Martha Willis, Division Director Division of Public Accounting Department of Business and

Professional Regulation

240 Northwest 76 Drive, Suite A Gainesville, Florida 32607

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 01-002104PL

Orders for Case No: 01-002104PL