STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF CERTIFIED PUBLIC ) ACCOUNTING, )

)

Petitioner, )

)

vs. ) Case No. 01-2859PL

)

EDWIN TUNICK, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 15, 2001, in Fort Lauderdale, Florida, before Administrative Law Judge Florence Snyder Rivas, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent’s felony convictions directly relate to the practice of public accounting and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 2, 2000, following a jury trial, Respondent was convicted of conspiracy to commit health care fraud, mail fraud, and making false statements in connection with a scheme to defraud. Respondent was thereafter sentenced to a year and a day in prison to be followed by three years of supervised probation. Respondent is currently free on bail pending an appeal.

By Administrative Complaint dated July 19, 2001, the Florida Board of Accountancy alleged that Respondent violated Section 473.323(1)(d), Florida Statutes. Respondent timely asserted his right to a formal administrative hearing.

Respondent failed to attend the hearing, which proceeded in his absence. Subsequent to the hearing, Respondent, through his qualified representative, contacted the undersigned to explain why he had failed to attend, and was offered an opportunity to re-open the record to present any evidence or testimony which he deemed necessary to the disposition of this case, and was also advised of the deadline for filing proposed recommended orders.

Following a telephone hearing held on December 7, 2001, Respondent declined the offer to re-open the record.

At the formal hearing, the Petitioner presented the expert witness testimony of Marc Einbinder and offered eight exhibits into evidence.

Petitioner timely submitted a Proposed Recommended Order which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a licensed certified public accountant, having been issued license number AC-0001638 by the Florida Board of Accountancy.

2. Respondent was convicted on felony charges of conspiracy to commit health care fraud, mail fraud, and making false statements in United States v. Tunick in the Southern District of New York on December 26, 2000. Respondent was thereafter sentenced to a year and a day in prison to be followed by three years of supervised probation. He is currently free on bail pending an appeal.

3. Respondent’s convictions violate the level of professional conduct expected of a person licensed to practice public accounting in Florida and are within the scope of crimes that directly relate to the ability to practice public accounting.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes.

5. Petitioner has the burden in this disciplinary proceeding to prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d

   112 (Fla. 1st DCA 1989). That burden has been met.

   
   

6. The Florida Board of Accountancy is empowered to impose discipline, including fines and license revocation, on a licensed certified public accountant who is found guilty of any of the grounds enumerated in Sections 455.225 and 473.323, Florida Statutes.

7. Respondent violated Section 473.323(1)(d), Florida Statutes, by being convicted of crimes which directly relate to the practice of public accounting or the ability to practice public accounting. Indeed, the serious criminal charges on which Respondent stands convicted involve deceit and dishonesty for personal gain, a matter which goes to the very heart of the practice of a profession which involves relationships of utmost trust between the professional in

   whose care the financial well-being of his clients is entrusted.

8. The crimes for which Respondent has been convicted warrant imposition of the ultimate professional penalty. See Ashe v. Dept. of Professional Regulation, Board of Accountancy, 467 So. 2d 814 (Fla. 5th DCA 1985)(upholding revocation of a license to practice public accounting under Section 473.323(1)(d), Florida Statutes, for felony conviction for fraud by wire and intrastate transportation of false and forged securities); Rush v. Dept. of Professional Regulation, Board of Podiatry, 448 So. 2d 26 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order in this case finding Respondent guilty of the violations charged in the Administrative Complaint; permanently revoking the Respondent’s license to practice public accounting in Florida; and assessing Respondent an administrative fine in the amount of $5,000.

DONE AND ENTERED this 15th day of January, 2002, in Tallahassee, Leon County, Florida.

___________________________________ FLORENCE SNYDER RIVAS

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 15th day of January, 2002.

COPIES FURNISHED:

Walter B. Lebowitz, Esquire

12555 Biscayne Boulevard, No. 924

Miami, Florida 33308

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Martha Willis, Director

Division of Certified 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: 01-002859PL

Orders for Case No: 01-002859PL