STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1533

)

NAPOLEON BRYANT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on January 10, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner: James S. Quincey, Esquire

226 South Main Street Gainesville, Florida 32602

For Respondent: Thomas B. Calhoun, Esquire

3636 Shamrock Way

Tallahassee, Florida 32308

By administrative complaint dated August 25, 1978, petitioner alleged that respondent "failed to reestablish his professional knowledge and competency to practice public accounting. . .knowingly misrepresented facts to the Board. .

.including. . .filing false reports with the Board concerning. . .continuing professional education courses permitted his name to be associated with [certain] audited financial statements. . .in such a manner as to imply that he was acting as an independent certified public accountant or public accountant, without having complied with the applicable generally accepted auditing standards and without presenting the financial statements in conformity with generally accepted accounting principles when said statements contained departures from such principles which had a material effect on such statements taken as a whole;" and that respondent "[w]ith respect to the [same] financial statements,. . .undertook engagements in the practice of public accounting which he could not reasonably expect to complete with professional competence," all in violation of Sections 473.04, 473.111(4) through (9), 473.251(1)(c)(f) and (g), Florida Statutes (1977), and Rules 21A-3.02, 4.01, 4.02, 4.03, 7.01, 15.01 and 15.03, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent's name was one of about three hundred on a list of public accountants certified in Florida for whom, at the close of the initial period following institution of the requirement, petitioner had no record of the taking

   of continuing professional education courses or of the passing of a written professional examination. As a result, petitioner mailed respondent a form letter advising him of the situation, in February of 1977. Receiving no reply, petitioner mailed a second letter to respondent on April 28, 1977, stating that he "ha[d] failed to comply with F.S. 473.111(4) and Rule 21A-15" and that his suspension had been recommended to petitioner for that reason.

   
   

2. On May 11, 1977, respondent visited petitioner's offices in Gainesville and spoke to George Thomas McCall, at the time petitioner's coordinator for continuing professional education. Mr. McCall gave respondent three reporting forms on which respondent proceeded, without reference to any notes, to list various titles in the column styled "Name of Course or Program," filling in corresponding blanks in columns for the dates of the courses, for their sponsors and for "Credit Hours Claimed." Petitioner's exhibit No. 1.

   
   

3. Douglas H. Thompson, Jr., petitioner's executive director, asked Jean

   P. Finegold, Mr. McCall's successor, to attempt to verify that respondent had taken the continuing professional education courses he had listed. Ms. Finegold wrote respondent requesting documentation. Petitioner sent this letter by certified mail, but it was returned unclaimed. Ms. Finegold also wrote each of the four institutions listed by respondent as sponsors of continuing professional education courses that he had taken.

   
   

4. The United States Department of Labor, listed by respondent as the sponsor of 48 hours of course work he had taken in the auditing and accounting category, never replied to Ms. Finegold's inquiry.

   
   

5. Because respondent had indicated, on the reporting form for 1974, that he took courses named "Estate Planning" and "Banking" sponsored by the Florida Institute of Certified Public Accountants (FICPA), Ms. Finegold wrote FICPA asking, inter alia, for verification of respondent's attendance at those courses. Respondent listed no other courses sponsored by FICPA on any of the reporting forms. Under the supervision of FICPA's assistant Director, John Scharbaugh, Vicki Ware researched the FICPA's records without finding the course names "Banking" or "Estate Planning." Later, after an extended telephone conversation between respondent and Mr. Scharbaugh, the FICPA verified that respondent had attended "Income Taxation of Estates and Trusts" on January 10, 1974; Basic Concepts in Estate Planning" on January 11, 1974; "Workshop on Fiduciary Income Tax Returns" on December 14, 1973; "Seminar on Bank Audits, Accounting, Taxes and Regulations" (Seminar) on November 16, 1973; and another course on May 17 and 18, 1973. The three more recent courses "each qualify for eight hours of other CPE credit," composite exhibit No. 8, deposition of Jean P. Finegold, as did the seminar. The other course "Management Advisory Services Conference" is the course respondent referred to on his 1974 reporting form as "Computer Advisory," mistakenly indicating sponsorship by Florida State University rather than by the FICPA.

   
   

6. In response to Ms. Finegold's inquiry, the American Institute of Certified Public Accountants (AICPA) indicated that the AICPA had offered no courses entitled "Capital Investments--Long Term Debt," "Tax Reform Act of 1975" or "Tax Course," and Rex B. Cruse, Jr., director of the Continuing Professional Education Division of the AICPA, executed an affidavit to that effect.

   Composite exhibit No. 7, deposition of Jean P. Finegold. Respondent had indicated on his 1974 and 1976 reporting forms that he had taken courses with such names, sponsored by the AICPA. A subsequent search of the AICPA's bad debt file revealed that respondent had ordered self-study materials for courses named "Capital Structure and Long-Term Objectives," "Ins and Outs of IRS Practice and

   Procedures" and "Tax Reduction Act of 1975," but respondent "did not officially complete the courses by returning examinations. . .for grading." Composite exhibit No. 6, deposition of Jean P. Finegold.

   
   

7. Otha L. Brandon, a certified public accountant in Memphis, Tennessee, first engaged respondent's services in 1975. On four or five occasions thereafter, respondent was in Memphis for orientation and instruction in auditing certain types of accounts, including assignments from the Environmental Protection Agency (EPA). Toward the end of 1976, Mr. Brandon entered into a contract with the EPA to audit construction grants to certain municipalities, including eight Florida cities. He hired respondent to perform the Florida audits. On January 3, 1977, Mr. Brendon wrote respondent directing him to go ahead with the work. At the time, Mr. Brandon contemplated completing the job in mid-February, thinking he would send additional manpower to Florida to assist respondent. Unassisted, respondent made submissions to Mr. Brandon on the last of the eight cities in July or August of 1977. Mr. Brandon allocated approximately nine thousand dollars ($9,000.00) to the Florida portion of the project. Upon receipt of respondent's work, people in Mr. Brandon's office revised the reports to make them conform to EPA regulations and directives.

   This was taken into account when Mr. Brandon paid respondent in excess of seven thousand two hundred dollars ($7,200.00) for his services. Respondent has been a certified public accountant in Florida since 1972.

   
   

   CONCLUSIONS OF LAW

   
   

8. Petitioner is authorized to take disciplinary action against respondent's certificate if respondent "has been guilty of any fraudulent, wrongful, or unlawful act while holding such certificate. . .has committed any act which renders him unfit to associate with the fair and honorable members of the public accounting profession; or. . .was guilty of a violation of the provisions of. . .[C]hapter [473, Florida Statutes (1977)] or of any of the rules of the [petitioner]." Section 473.251(1)(c)(f) and (g), Florida Statutes (1977).

   
   

9. Pursuant to Section 473.111(4)-(9), Florida Statutes (1977), and former Rules 21A-13.03 and 21A-14.03, Florida Administrative Code, respondent was required to complete "at least 120 hours of educational instruction or training in public accounting subjects or courses of study," Rule 21A-13.03(1)(a), Florida Administrative Code, on or after June 24, 1973, and on or before December 31, 1976. The evidence showed that respondent did not meet this requirement.

   
   

10. The evidence also showed that respondent filed false reports, representing that he had met this requirement, which violates Rule 21A-3.02 and its predecessor Rule 21A-2.02, Florida Administrative Code.

    
    

11. The evidence did not establish the allegations of paragraph four of the administrative complaint.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's certificate for three (3) years.

DONE and ENTERED this 9th day of February, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1979.

COPIES FURNISHED:

James S. Quincey, Esquire

226 South Main Street Gainesville, Florida 32602

Thomas B. Calhoun, Esquire 3656 Shamrock Way

Tallahassee, Florida 32308

Docket for Case No: 78-001533

Orders for Case No: 78-001533