120.57" with the Board of Accountancy asserting that she should be allowed to sit for a portion of the CPA (Certified Public Accountant) examination an additional time under the Board's rules, that the rules were not properly passed, and that the statute which serves as the putative authority for the rules is unconstitutional. The Board forwarded the petition to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing in accordance with the provisions of Section 120.57(1)(b)3, Florida Statutes. The Board filed a motion to dismiss which was granted in part by an order entered September 13, 1979. Allegations respecting the unconstitutionality of statutes and rules of the Board were stricken as being beyond the scope of a Hearing Officer from the Division of Administrative Hearings to adjudicate. The final hearing was scheduled by notice dated August 6, 1979.
At the final hearing the Petitioner testified as a witness on her own behalf. Cleveland P. Nolty, the Board's Administrative Assistant, testified on behalf of the Board of Accountancy. Petitioner's Exhibit 1 and Respondent's Exhibit 1 were identified and were received.
The Petitioner completed an academic program in accounting at the University of South Florida in March, 1976. She applied to sit for the May, 1976 Certified Public Accountant's examination, and paid her fee. There are four sections to the examination: Auditing, Law, Theory, and Practice. At the May, 1976 examination the Petitioner passed the Law section, but failed the sections on Auditing, Theory and Practice. Accordingly, under the Board's rules, the Petitioner was not credited with having passed any sections of the examination, and needed to take the entire test again. She applied to sit for the November, 1976 examination, paid her application fee, and sat for the examination. On this occasion she passed the Theory and Practice sections of the examination but failed the Auditing and Law sections.
Under the Board's rules the Petitioner at this juncture was credited with having passed the Theory and Practice sections, and would be allowed to sit for the next three consecutive examinations in order to pass the remaining two sections. She applied to sit for the May, 1977 examination, paid her fee and sat for the examination. She passed the Law section and failed Auditing. At this juncture she needed to pass only the Auditing section, and had two examinations within which to accomplish that. She applied to sit for the November, 1977 examination. The deadline for making application was September 1, 1977. The Petitioner, through her own mistake, was lake in making application, and her application was rejected. She was not permitted to sit for the November examination. She did timely apply for the May, 1978 examination. She again failed the Auditing section with a score of 69. Under the Board's rule her application for certification as a CPA was considered she would need to being again the testing process, without being credited with having passed any sections. She applied for a regrading of the May, 1978 examination. The examination was regraded, but her score was not changed.
The Petitioner is seeking, through this proceeding, an opportunity to retake the Auditing section of the examination, while continuing to receive credit for having passed the Law, Theory, and Practice sections. Under the Board's interpretation of its rules, she would not receive credit for having passed the sections, but would need to begin the testing procedure as a new applicant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes.
Under the Board's rules, Chapter 21A-10, Florida Administrative Code, applicants for licensure as Certified Public Accountants are required to pass an examination which includes sections on Auditing, Commercial Law, Theory of Accounts, and Accounting Practice. All four sections must be passed in order for an applicant to be licensed. A "first-time candidate" is defined as follows: (Rule 21A-10.01(2))
A first-time candidate is defined as a candidate who is required to file an application to sit for all four subjects of an examination either as an original candidate or as a prior candidate who has not received credit for all four
subjects within the sittings allotted, and under the conditions required, by the Board.
An "extended candidate" is defined as a: (Rule 21A-10.01(3))
. . . candidate taking an examination after sitting as a first-time or extended candidate who has not been granted
credit for any subjects on the examinations commencing with this most recent sitting as a first-time candidate.
A "conditioned candidate" is defined as a: (Rule 21A-10.01(4))
. . . candidate taking an examination after sitting as a first-time or extended candidate who has been granted credit for either two or three subjects on the examinations commencing with his most recent sitting as a first-time candidate.
If a first-time candidate does not pass any sections of the examination, or passed only one section, she is not given credit for passing any sections. She thus becomes an extended candidate. She then is permitted to sit for the next three consecutive examinations unless she becomes a conditioned candidate as a result of passing two or more sections of the examination. Once an extended candidate becomes a conditioned candidate, she may sit for the next three consecutive examinations in order to pass the remaining sections of the examination. Rule 21A-10.01(1),(2). When the Petitioner applied to take the May, 1976 examination she was a first-time candidate. Since she passed only one section she was not given credit for any of the sections, and continued to have the obligation to pass all four sections. She thus became an extended candidate. When the Petitioner passed two sections of the examination in November, 1976 she became a conditioned candidate. She was thus permitted to sit for the next three consecutive examinations in order to pass the remaining two sections. Rule 21A-10.06 (1)(a). The Petitioner took the first of these examinations in May, 1977 and passed one more section. The next consecutive examination was November, 1977, but her application was late, and she was not permitted to sit for the examination. The third consecutive examination for the Petitioner following her becoming a conditioned candidate was May, 1978. She again failed the Auditing section of the examination, and under the Respondent's rules, reverts to being a first-time candidate.
The Petitioner contends that the Board is misconstruing its rules, and that she should be permitted to sit for one more examination as an extended candidate. Rule 21A-10.01(1)(a) provides: (emphasis supplied)
A first-time candidate who becomes a conditioned candidate as a result of sitting as a first-time candidate shall be permitted to sit for the next four consecutive examinations. A first-time candidate who does not become a conditioned candidate as a
result of sitting as a first-time candidate becomes an extended candidate and shall be permitted to sit for the next three consecutive examinations unless he shall become a conditioned candidate as a result of anyone of
such three consecutive examinations in which event he shall be permitted to sit for the next three consecutive
after becoming a conditioned candidate.
Petitioner contends that since the rule provides that a conditioned candidate shall be permitted to sit for the next three consecutive examinations, it was inappropriate for the Board to deny the Petitioner's application to sit for the November, 1977 examination. Rule 21A-10.04(2) provides:
Applications to sit as an extended or conditioned candidate shall be made by written letter of request to the Board. Such written request and application fee shall be filed with the Board no later than March 1 for the May examina- tion and September 1, for the November
examination. If mailed, the application must be postmarked no later than March 1 for the May examination and September 1 for the November examination.
Rule 21A-10.04(3) provides:
It is the responsibility of each appli- cant to make timely delivery of the required fee and forms. In no instance will applications be accepted by the Board if the deadlines contained in
21A-10.04(1) and 21A-10.04(2) have not
been met.
The rules clearly place the responsibility upon the applicant to make a timely application to sit for an examination. Under Rule 21A-10.06(1)(a) a conditioned candidate who mades a timely application must be permitted to sit for the examination. The rule does not, however, absolve the applicant from the responsibility of making a timely application. The evidence in this case would not support any finding or conclusions except that the Petitioner failed to make a timely application as a result of her own negligence.
The Petitioner also contends that the phrase "next three consecutive examinations" means the next three consecutive examinations that the applicant actually takes. This contention is without merit, and is contrary to the language of the rule. Rule 21A-10.06(1)(a).
The Petitioner contends that the Respondent's rules constitute invalid exercises of delegated legislative authority. Even assuming that a petition for hearing under the provisions of Section 120.57(1), Florida Statutes, provides an appropriate vehicle for adjudicating the validity of an agency's rules, it has not been established in this case the rules are invalid. Section 473.10, Florida Statutes provides:
The board shall conduct examinations by the propounding of questions in writing. The method of conducting the examination and all regulations concerning the same shall be prescribed by the board in rules to be adopted in accordance with this chapter. The board shall prescribe by such rules methods for grading papers, and shall prescribe what shall constitute a passing grade entitling the applicant to a certificate. The examination shall be in theory of accounts, practical accountancy, auditing, commercial law
as affecting accountancy, ethics, and such other related subjects as shall be specified by the board.
The Board's method of allowing various opportunities to pass the examination, and labeling applicants "first-time candidates," "extended candidates," or "conditioned candidates" is a somewhat confusing system. It does, however, appear to be calculated to assure that applicants demonstrate competency in each of the required areas in a reasonably contiguous time frame. The rules appear to fall directly within the ambit of the statute.
The Petitioner's application to sit for one more examination as a "conditioned candidate" should be denied. The Petitioner, can, however, reapply to take the examination as a "first-time candidate."
