STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE EISEN, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0666

) STATE BOARD OF ACCOUNTANCY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 24, 1985. The Division of Administrative Hearings received a transcript of the proceedings on August 28, 1985.

APPEARANCES

For Petitioner: Petitioner appeared on his own behalf. For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General

LL04 The Capitol Tallahassee, Florida 32301

By a (proposed) final order entered by the Board of Accountancy on December 27, 1984, respondent "determined to deny the petitioner for lack of good moral character, based upon the results of the voluntary polygraph test taken by petitioner indicating it appeared petitioner cheated on the May 1984 CPA Examination and as evidenced by the Unusual Similarities Report on May 1984 Grades provided by the American Institute of Certified Public Accounts, as specified in Section 473.206(2)(a),

Florida Statutes." Respondent's Exhibit No. 2. The proposed order provided that petitioner's "application for the May 1984 CPA Examination . . . be denied and [that his] grades . . . on the May 1984 and November 1984 CPA Examinations . . . [be] expunged from the records of the Florida Board of Accountancy

Respondent's Exhibit No. 2. Petitioner requested formal administrative proceedings and the matter was referred to the Division of Administrative Hearings, pursuant to Section 120.57(1), Florida Statutes (1984 Supp.).

ISSUE

Whether petitioner's grades on the May and November 1984 certified public accountancy license examination should be expunged from respondent's records, and his application for admission to subsequent examinations be denied?

FINDINGS OF FACT

1. At the May 1984 certified public accountancy licensure examination, (petitioner Wayne Eisen's seventh such examination in Florida), he shared a table with one other applicant, a Mr. Felsner; who sat two to four feet away. The examiners had assigned the candidates seats. Although a proctor nearby noticed nothing amiss, it later came to respondent's attention that Messrs. Eisen and Felsner had given the same answers to fiftynine of the sixty multiple choice questions comprising the business law section of the examination.

   
   

2. "[S]omething highly irregular . . . occurred and it did not occur by chance." Respondent's Exhibit No. 1, p. 21. Both petitioner end Mr. Felsner gave identical wrong answers to thirty of the sixty questions, and they both agreed on

   twenty-nine correct answers. Whether either got the right answer to the remaining questions the evidence did not show. Those administering the test gave each examinee identical question booklets. The answer sheets had at least two different formats: on one, possible answers were in sequence horizontally; on the other, vertically. In format only, Mr. Felsner's answer sheet differed from petitioner's.

   
   

   POLYGRAPH

   
   

3. Petitioner agreed to take a polygraph examination. His further agreement that the Board of Accountancy could use the results as a basis for decision has been deemed a waiver of objection to their admissibility at hearing. Mr. Felsner also took a polygraph examination and made such an agreement, but petitioner's objection to the admission of the results of the polygraph examination Mr. Felsner took was sustained, since petitioner was not a party to the agreement between Mr. Felsner and the Board of Accountancy. Mr. Felsner did not testify himself.

   
   

4. In November of 1984, Alexandra Forest, licensed in Florida as a polygraph examiner since 1981, Spent an hour and 45 minutes with petitioner Eisen. Relying on her training to

   interpret the significance of certain physiological changes (pulse, blood pressure, breathing pattern, elect odermal changes) accompanying petitioner's responses to questions she asked, she concluded that petitioner did not tell the truth when he denied cheating on the May licensure examination. Ms. Forest conceded that polygraph examination results are "not perfect." (T. 44)

   OTHER EVIDENCE

   
   

5. Anthony G. Zicarri, petitioner's employer, has worked closely with him for three years on tax and accounting problems, and has full confidence in Mr. Eisen's integrity. Mr. Zicarri has a firm conviction that petitioner would not resort to cheating. Mr. Eisen did not take his eyeglasses into the examination room when he sat in May. His uncorrected vision has been measured at 20/60 and he cannot read license plates in traffic, without corrective lenses.

   
   

6. Petitioner's proposed recommended order filed September 17, 1985, contains proposed findings of fact which have been adopted in substance except to the extent that they are unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

   
   

   CONCLUSION OF LAW

   
   

7. With respondent Board's transmittal of Mr. Eisen's petition to the Division of Administrative Hearings, "the division has jurisdiction over the formal proceeding. Section 120.57(1)(b)(3), Florida Statutes (1984 Supp.).

   
   

8. Ordinarily an applicant for licensure has the burden to show entitlement by demonstrating the invalidity of the grounds proposed for denial. See Department of Transportation V. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 182 DCA 1981); Zemour, Inc., v. State Division of Beverage, 347 So. 2d 1102 (Fla. 1st DCA 1977) (lack of moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

   
   

9. In the present case, however, respondent had already admitted petitioner to the examination and now seeks to expel him. In these circumstances, respondent's counsel undertook to establish by clear and convincing evidence that petitioner cheated. He stated:

   
   

   [I]t is our burden to show that he in fact did cheat . . . it would be unfair for us to take any other position . . . it would be unfair not to at least present clear and convincing evidence, given the scope of what can happen to Mr. Eisan . . . .

   (T. 22)

   To the same effect see page 3 of petitioner's proposed recommended order. The Board of Accountancy proposes not only to

   deny petitioner application but also to disqualify him, perhaps permanently, from reapplying

   
   

10. The evidence showed very clearly that the similarity between Mr. Eisen's answers and Mr. Felsner's answers was no coincidence. Three possible hypotheses present themselves: Petitioner and Felsner corraborated; or petitioner copied Felsner's paper without his knowing; or Felsner copied from the unwitting petitioner. In choosing among these hypotheses. The fact that petitioner has repeatedly taken the test is not probative. On no prior test, indeed, did any such unexplained similarity occur, as far as the evidence shows.

    
    

11. The results of the polygraph test petitioner took (and agreed that the Board could consider) do tend to prove that he was untruthful in denying that he cheated on the May 1984 examination. The distinction drawn between evidence tending to disprove exculpatory evidence and evidence that tends to inculpate may or may not pertain here. In any event, the polygraph results are the only evidence arguably supporting the conclusion that it was petitioner and not Mr. Felsner, without petitioner's help, who cheated on the examination

    
    

12. The Board cannot carry the burden it has itself assumed, if the polygraph evidence cannot be said to be "clear and convincing." As a matter of law, it is impossible to conclude that polygraph results do constitute clear and convincing evidence, when the highest court of the state has recently held that the "Florida rule of inadmissibility reflects state judgment that polygraph evidence is too unreliable or too capable of misinterpretation to be admitted at trial," Delap v. State, 440 So. 2d 1242, 1247 (Fla. 1983), absent a stipulation.

    
    

13. The Delap court characterized the Florida rule as "well established," 440 So. 2d 1247, citing Zeigler v. State, 402 So. 2d 305 (Fla. 1981) cert. den. 455 U.S. 1035 (1982); Sullivan v. State, 303 So. 2d 632 (Fla. 1974) cert. den. 428

U.S. 911 (1976), and Kaminski v. State, 63 So. 2d 339 (Fla. 1952). Earlier the same year the court decided that a police officer could not be dismissed for his refusal to submit to a polygraph examination, calling the polygraph "a machine of undemonstrated scientific reliability and validity." Farmer v. City of Fort Lauderdale, 427 So. 2d 187, 191 (Fla. 1983). To

the same effect, see Walsh v. State, 418 So. 2d 1000 (Fla. 1982) and Jones v. State, 453 So. 2d 226 (Fla. 5th DCA 1984).

It is, accordingly, RECOMMENDED:

That respondent take no action altering petitioner's grades, nor deny him admission to the next certified public accountancy licensure examination.

DONE AND ENTERED this 20th day of September, 1985, at Tallahassee, Florida.

COPIES FURNISHED:

_

ROBERT T. BENTON,II

Hearing Officer

Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 20th day of September 1985.

Mr. Wayne Eisen

20 N.W. 203 Terrace Cl25 Miami, Florida 33169

John J. Rimes, III Assistant Attorney General Department of Legal Affairs

Office of the Attorney General The Capitol

Tallahassee, Florida 32301

Docket for Case No: 85-000666

Orders for Case No: 85-000666