The Issue Whether or not existing Rule 21A-20.012 F.A.C. is an invalid exercise of delegated legislative authority. See, Sections 120.52(8) and 120.56 F.S.
Findings Of Fact Petitioner Silvia S. Ibanez is a practicing attorney and a member of the Florida Bar, and holds active Florida CPA License No. 10842, currently in good standing. She is also a Registered Investment Advisor with the Florida Division of Securities and a certified financial planner (CFP). She has been charged with violating Rule 21A-20.012 F.A.C. in DOAH Case No. 91-4100 which is currently pending before the Division of Administrative Hearings. As a licensee with the federal Securities and Exchange Commission, Petitioner is required to, and does, disclose the fact that she is a CPA. Petitioner Ibanez is listed in the yellow pages under the heading "Attorneys" as "Ibanez, Silvia, S., CPA, CFP." On its face, there is nothing false or fraudulent about this listing. As an attorney, Petitioner also places CPA after her name on her business cards and on her letterhead. Respondent contends that because Petitioner "holds out" to the public as a CPA, uses accounting skills, and provides one or more types of management, advisory, or consulting services, she is currently "practicing public accounting." Intervenor James R. Brewster is also a practicing attorney, a Board- certified tax lawyer, and a member of the Florida Bar, and holds an active Florida CPA license. Mr. Brewster has been charged with violating Rule 21A- 20.012 F.A.C. in DOAH Case No. 90-3278 which is currently pending before the Division of Administrative Hearings. The administrative complaint therein charges violations of Rule 21A-20.012 F.A.C. and Sections 473.323(1)(a), (g), and (h) F.S. on the basis that Brewster's law firm letterhead designates him as a "CPA" and the law firm is not licensed by the Board of Accountancy as a public accounting firm. Intervenor American Association of Attorney Public Accountants (AAA- CPA) is a not-for-profit corporation with its principal place of business in Mission Viejo, California. Founded in 1964, the AAA-CPA is an active professional organization of persons dually qualified as both attorneys and CPAs. Its membership is comprised of practitioners in public accounting, law, government, education, and other activities. One of the functions of the AAA- CPA is to engage in the analysis and discussion of ethical and other issues related to practitioners who are dually licensed in the accounting and law professions. This includes monitoring and commenting upon legislation affecting the practice of law and public accountancy and participating in the development of ethical standards of lawyers and CPAs. AAA-CPA's substantial interests are affected by this proceeding in that its members are CPAs who are directly affected by the definition, scope, and regulation of the practice of public accounting by Florida statutes and rules. Respondent Board of Accountancy is an agency of the State of Florida established pursuant to the provisions of Chapter 473 F.S. Pursuant to Section 473.301 F.S., the Board is authorized in the following language to regulate the "practice of public accounting": Purpose.--The Legislature recognizes that there is a public need for independent and objective public accountants and that it is necessary to regulate the practice of public accounting to assure the minimum competence of practitioners and the accuracy of audit statements upon which the public relies and to protect the public from dishonest practitioners and, therefore, deems it necessary in the interest of public welfare to regulate the practice of public accountancy in this state. Respondent Department of Professional Regulation is an umbrella agency for the Board of Accountancy, established under the provisions of Section 20.16 and Chapter 455 F.S. Intervenor Florida Institute of Certified Public Accountants (FICPA) is a Florida not-for-profit corporation with its principal place of business in Tallahassee. Founded in 1905, the FICPA is an active professional organization with approximately 17,800 members. Its membership is comprised of practitioners in public accounting, industry, government, education, law, and other activities. One of the functions of the FICPA is to engage in the analysis and discussion of issues related to the accounting profession. This includes monitoring the scope of services provided by certified public accountants in Florida and throughout the United States, monitoring legislation affecting the practice of public accountancy, and participating in the development of auditing, accounting, and ethical standards of CPAs. Intervenor FICPA's substantial interests are affected by this proceeding in that its members are CPAs who are directly affected by the definition, scope, and regulation of the practice of public accounting by Florida statutes and rules. It is even recognized in the statute. See, Section 473.302 F.S., infra. Challenged existing Rule 21A-20.012 F.A.C., also referred to as the "holding out" rule, provides as follows: 21A-20.012 Holding Out. "Holding himself or itself out" as used in Section 473.302(4), F.S. is defined as publicizing that the licensee is a certified public accountant when providing, or offering to provide services or products to the public, in such a manner that an uninformed person may not be able to differentiate whether or not the licensee may also be in the practice of public accounting. The display of the CPA certificate and license issued by the Department of Professional Regulation shall not constitute holding out under the terms of this rule. All other publication of the fact that a licensee is a CPA constitutes holding oneself out. The specific statutory authorities currently cited by the agency for the rule are Sections 473.302, 473.304 and 473.307 F.S. and the law implemented is cited as Section 473.302 F.S. Section 473.307, dealing with "experience," does not impinge on these proceedings. The remaining authorities provide as follows: Definitions.--As used in this act: "Board" means the Board of Accountancy. "Department" means the Department of Professional Regulation. "Certified public accountant" means a person who holds a license to practice public accounting in this state under the authority of this act. "Practice of," "practicing public accountancy," or "public accounting" means: Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory consulting services, by a certified public accountant or firm of certified public accountants, of this state, including the performance of such services in the employ of another person; or Offering to perform or performing for the public one or more types of services involving the use of accounting skills or one or more types of management advisory or consulting services, by any other person holding himself or itself out as a certified public accountant or firm of certified public accountants, including the performance of such services by a certified public accountant in the employ of a person so holding himself or itself out. However, these terms shall not include services provided by the American Institute of Certified Public Accountants, the Florida Institute of Certified Public Accountants, or any full service association of certified public accounting firms whose plans of administration have been approved by the board, to their members or services performed by these entities in reviewing the services provided to the public by members of these entities. [Emphasis supplied] 473.304 Rules of board.--The board shall adopt all rules necessary to administer this act. Every licensee shall be governed and controlled by this act and the rules adopted by the Board. Also relevant to these proceedings is Section 473.322 F.S. which provides as follows: 473.322 Prohibitions; penalties.-- No person shall knowingly: Practice public accounting unless the person is a certified public accountant or a public accountant; Assume or use the titles or designations "certified public accountant" or "public accountant" or the abbreviations "C.P.A." or any other title, designation, words, letters, abbreviations, sign, card, or device tending to indicate that such person holds an active license under this act, unless such person holds an active license under this act; Attest as an expert in accountancy to the reliability or fairness of presentation of financial information or utilize any form of disclaimer of opinion which is intended or conventionally understood to convey an assurance of reliability as to matters not specifically disclaimed unless such person holds an active license under this act. This subsection shall not prevent the performance by persons other than certified public accountants of other services involving the use of accounting skills including the preparation of tax returns and the preparation of financial statements without expression of opinion thereon. Present as his own the license of another; Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license; Use or attempt to use a public accounting license which has been suspended, revoked, or placed on inactive status; Employ unlicensed persons to practice public accounting; or Conceal information relative to violations of this act. Any person who violates any provisions of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [Emphasis supplied] Although it has not been challenged, Rule 21A-21.009 F.A.C., the "other business activity rule," is relevant to these proceedings. That existing rule currently provides as follows: 21A-21.009 Other Business Activities. A licensee engaged in the practice of public accounting may concurrently engage in another business, occupation, or profession if: The licensee does not hold himself out as a certified public accountant in that activity, The activity is conducted under a name which the public will not associate with licensee's practice of public accounting, The other business, occupation, or profession is not used to promote the practice of public accounting in any manner prohibited by Chapter 473, F.S., Facilities used by the licensee in his public accounting practice and other activity conform to the requirements of 21A-26.001(3), The entity's dealings with the licensee's public accounting clients shall not violate the provisions of Chapter 473, F.S., and 21A, Florida Administrative Code, relating to integrity and objectivity, The entity does not interpret financial statements, forecasts or projections audited, reviewed, compiled or prepared by others. [Emphasis supplied] Although it has not been challenged, Rule 21A-20.011 F.A.C. is relevant to these proceedings. That existing rule currently provides as follows: 21A-20.011 Practice of, or Practicing Public Accountancy. "Practice of, or practicing public accountancy" as defined by Section 473.302(4), F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473, or Activities of licensees who do not hold themselves out as CPAs and who are not associated with financial statements, or Activities of licensees who do not hold themselves out as certified public accountants. [Emphasis supplied] Petitioner's and Intervenor Brewster's CPA certificates (like all Florida CPA certificates) authorize them to display their CPA credentials. The CPA certificate represents that the recipient . . . has passed all examinations and has met all other requirements prescribed by law and by rule of this board for certification as an expert public accountant, and is therefore entitled to append the letters CPA after this registrant's name to evidence registration by this board as a Certified Public Accountant. [Emphasis supplied] The Board's only classifications of CPA licenses/licensees are "active" or "inactive." "Active" and "inactive" refer to the status of the CPA license and do not refer to or imply that the licensee is actively practicing public accounting. One can be an actively licensed CPA and not be practicing public accounting. Attainment of the CPA credential is an accomplishment that is recognized in the business community. The CPA credential of a Florida-licensed CPA connotes high competency and achievement levels in the discipline of accounting. Truthful communication of the CPA credential by actively licensed CPAs for identification purposes constitutes valuable disclosure to the public. The use of the term "CPA" implies a specific competency to the public. The fact that Petitioner Ibanez or Intervenor Brewster is a CPA is valuable to their respective legal clients. CPA status is a valuable property right to each CPA, and the ability of a practicing attorney to publicize the fact that s/he also holds an active CPA license is a valuable asset to that individual. It is conceded by all parties that it is possible to practice law and public accounting in the same business activity. There are firms that simultaneously hold themselves out as law firms and public accounting firms. The activities of other regulated professionals, such as members of the Florida Bar, which overlap those of practicing CPAs are subject to the regulatory standards of their principal regulated professions and applicable judicial and administrative remedies for malpractice and negligence. It is conceded by all parties that many activities conducted by professionals and nonprofessionals, other than by CPAs and other than by attorneys, are identical to activities performed by CPAs engaged in public accounting. For instance, anyone can legally prepare a tax return. Bookkeepers and free-lance tax assistors of all sorts are unregulated in any way. The only activity among public accounting activities that is a unique activity of CPAs is the "attest" function. See, Section 473.322(1)(c) F.S. Truthful use, communication, or disclosure of the CPA credential by an actively licensed CPA does not per se constitute false, misleading, or deceptive advertising. The evidence does not support a finding that withholding truthful disclosure that one has earned the CPA credential benefits the public welfare or effects the purposes of the enabling legislation, or indeed, how such nondisclosure could promote them, particularly since it has been shown that persons of considerably lesser competency and achievement levels in the discipline of accounting may legally offer to the public almost all the services provided by CPAs. Prior to 1984, when the "holding out" rule was adopted, a Florida- licensed CPA who offered one or more types of accounting services to the public or who offered one or more types of management advisory or consulting services to the public was considered to be "practicing public accountancy," whether or not that person appended the initials "CPA" after his or her name. The "holding out" rule became effective on September 17, 1984. Chapter 89-87 Laws of Florida amended Section 473.302(4) F.S. (i.e., the definition of public accountancy) but the amendment did not change the previously existing "holding out" language therein. The "holding out" rule was adopted more than one year before the initiation of this rule challenge. There is no dispute among the parties that the definition within the challenged Rule 21A-20.012 F.A.C. is circular. In attempting to define the term "holding out" so that the use of that term in Section 473.302(4) F.S. may be clarified, the rule incorporates the statutory phrase "practice of public accounting," and the term "practice of public accountancy/accounting" in Section 473.302(4)(b) F.S. incorporates the term "holding out," 1/ as does Rule 21A- F.A.C., 2/ which creates exemptions to the statute. At least one purpose of the second sentence of the existing rule seems to have been to allow all CPAs to display their CPA certificates on their inner office walls without fear of disciplinary action by the Board. The Board's expressed rationale for excluding "display of a CPA certificate" from its "holding out" rule is premised on the fact that during an office visit, a CPA can immediately disabuse any individual of the fact that s/he is practicing public accounting once that individual is inside the CPA's office. However, Petitioner demonstrated, and the Board conceded, that an individual may have the opportunity to disabuse members of the public that s/he is engaged in the activity of the practice of public accounting or that s/he is offering all the services normally associated with a CPA, as opposed to law or some other profession, at least where there is direct contact by letter or telephone. Clearly, there are many ways a nonattesting, actively licensed CPA who is dually licensed can clarify to those seeking his or her services which profession, function, or service s/he is willing to perform for that client. On the other hand, the challenged rule does not deal with all members of the public, or members of the public specifically seeking CPA services, or members of the public seeking some other service. The rule deals with "uninformed persons." As used in the rule, the term "uninformed person" is undefined and has been subject to differing speculative interpretations by the Board and by non-Board witnesses, some of which interpretations address such broad categories as anyone using a telephone book. The Board also suggested that only display of the original CPA certificate on an inside office wall would be exempt from prosecution for publication, but a reasonable person could interpret the rule on its face to permit posting the CPA certificate or an exact facsimile of the certificate on a sign outside an office building or circulating as business cards exact reduced- size copies of the certificate even though these types of "publication" or "display" would not provide the same opportunity as an office visit would provide for the CPA to disclose to individuals the actual services the CPA was offering to perform. Accordingly, there has been no rational basis for the "holding out" rule's distinction between "display" of the licensee's CPA certificate and other forms of truthful, nonmisleading publication of the CPA licensure/status. The agency's expressed rationale behind its adoption of the "holding out" rule was to define the meaning of the statutory term "holding out," as used in Section 473.302(4) F.S., a term which has also been adopted into a number of other rules (see, supra), so as to provide guidance on when a person who has been licensed as a CPA is engaged in the "practice of public accounting." Specifically, the Board maintained that the "holding out rule" and the "other business activity rule" give licensees two options. Under the first option, the "holding out" rule permits licensees to retain their CPA certificates when not in compliance with all of the provisions of Chapter 473 F.S. and the rules promulgated thereunder, as long as they do not publicize themselves as CPAs. Alternatively, the Board perceives that under the second option, if licensees do publicize themselves as CPAs when performing services for the public, licensees become subject to regulation by the Board and are held to the standards of competency and conduct which are applicable to all CPAs who use their accounting skills for the public while trading on the fact of their licensure as a Florida CPA. However, the words "publicizing" and "publication" as used in the "holding out" rule are also undefined. Although Respondents submitted that the "common usage" of these words is sufficient to embrace listings in the yellow pages, it is also quite possible to give these words a far broader reading to encompass the "assumption" and "use" of the designation "CPA" and the "assumption" and "use" of the CPA credential, which "assumption" and "use" are specifically reserved to all actively licensed CPAs and which designation is permitted to be inserted after their names on signs, cards, or devices by Section 473.322(1)(b) F.S. [see Finding of Fact No. 11] and by the CPA certificate itself which permits them to "append" CPA after their names [see Finding of Fact No. 14]. The rule has actually subjected CPAs, and specifically has subjected Petitioner and Intervenor Brewster, to DPR disciplinary proceedings independent of any other act or wrongdoing merely for any "publication" of the CPA credential in a form other than display of the original CPA certificate on an inner office wall. The rule may automatically subject attorney-CPA licensees to DPR disciplinary proceedings independent of any other act or wrongdoing merely on the basis of passive, truthful communications which are otherwise in full compliance with the standards of the Florida Supreme Court and Florida Bar. The rule has the potential for being interpreted so as to prohibit CPAs such as Petitioner and Intervenor Brewster from making disclosures of their earned status as CPAs to various regulatory bodies to which they are required by law to disclose that information. See, Findings of Fact 1 and 2, supra. The rule can be invoked to limit their income by chilling their appearances as expert CPA witnesses for a fee even if they never work for an uninformed layman at all. Applicants for certain state employments and candidates for public office may run afoul of the rule due to the disclosure requirements of public office. Even at risk is the CPA called as a factual witness who is then sworn to tell the truth and asked innocuous biographical information. One's desire to attain a CPA credential may be chilled by the hazard of using it. Chapter 473 F.S. contains limitations on competitive negotiation, prohibits accepting contingent fees, prohibits the payment of certain commissions, and establishes other prohibitions to which persons who are deemed to be "practicing public accountancy" must adhere. Some of these prohibitions are contrary to normal, ethical practice of other professions, i.e., acceptance of contingent fees by lawyers. If the rule remains intact, the Board and DPR under Chapters 473 and 455 F.S. have the potential of breaching the confidentiality of CPA-attorneys' legal clients' files. See, Section 473.316(5) and 473.318 F.S. Since attorneys are exclusively overseen by the Florida Supreme Court, the rule potentially violates the doctrine of "separation of powers" among the three branches of state government. Therefore, the definitional rule creates a wedge whereby the Board may insinuate its discipline into other professions and confuses dually licensed CPAs from knowing how they may behave in each profession without running afoul of discipline in the other. In application with other rules, the "holding out" rule sets confusing and varying standards for agency decisions involving attorneys, bankers, CPAs employed by private corporate employers, and CPAs with their own financial consultant firms. The Board of Accountancy has issued a series of letter opinions based on the "holding out rule" or based on that rule read in conjunction with Rule 21A-21.009 F.A.C., the "other business activity rule," which indicate that a Florida CPA who does not "hold out" to the public as a CPA and who is not associated with financial statements is permitted by the Board to engage in other business activities without complying with the provisions of Chapter 473 F.S., that is, not being subject to DPR discipline, because the Board does not view that CPA in those activities as "practicing public accountancy." Also, the Board of Accountancy has issued a series of opinions to the effect that, by virtue of Section 473.302(4) F.S. and the "holding out rule," a CPA who "holds out" (publicizes his or her status as a CPA) is automatically, by definition, "practicing public accounting," regardless of what actual business activity s/he is performing. These opinions also indirectly insinuate the Board of Accountancy into many other professions, including the practice of law, which the Board has no statutory mandate to regulate pursuant to Section 473.301 F.S. The plethora of opinions issued by the Board dramatize the confusion experienced by CPAs who have sought to have the Board interpret the rule in question on a case-by-case basis. Testimony of the Chairman of the Board was offered to establish that absent the challenged rule, the Board cannot reasonably regulate negligence in the profession and that absent the rule, only fraud could be prosecuted by the Board. He testified that, in his opinion, the challenged rule means that a CPA performing tax services for a client is not doing "public accounting" if "CPA" is not appended after the CPA's name in advertising and that that CPA cannot be disciplined by the Board for negligence, any more than he could be disciplined if he were a non-CPA doing tax services. The Chairman further opined that a CPA doing tax services is doing public accounting only if he appends CPA after his name, and in that instance, the Board can and will discipline that CPA for negligence, should he commit any. Further, the Chairman indicated that if Rules 21A-21.009, 21A-20.011, and 21A-20.012 F.A.C. were not simultaneously in place, the actively licensed CPA who places CPA after his name could not be disciplined by the Board for negligence, but only for fraud. Precisely how this would occur was not made clear, but upon the foregoing, together with the Board opinions admitted in evidence, it is concluded that the Board has utilized what purports to be purely a definitional rule to establish disciplinary jurisdiction and that in certain instances the rule puts DPR in the precarious position of only being able to prosecute CPAs with "CPA" appended after their names, but not CPAs who perform the same services and who do not append "CPA" after their names. Such a result is nonsensical. The Board does not seriously suggest that if Rule 21A-20.012 F.A.C. is invalidated, Rule 21A-20.011 would provide a blanket exclusion from all provisions of Chapter 473 F.S. for CPAs "using" or "assuming" or "publicizing" their status. At a minimum, such CPAs would have to maintain their credential as would any other CPA for good character, payment of fees, and recertification for competency based on continuing education. What has actually occurred here is that the Board has consciously utilized Rules 21A-20.011 and 21A-20.012 F.A.C. so as to not enforce Section 473.302(4)(a) as written and so as to selectively enforce only Section 473.302(4)(b) F.S. Then, by its selective enforcement of Rule 21A-20.012, the Board has gone a step further. The Board has "interpreted" Section 473.302(4)(b) to include within Board jurisdiction not those functions, activities, or skills a CPA practices or holds out to the public for a fee as constituting "practicing public accountancy" but has made the definition of "practicing public accountancy" encompass any disclosure of CPA status or skill attainment, regardless of the disclosure's truth and regardless of whether or not the CPA is utilizing any of the functions, activities, or skills of a CPA. By so doing, the Board has exceeded its statutory mandate and legislative purpose as set forth in Section 473.301 F.S. On its face, Rule 21A-20.012 F.A.C. consists of three sentences, which, in relationship to each other, are inconsistent and contradictory. Specifically, sentence ONE seems to be based on the overall representation made by a CPA to "uninformed persons." It simultaneously presumes fraud in the communication of what otherwise would be truthful, passive information. 3/ Sentence THREE subjects the CPA to discipline absent any fraud and totally without consideration to the impression formed by "uninformed persons" from the use of the CPA designation in any manner other than display of the certificate. 4/ Because there are two incompatible definitions in the challenged rule as now drafted, the Board is at liberty to selectively enforce the statute. One CPA could be prosecuted for simple disclosure of credential status or neutral biographical information (Ibanez). Another CPA might be prosecuted only after examination of the totality of his circumstances to determine if the circumstances mislead "uninformed persons" into believing he abides by all the regulations promulgated under Chapter 473 F.S., and still another CPA would never be prosecuted unless he performs the attest function. This is nonsensical and clearly unfair.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On June 9, 1987, Respondent entered into a contract with Kevin D. Foy for the construction of a pool with a screen enclosure on Mr. Foy's property for the sum of $12,000.00. On August 12, 1987, Mr. Foy made his final payment to the Respondent for the pool and enclosure and all related work. On June 9, 1987, Respondent entered into a contract with Harold Orcutt for the construction of a pool with a screen enclosure on Mr. Orcutt's property for the sum of $18,015.00. On August 1, 1987, Mr. Orcutt made his final payment to the Respondent for the pool and enclosure and all related work. On May 12, 1987, Respondent entered into a contract with Ann McAuley for the construction of a pool with a screen enclosure on Ms. McAuley's property for the sum of $14,204.08. On September 18, 1987, Ms. McAuley made her final payment to the Respondent for the pool and enclosure and all related work. At the end of September, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Foy residence, pursuance to the Respondent's contract with the Foys. The total Paragon contract price was $3,975.00 which was to be paid by the Respondent to Paragon within two weeks of October 6, 1987, which was the completion date. The Respondent failed to pay that amount in a timely manner. On or about July 16, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install the pool enclosure at the Orcutt residence pursuant to the Respondent's contract with the Orcutts. The total Paragon contract price was $4,910.00, which was to be paid by the Respondent to Paragon within two weeks of the first part of August, 1987, which was the completion date. The Respondent made a partial payment on August 17, 1987, of $3,015.00 and the balance of $895.00 was not paid in a timely manner. On or about July 20, 1987, the Respondent entered into an oral contract with Paragon Aluminum Products, Inc. to have Paragon Aluminum Products, Inc., install a pool enclosure at the McAuley residence pursuant to the Respondent's contract with Ms. McAuley. The total Paragon contract price was $4,321.00 which was to be paid by the Respondent to Paragon within two weeks of August 5, 1987, which was the completion date. The Respondent made a partial payment on September 12, 1987, of $2,704.08 which left a balance of $1,616.92 which was not paid in a timely manner. When the Respondent failed to timely pay Paragon Aluminum Products, Inc., at the end of the foregoing jobs, an officer of Paragon contacted the Citrus County Building Department in an effort to have that department aid her in collection of the monies owed. The Respondent admitted to an investigator of the Department of Professional Regulation on June 7, 1988, that he was having cash problems in relation to the three jobs, that all work had been completed, but due to those cash flow problems, Paragon had not been paid in full. The Respondent signed a personal promissory note for the full amount due to Paragon. No liens were ever filed by Paragon. The Respondent's county license was suspended the Citrus County Licensing Board on May 11, 1988, until he was able to show financial responsibility to that board. That suspension was lifted by the Citrus County Licensing Board on October 12, 1988. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $1500 for the violation of Section 489.129(1)(i) Dismiss the remaining charges made in the Administrative Complaint. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1989.
The Issue The issues in this case are whether Petitioner is entitled to an award of attorney's fees and/or costs, pursuant to section 120.595(4); and, if so, the amounts of attorney's fees and/or costs to which he is entitled.
Findings Of Fact On March 3, 2017, DOAH entered an Amended Final Order in Case No. 16-6127RU, determining that a portion of the Florida Department of Highway Safety and Motor Vehicles Procedure Manual TL-10, dated April 30, 2014, and Technical Advisory RS/TL 14-18, dated October 20, 2014 (hereafter, the "Unadopted Rules"), are unadopted rules that violate section 120.54(1)(a). "Stephen J. Williams, as a Trustee for the Sparkhill Trust," is Petitioner in this proceeding, and also was Petitioner in Case No. 16-6127RU. Petitioner appeared in Case No. 16-6127RU as a trustee of the Sparkhill Trust ("Trust"), which holds title to the motor vehicle for which a certificate of title was denied by Respondent and its agent, the Lee County Tax Collector, in 2014. As previously found in Case No. 16-6127RU, Petitioner also is the beneficiary of the Trust. Petitioner is not licensed to practice law in Florida, and has neither alleged nor shown that he was licensed or otherwise authorized to practice law in Florida at any point during the pendency of Case No. 16-6127RU.2/ Petitioner received a law degree from the University of Connecticut School of Law and is licensed to practice law in Connecticut, New York, and the District of Columbia; however, he currently is suspended from practicing law in those jurisdictions. Petitioner also is a lawyer on the Roll of Solicitors in England and Wales, but is not currently authorized to practice in those jurisdictions because he does not hold a practicing certificate. Petitioner asserts in the Motion that he is an attorney acting in a representative capacity as a trustee on behalf of the Trust. Petitioner filed a document titled "Declaration of Stephen J. Williams in Support of Petitioner's Motion for Attorney's Fees and Costs" ("Declaration") in support of the Motion. Although the Declaration represents that it is made "under penalty of perjury," it does not constitute a legally sufficient oath or affidavit because it does not comply with the requirements of section 92.50(1), Florida Statutes. Specifically, it does not contain a jurat or certificate of proof or acknowledgement authenticated by the signature and official seal of a judge, clerk or deputy clerk of court of record in this state, or a United States commissioner or notary public in this state, as required by the statute.3/ Petitioner attached an itemized timesheet to the Declaration. The timesheet lists, for each item for which attorney's fees are sought, the date and description of the legal services alleged to have been rendered for the particular item, and the amount of time alleged to have been spent per item. The timesheet represents that a total of 54.8 hours were spent in prosecuting Case No. 16-6127RU. Petitioner asserts that he is entitled to a $350.00 per hour attorney's fee, multiplied by a 1.5 loadstar multiplier, and a contingency multiplier of three, for a total of $86,310.00 in attorney's fees. Attached to the Declaration is email correspondence sent to Petitioner by Kiara Guzzo, Respondent's Public Records Coordinator, stating that Petitioner owed $119.73 for Respondent's response to Petitioner's public records request. In the Declaration, Petitioner states that "[t]he attached email of Guzzo email [sic] accurately indicates the out-of-pocket expenses which have been paid." Pursuant to his statement in the Declaration, Petitioner is "exclusively engaged in the practice of law." Pursuant to his statement in the Declaration, Petitioner undertook the prosecution of Case No. 16-6127RU on a contingency basis, with his attorney's fees being "limited to that approved by this tribunal."4/ Petitioner previously challenged the Unadopted Rules in two DOAH proceedings, Case Nos. 14-6005RU and 15-0484RU.5/ Thus, as far back as 2014, Respondent was on notice that its statements (i.e., the Unadopted Rules) may constitute unadopted rules.
Findings Of Fact Based upon the parties' factual stipulations, the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On August 28, 1992, Petitioner submitted to the Department its application for licensure as a mortgage lender. 1/ On October 28, 1992, the Department sent Petitioner a letter announcing its intent to deny Petitioner's application for licensure as a mortgage lender. The text of the letter read as follows: This is to inform you that your Application for Licensure as a Mortgage Lender for Citifirst Mortgage Corp. is hereby denied. The denial is based on Section 494.0072(2)(k), Florida Statutes. Section 494.0072(2), Florida Statutes, "Each of the following acts constitutes a ground for which the disciplinary actions specified in subsection may be taken: . . . (k) Acting as a mortgage lender or correspondent mortgage lender without a current active license issued under ss. 494.006-494.0077." The Department's investigation revealed Citifirst Mortgage Corp. has acted as a mortgage lender without a current, active license. Please be advised that you may request a hearing concerning this denial to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. Requests for such a hearing must comply with the provisions of Rule 3-7.002, Florida Administrative Code (attached hereto) and must be filed in duplicate with: Clerk Division of Finance Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 (904) 487-2583 within twenty-one (21) days after receipt of this notice. Failure to respond within twenty-one days of receipt of this notice shall be deemed to be a waiver of all rights to a hearing. Should you request such a hearing, you are further advised that at such a hearing, you will have the right to be represented by counsel or other qualified representative; to offer testimony, either oral or written; to call and cross examine witnesses; and to have subpoenas and subpoenas duces tecum issued on your behalf. Petitioner timely requested a formal hearing on the proposed denial of its application. The matter was referred to the Division of Administrative Hearings, where it is still pending.
Findings Of Fact Shechet holds Certificate No. R-0573 as a certified public accountant practicing in the State of Florida, which he received by virtue of reciprocal status, having previously practiced in the State of Ned York. Shechet began his accounting career in 1924 and has practiced his profession continuously for the fifty-three years since that time. The records of the Board reflect that Shechet provided no evidence of the completion of any courses or studies that would give him credits towards the reestablishment of his professional competency in the period between January 1, 1974, and April 2, 1977. On September 15, 1975, Shechet sat for an examination which was approved by the Hoard and given to practicing certified public accountants pursuant to applicable law requiring reestablishment of professional competency. Shechet received a score of 3 out of a possible score of 100. The established passing grade for the examination is 75. The examination consisted of 100 multiple choice questions, each with 4 responses. The approved method of answering the questions was to select one response and then, on the answer sheet, darken the circle corresponding to the letter assigned to the selected response. If more than one circle is darkened in a given set of responses, the answer is marked wrong. In each of the 100 answers, Shechet marked more than one response either by darkening, check mark or "X". On May 13, 1977, the State Board of Accountancy suspended Shechet's certificate R-0573 as a certified public accountant for failing to comply with requirements for the reestablishment of his professional knowledge and competency to practice public accounting.
