Findings Of Fact Petitioner attended the University of Dayton in Dayton, Ohio, for five semesters beginning in 1966 and ending in 1969. In the first term of the 1967-1968 school year, Petitioner registered for five academic subjects. He received two failing grades and was officially withdrawn from a third class: COURSE DESCRIPTION GRADE CR PTS PSY 201 INTRO PSYCHOLOGY C 3 6 HST 270 ECONOMIC HST OF U.S. D 3 3 ENG 205 MAJOR WORLD WRITERS F 3 0 MIL 201 SECOND YEAR BASIC F 1 0 POL 201 AMER. GOVT-NATL. W 3 0 HRS 10.0 PTS 9.0 AVE 0.9000 ACADEMIC DISMISSAL In the first term of the 1968-1969 school year, Petitioner registered for six academic subjects. He received two failing grades and was officially withdrawn from a third class: COURSE DESCRIPTION GRADE CR PTS ENG 201 POETRY & THE NOVEL C 3 6 FRN 202 INTERM FRENCH II C 3 6 MIL 201 SECOND YEAR BASIC W 1 0 PHL 306 EPISTEMOLOGY F 3 0 POL 303 STATE AND LOCAL GOV F 3 0 POL 306 INTERNATIONAL LAW C 3 6 HRS 15.0 PTS 18.0 AVE 1.2000 ACADEMIC DISMISSAL Petitioner testified that these unsatisfactory grades were not the true evaluation of his academic performance. He claims that they were awarded by professors who refused to follow policies relating to unlimited cuts, attendance, withdrawal, and nonpayment/financial aid adopted by the university in the late 1960s. The record contains copies of the applicable university policies. However, there is no record evidence that the University of Dayton ever corrected Petitioner's transcript to reflect his alleged true academic standing. In 1992, Petitioner began attending Saint Thomas University in Miami, Florida, to complete his education and prepare for a teaching career. Petitioner discussed his prior academic history with a friend, Jeanette Gendron. Ms. Gendron was very concerned that the failing grades from the University of Dayton would adversely impact Petitioner's career in general and his application for a teaching certificate in particular. Petitioner was aware of Ms. Gendron's concerns as they discussed them over the years. Petitioner graduated from Saint Thomas University, Miami, Florida, in May of 1993 with a B.A. degree. On or about June 29, 1993, Petitioner filled out and executed an application for a Florida teaching certificate in the field of Social Science, grades six (6) through twelve (12). On said application, Petitioner signed the following sworn statement: I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand the Florida Statutes provide for the revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to the application is true, correct, and complete. Petitioner was residing in Hollywood, Broward County, Florida, at the time he signed this statement. Petitioner filed this application with Respondent on or about June 19, 1993. In November of 1993, Petitioner was attending graduate school in Connecticut. In order to expedite the processing of his application, Petitioner asked his friend, Ms. Gendron, to search his personal records in Florida for a copy of his grade transcript from the University of Dayton. Ms. Gendron found the transcript and made a copy with the following alterations: (1) She changed the unsatisfactory grades to Bs and Cs; (2) She made corresponding changes in credit hours, quality points and grade point averages for two terms; (3) She eliminated the words "Academic Dismissal" for three terms; and (4) She eliminated the words "Readmitted to College of Arts and Sciences, Jan. 1968." After making these alterations on or about November 25, 1993, Ms. Gendron sent the transcript from Florida to Connecticut to Petitioner so he could send it to Respondent. There is no evidence that Petitioner asked Ms. Gendron to alter the transcript. However, Petitioner's testimony that he did not know about the alterations is not persuasive. He knew how Ms. Gendron felt about the bad grades and, according to Ms. Gendron's affidavit, he had the opportunity to review the transcript before he sent it to Respondent. Respondent even testified that: She (Ms. Gendron) told me she was doing it because she didn't like the look of them. She didn't like the grades. She thought that I would be doing better than that. And, we discussed this previously. I did discuss it over the years. About two years ago I discussed it with her, that what had happened, especially before May of 1993, I discussed it. The record copy of this first altered transcript appears to bear the seal of a Notary Public from Connecticut and the date "Nov. 30, 1993" typed in the lower left corner. Respondent received this transcript on or about December 7, 1993. On December 27, 1993, Ms. Gendron altered another copy of Petitioner's grade transcript from the University of Dayton. Using liquid paper and a stamp, she attempted to match the second transcript to the one she sent to Petitioner on November 25, 1993. However, there are obvious differences in the two altered transcripts. The second time she changed the words "Academic Dismissal" to "Academic Evaluation" for three terms. She also did not eliminate the words "Readmitted to College of Arts and Sciences, Jan. 1968." Ms. Gendron used a stamp to make it appear that the corrected transcript was officially approved and initialed by the University of Dayton Registrar. Ms. Gendron's affidavit states that she sent the second altered transcript directly to Respondent on December 31, 1993, and that Respondent should have received it in the first week of January, 1994. However, the alleged stamp and initial of the Registrar is dated January 5, 1994. The transcript also has the date "Jan. 5, 1994" typed in the lower left corner. Upon receipt of the second altered transcript, Respondent notified Petitioner of the differences in the documents. Petitioner asked the University of Dayton to send an official transcript directly to Respondent. On or about February 1, 1994, Respondent received an official transcript from the University of Dayton showing the failing grades for the first term of the 1967-1968 school year and the first term of the 1968-1969 school year along with the correct number of credit hours earned, quality points accumulated, and grade point average. In February of 1994, Petitioner filled out and executed a second application for a Florida teaching certificate in the field of Political Science, grades six (6) through twelve (12). On February 11, 1994, Petitioner signed the second application containing a sworn statement identical to the one set forth above in paragraph nine (9). Respondent received this application on February 15, 1994. By letter dated March 7, 1994, Respondent notified Petitioner that Professional Practices Service would review the official transcript from the university which differed from the original official transcript submitted on Petitioner's behalf. Respondent advised Petitioner that further processing of his application was pending clearance from Professional Practices Service. By letter dated June 24, 1994, Respondent informed Petitioner that his application for certification in Political Science (filed on February 15, 1994) was void and that Respondent would refund the $54 application fee. Respondent advised Petitioner that it was unnecessary to apply for certification in Political Science because that subject area was included in the broader field of Social Science. Respondent refunded the fee for the voided application by state warrant dated June 30, 1994. By Notice of Reasons dated July 12, 1994, Respondent informed Petitioner that his application for a Florida teaching certificate in the field of Social Science was denied. Petitioner worked as substitute teacher in Broward and Dade public schools in 1994 and earned good evaluations from his supervisors. He also taught Sunday School at St. Matthew Catholic Church where he serves as catechist. After receiving his B.A., Petitioner immediately began working towards a M.S. in guidance and counseling at Saint Thomas University. The record contains references from his professors emphasizing his potential as a teacher. Petitioner has completed all academic requirements to be qualified as a Social Science teacher. He has passed all required state teacher certification examinations. His application appears to be complete. Despite being otherwise qualified to hold a Florida teaching certificate, record evidence indicates that Petitioner knew the first two University of Dayton transcripts sent to Respondent incorrectly reflected his academic standing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying the Petitioner's application for a Florida certificate, such denial to be without prejudice to refile a future application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of March, 1995. SUZANNE F. HOOD, Hearing Officer 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 13th day of March, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Rejected. More of a conclusion of law than a proposed finding of fact. Reject Petitioner's assertion that he did not "willfully violate any rules and regulations of the district school board or state Board of Education." See paragraph 24. Rejected. More of a conclusion of law than a proposed finding of fact. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Rejected. See conclusions of law. Respondent's Proposed Findings of Fact Accepted in paragraph 18 of this Recommended Order (RO) Accepted in paragraphs 9 & 18 of this RO. Accepted. Implicit in paragraphs 9 & 18 of this RO. Accepted in paragraph 24 of this RO. However, both of the falsified transcripts were submitted prior to the filing of the application dated February 11, 1994. Accepted. See paragraphs 11 & 14 of this RO. Accepted. See paragraphs 11 & 14 of this RO. Accepted. See paragraphs 2, 3, & 17 of this RO. Accepted in paragraph 19 of this RO. COPIES FURNISHED: Frank O'Neil Post Office Box 661 Hollywood, FL 33022-0061 J. David Holder, Esquire 1480 North Peidmont Way Tallahassee, FL Thomas Abrams, Esq. 1377 97th St. Miami, FL 33154 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact 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.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
Findings Of Fact Tooze holds certificate number R-0434 as a Certified Public Accountant practicing in the State of Florida and held such certificate in good standing on January 1, 1974. At that time, Tooze was subject to professional certification requirements set forth in Chapter 473, Florida Statutes. The records of the Board reflect that Tooze provided no evidence of the completion of any courses or studies that would give him credits toward the reestablishment of his professional competency in the period between January 1, 1974, and April 2, 1977. On October 15, 1976, Tooze sat for an examination which was approved by the Board and given to practicing Certified Public Accountants pursuant to applicable law requiring re- establishment of professional competency. Tooze received a score of 64 out of a possible score of 100. The established passing grade for the examination is 75. Tooze received nine credit hours for the examination he took. On May 13, 1977, the Board suspended Tooze's certificate R-0434 as a Certified Public Accountant for failing to comply with requirements for the reestablishment of his professional knowledge and competency to practice public accounting. The questions to be answered in the uniform written professional examination administered to Tooze on October 15, 1976, were based upon "Current Authoritative Literature" which included Accounting Principles Board's Opinions, Accounting Research Bulletins, Statements and Interpretations of the Financial Accounting standards Board, Statements on Auditing standards, and the Laws and Rules of the Florida State Board of Accountancy. Tooze challenges sixteen of these one hundred questions on the grounds that the approved answers are incorrect and that the answer selected by Tooze is the proper choice. The questions attacked by Tooze are numbers 13, IS, 18, 51, 56, 61, 63, 67, 72, 74, 78, 80, 82, 95, 96 and 99. The title of the uniform written professional examination is "Examination of Current Authoritative Accounting and Auditing Literature and Rules of the Florida State Board of Accountancy. The approved answer to each of the questions on the examination is that which is mandated by the "Current Authoritative Literature." The examination does not purport to seek answers outside of the requirements of the Current Authoritative Literature. Each of the approved answers in the sixteen questions listed above are consistent with the demands of the Current Authoritative Literature. Each of Tooze's answers is contrary to the provisions of the Current Authoritative Literature. Accordingly, the answers selected by Tooze are not the best answers and were properly graded incorrect on his examination answer sheet.
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to' be determined deals with the propriety of the denial of certification based upon the belief on the part of the Respondent that Petitioner does not have the requisite good moral character necessary for certification. See Subsection 943.13(7), Florida Statutes.
Findings Of Fact The Sheriff's Office of Jacksonville, Duval County, Florida, had submitted an Affidavit of Certification for Petitioner Harold B. Walbey, Jr. In response to that affidavit, the Criminal Justice Standards and Training Commission issued a Statement of Denial, a copy of which may be found as Respondent's Exhibit No. 1, admitted into evidence. The basis of denial was related to the belief that Petitioner did not evidence the requisite good moral character required for certification. See Subsection 943.13(7), Florida Statutes. In particular, the denial related to a series of events leading to the revocation of Petitioner's Florida Teaching Certificate by order of the State Board of Education entered on October 12, 1979. Respondent's Exhibit No. 2 is a copy of that order of revocation together with the Recommended Order of the Hearing Officer, Division of Administrative Hearings. The revocation of the teacher's license was premised upon a conclusion of law that Petitioner had committed acts of gross immorality and moral turpitude in his relationship with junior high school female students in the school in which he taught. Those acts had sexual connotations. It was also determined in law that Respondent had lost his effectiveness as a teacher in view of the underlying circumstances. Petitioner took issue with the denial of his law enforcement certificate and requested a formal Subsection 120.57(1), Florida Statutes, hearing. The matter was then referred to the Division of Administrative Hearings and a hearing was held on October 8, 1982, in Jacksonville, Florida. On November 2, 1981, Petitioner was employed as a temporary or probationary employee of the Sheriff's Office, in Jacksonville, Duval County, Florida, in the position of Correctional Officer at the County Prison Farm and remains in that employment at this time. Duties of the Petitioner would include floor assignment, medication, food, preparation for commitment, booking, releasing and other functions. Among those other functions Petitioner transports female inmates, by motor vehicle, with no other law enforcement official or other person in attendance. These trips in which Petitioner has custody and control over female inmates are infrequent. Officials within the Duval County Sheriff's Office who presented Petitioner's Affidavit of Certification maintain a neutral posture on the question of his certification and have vouched for Petitioner to the extent necessary to elicit a final decision from Respondent on the question of certification. The chief personnel officer for the Duval County Sheriff's Office feels that the Petitioner would make a good employee if he has become sufficiently rehabilitated following the incidents which led to the revocation of his Florida Teaching Certificate. Petitioner is well accepted by his superiors in his capacity as Correctional Officer and has received acceptable performance evaluations. Petitioner has been married three (3) times and is the father of twelve (12) children, none of which reside with him. He is responsible for furnishing support to his children. Petitioner holds a BS degree from Edward Waters College and a Masters degree from Florida A & M University. He has served in the military, both in the Air Force and the Army National Guard. Walbey is now forty-five (45) years of age. Testimony from community leaders and neighbors and acquaintances of Petitioner show him to be a person deemed to be reputable and hard working and a fine neighbor. No testimony was offered related to efforts which Petitioner had made in trying to effect his rehabilitation through professional assistance on the topic of those matters which caused him to lose his teaching certificate or opportunities in which Petitioner had conducted himself with proper decorum when in the presence of young women following that disciplinary action. Petitioner did not concede the facts of those incidents leading to the revocation as a part of his presentation.
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 422775 (graduate, rank 3), which expires on June 30, 1984. She is certified to teach biology and health education at the secondary (grades 7-12) school level. She is now employed by the Duval County School Board as a teacher at Douglas Anderson Middle School. (Testimony of Cobb; Prehearing Stipulation; P-4.) In January, 1974, Respondent pleaded guilty to a misdemeanor crime: the obtaining of public assistance by fraud in violation of Section 409.325, Florida Statutes. On January 28, 1974, the County Court of Duval County adjudged her guilty and placed her on probation. (P-1.) On November 23, 1976, the State Attorney of Duval County filed a criminal Information charging Respondent with petit larceny. Essentially, he alleged that, on November 21, 1976, she took merchandise belonging to Winn-Dixie Stores, Inc., without paying for it. On November 30, 1976, she entered a plea of nolo contendere to the petit larceny charge; she was adjudged guilty by the County Court of Duval County and sentenced to pay a $50 fine and court costs. (P-2.) In July, 1978, Respondent applied for a Florida teaching certificate. Section V of the application asked: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation"? By marking the appropriate space, she answered "No". (P-3.) She executed the application before a notary public on July 14, 1978; she expressly certified that: I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. (Section 231.28 F.S.) I further certify that all information pertaining to this application is true and correct. Pursuant to her application, and in reliance upon the representation that she had never been arrested or involved in a crime, the Florida Department of Education issued her the teacher's certificate which she now holds. (Testimony of Lee; P-4.) At the time she completed her application, Respondent was aware of her criminal record and knew that she had been involved in at least one criminal offense--the 1976 offense of petit larceny. At hearing, she could not explain why she denied any past involvement in a criminal offense: Q.: [Counsel for Commissioner] : So, you knew [when you applied for a teacher's certificate] that you had been involved in a criminal history or had had an involvement with the law? A.: [Respondent]: In '76, yes. Q.: Okay, why didn't you put, "yes"? A.: I just didn't. Q.: But you . . . you knew you had been involved in a criminal offense. A.: In '76, yes. : So then why didn't you put, "yes"? A.: I just didn't. (Tr. 126.) It must be concluded that Respondent knowingly falsely represented to the Department of Education that she had no prior involvement in any criminal offense; that she misrepresented her criminal record in order to obtain a Florida teacher's certificate. (Testimony of Cobb; P-1, P-2, P-3.) Whether an applicant has ever been arrested or involved in a criminal offense is a material factor in the Department's evaluation of an application. An application may be denied if the applicant has committed acts which would justify suspension or revocation of a teaching certificate; it is likely-- although not certain--that, if the Department was aware of Respondent's past criminal record, her application would have been denied. (Testimony of Lee.) When Respondent submitted an application for employment with the Duval County School Board on July 24, 1978, she falsely answered "No" to the question: "Have you ever been arrested for any other offense other than minor traffic violations"? (Tr. 49.) She knew her answer was false 2/ . Had her criminal record been revealed, she would not have been recommended for employment. (Testimony of Epting, Cobb.) From October 7, 1978, to November 11, 1978, Respondent obtained unemployment compensation even though she was employed by the City of Jacksonville. She obtained the unemployment compensation by falsely indicating she was not employed. Consequently, a criminal Information was filed on April 29, 1980, by the State Attorney of Duval County charging her with unemployment compensation fraud. On June 4, 1980, she pleaded guilty to the charge; however, the Circuit Court of Duval County withheld adjudication, placed her on probation for one year, sentenced her to three weekends in county jail, and directed that she make complete restitution of the funds wrongfully collected. (P-6.) Respondent acknowledges that she knew her action was wrong, that she knew she was not entitled to the unemployment compensation funds. She explains that she was in financial need and behind on her house payment; she feels her actions were justified, under the circumstances, because Jacksonville (her employer) had promised that she would continue to be employed. Instead--after she had incurred long-term financial commitments--Jacksonville terminated her employment. She has now made full restitution for the wrongfully taken funds. (Testimony of Cobb.) Respondent has been an effective and satisfactory teacher during the 1980-1981 school year. Her ratings have been the highest possible; she has shown initiative and established rapport with her students. Her principal recently promoted her to chairman of the science/health department and recommended that she be reemployed for the 1981-1982 school term. (Testimony of Poppell; R-1.) Teachers in Duval County are held to a high standard of character and conduct. A teacher's involvement in crime would tend to violate those standards; parents would be unwilling to entrust the education of their children to such an individual. (Testimony of Poppell.) The Commissioner's proposed findings of fact have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking Respondent's Teacher's Certificate, No. 422775. DONE AND RECOMMENDED this 3rd day of November, 1981, in Tallahassee, Florida. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1981
Findings Of Fact The Petitioner is not a graduate of at least a four-year accredited college or university course, and has not qualified for a degree with a major in accounting. The Petitioner has not completed such courses as would constitute a major in accounting. The Petitioner has not satisfied all of the legal requirements to take the Florida examination or to receive a Reciprocal Certificate from the Respondent. The Petitioner has practiced accountancy for more than fifty years, and he holds Certified Public Accountant Certificates from the state of New York and the Commonwealth of Massachusetts. The Petitioner has also been admitted to practice before the United States Treasury Department and the United States Tax Court. The Petitioner has performed meritorious work as a Certified Public Accountant, and as also performed many important civic services.
Recommendation That the application of Philip M. Percus for a Reciprocal Certificate allowing him to practice as a Certified Public Accountant in Florida be denied. Recommended this 6th day of May, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Laurence J. Marchbanks, Esquire 301 W. Camino Gardens Boulevard Boca Raton, Florida 33432 Attorney for Petitioner James S. Quincey, Esquire P.O. Box 1090 Gainesville, Florida 32602 Attorney for Respondent Douglas N. Thompson, Jr. Executive Director Florida State Board of Accountancy Post Office Box 13475 Gainesville, Florida 32604
The Issue Whether the certificate of Respondent to practice public accounting in Florida should be revoked, annulled, withdrawn or suspended as indicated in the administrative complaint.
Findings Of Fact The parties stipulated to certain facts, as follow: That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968. That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant. That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted a CPA license by California upon completion of the necessary experience requirements in May of 1971. That the Certificate Holder attended law school at the Ohio State University from September 1970 through December 1972. In December 1972 he was awarded a Juris Doctor Degree from that institution. That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973. That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida. That in July 1973 the Certificate Holder accepted that position with McClain and Co., CPA's of Miami, Florida, which position was to begin in August 1973. That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida. That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar. That the Certificate Holder moved his family from Cincinnati, Ohio, to Fort Lauderdale, Florida, in July 1973 and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973. That the Certificate Holder completed the application for a reciprocal CPA certificate and submitted the same to the Florida State Board of Accountancy in October 1973. That in November 1973 the Certificate Holder took the Florida Bar examination in Tampa, Florida. That the Certificate Holder was admitted to the Florida Bar in December 1973 and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January 1974. That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in may 1974. That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974. That in August 1974 the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida. That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder. That since February 1975 the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and That the Certificate Holder has been a resident of and domiciled in the State of Florida from August 1973 thru and including the date of the Stipulation." (Exhibit 1). The parties stipulated at the hearing that the respondent joined the Florida Institute of Certified Practicing Accountants on Jun 17, 1974, as an active member, and changed his status to that of a non-practicing member of the institute on August 22, 1975. Respondent testified at the hearing that his purpose in attending law school in 1970 and eventually obtaining a law degree was predicated upon his desire to advance more rapidly in the tax department of an accounting firm. He had noted that most of the accountants doing tax work in accounting firms generally held law degrees and received higher salaries. Since he was interested in taxation, he did not obtain a master's degree in accounting which involves primarily audit work or preparation of financial statements. Respondent did tax work for an accounting firm in Cincinnati, Ohio, after graduation from law school in 1972 and secured a similar position with an accounting firm in Florida, McClain and Company, in the summer of 1973. He applied for admission to the Florida Bar the same summer because he believed his failure to do so might cause an adverse reaction by prospective employers in the accounting field. Prior to the Florida move, respondent did not seek employment with a law firm because he felt that the opportunities were much better in public accounting and he enjoyed that type of work. After passing the Florida Bar examination in October 1973, respondent did not seek employment in a law firm because he was well satisfied with his accounting position. After he was involuntarily discharged from his job with McClain and Company in May 1974, he sought employment with both accountant firms and law firms in the tax area. Although he began a graduate law program in taxation in January 1974, his purpose was to acquire greater knowledge and ability concerning tax matters for his work in accounting. Respondent testified that at the time he had applied for the Florida reciprocal license as a certified public accountant, he intended to practice public accounting in the State of Florida on a full-time year-round basis. He conceded that he has not been engaged in the full-time practice of accountancy since his termination with the accounting firm in the spring of 1974. (Testimony of Respondent, Exhibits 2, 3). On December 30, 1975, respondent advised the petitioner by means of a "CPA information card" that he was not engaged in the practice of public accounting. By letter of June 21, 1976, petitioner requested respondent to return his certificate along with a stipulation and waiver of hearing. The practice of petitioner in such cases is to request that a registrant waive his right to a hearing on the question of whether or not his certificate should be revoked on the ground that he is not engaged in the full-time year-round practice of public accounting in Florida. In the event the registrant does not agree to waive such a hearing, petitioner normally proceeds to file an administrative complaint seeking revocation of the certificate. (Testimony of Respondent, Composite Exhibit 4).
Recommendation That petitioner's administrative complaint against respondent Thomas F. Luken be dismissed. DONE AND ENTERED this 16th day of November 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November 1977. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 David Hoines, Esquire First National Bank Building Fort Lauderdale, Florida 33394
