The 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 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. "[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 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. 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 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. 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.
The Issue Whether Petitioner's "change of status" application should be denied for the reasons set forth in the Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner has an undergraduate and master's degree in civil engineering from the Georgia Institute of Technology (received in 1962 and 1964, respectively) and a law degree from Emory University (received in 1980). In 1968, Petitioner went into the consulting business, and he has had his own business ever since. Since 1968, Petitioner has been licensed as a professional engineer, at one time or another, in approximately 20 different states, including Florida. He has held his Florida license since 1970. The other states in which he is currently licensed are Georgia, Alabama, New York, and Maryland. Petitioner is licensed to practice law in Georgia, but is on inactive status. Petitioner has been licensed as a real estate broker in Florida since 2001 or 2002. Petitioner has been certified as a general contractor in Florida since 1980. He was the qualifier for McKinney Drilling Company from 1980 until 1994. Since 1994, he has been the qualifier for Pressure Concrete, Inc. (Pressure), which approximately a year ago was purchased by Proshot Concrete, Inc. (Proshot). Petitioner has never received any discipline in connection with any of the professional licenses he has held over the years, including the certification allowing him to engage in general contracting in Florida; nor does he have any criminal record. Petitioner has not undertaken any construction or consulting project that has resulted in a lawsuit, judgment, or lien being filed. Petitioner has not been involved in any project where there has been a default triggering a claim against a payment or performance bond. All of the vendors and suppliers he has used on construction projects have been paid. Petitioner has never filed for bankruptcy. There are no lawsuits now pending against Petitioner. In or around September 2006, Petitioner completed and submitted an application to the Board seeking a "change of status" in his certification to enable him (as a general contractor) to qualify Proshot instead of Pressure. Petitioner used a Board-generated form, DBPR CILB 4363-Change of Status Application From One Business Entity to Another (Form), to apply for such a "change of status." The "Financial Responsibility" section of the Form contained the following questions and accompanying instructions: NOTE: If you answer "Yes" to any of the questions below, you must provide an explanation on DBPR 0060-General Explanatory Description form and attach legal documentation, i.e., satisfaction of lien, judgment, payment schedule, etc. If you have been convicted of a felony, you must submit proof of reinstatement of civil rights. The following persons must answer the financial responsibility questionnaire: Qualifying Agent All Owners/Partners Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an officer or an authorized representative ever: Undertaken construction contracts or work that a third party, such as a bonding or surety company, completed or made financial settlements? Had claims or lawsuits filed for unpaid past-due bills by your creditors as a result of construction operations? Undertaken construction contracts or work which resulted in liens, suits, or judgments being filed? (If yes, you must attach a copy of Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Had a lien filed against you by the U.S. Internal Revenue Service or Florida Corporate Tax Division? Made an assignment of assets in settlement of construction obligations for less than the debts outstanding? Been charged with or convicted of acting as a contractor without a license, or, if licensed as a contractor in this or any other state, been subject to any disciplinary action by a state, county, or municipality? (If yes, you must attach a copy of any state, county, municipal or out- of-state disciplinary order or judgment.) Filed for or been discharged in bankruptcy within the past five years? (If "yes," you must attach a copy of the Discharge Order, Order Confirming Plan, or if a Corporate Chapter 7 case, a copy of the Notice of Commencement.) Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction? Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Petitioner answered "No" to all of these questions, believing, in good faith, that such information was accurate. The final page of the Form contained the following "Attest Statement," which Respondent signed: I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought. I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. As part of the application process, Petitioner made the necessary arrangements with Advantage Information Services, LLC (Advantage) to directly provide the Board with a credit report. On or about October 26, 2006, Advantage sent the Board a two-page Transunion credit report (Transunion Report) containing Petitioner's "credit profile," along with a one-page report of the results of a "check[]" of public records at the "local, statewide, and national level" (Records Check Report). The Transunion Report revealed a federal tax lien in the amount of $35,100.00 that had been filed against Petitioner in 1997 for unpaid personal income taxes. Petitioner was aware of this lien at the time he filled out the Form, but did not report it in response to Question 4 of the "Financial Responsibility" section because he did not understand the question to ask about liens such as this one which were unrelated to his business activities. The Internal Revenue Service is withholding 15% of Petitioner's monthly Social Security benefit and applying it to reduce the amount Petitioner owes for his unpaid personal federal income taxes. The Records Check Report read as follows: Public records have been checked on a local, statewide, and national level and are incorporated within the report. Additional records are as follows: Cheatham Register of Deeds, TN - Federal Tax Lien Release, 01/11/2005, Case #74147 - Book/Page 131/552 - $30,908.00 - Not Paid. Plaintiff: IRS Walton County Superior Court GA - County Tax Lien, 03/12/1998, $387.00 - Not Paid. Case Number - B3P253C, Book/Page - 3/253 Plaintiff: County Tax Assessor Dekalb County State Court, GA - Civil Judgment, 05/01/1991, $49,283.00 - Not Paid. Case Number - 814497 Plaintiff: Bank South The 1998 Walton County Tax lien noted in the Records Check Report concerned an assessment made on tangible personal property in the form of an airplane owned, not by Petitioner, but by a corporation of which he was the president. The lien did not arise out of any activities in which Petitioner was engaged as a general contractor. The 1991 Dekalb County civil judgment noted in the Records Check Report required Petitioner to repay a bank loan Petitioner had co-signed for a friend. It too had nothing to do with his activities as a general contractor. It was only after the Board had provided Petitioner with a copy of the Records Check Report that Petitioner first became aware of the existence of the 1998 Walton County Tax lien and the 1991 Dekalb County civil judgment.2 As noted above, on April 18, 2007, the Board issued its Notice of Intent to Deny Petitioner's "change of status" application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board find Petitioner qualified for the "change of status" for which he has applied. DONE AND ENTERED this 1st day of November, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2007.
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 The issue is whether the examination, its administration, or its grading were arbitrary or capricious.
Findings Of Fact Su-Jung Shiuey sat for the acupuncture licensure examination on July 18 through 20, 1986, in Orlando, Florida. The examination included a requirement for candidates to demonstrate practical clinical skills including sanitation, needling technique, and point location. A passing score of 70 on the clinical practical portion of the examination is required of candidates. Su-Jung Shiuey failed to locate four points in the point location portion of the examination. See Respondent's exhibits 3 and 4. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Su-Jung Shiuey failed to demonstrate proper needling techniques. See Respondent's exhibits 2 and 3. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Each of the examiners was a licensed acupuncturist in Florida. Each of the examiners worked with a co-examiner, and all examiners are required to score candidates independently. Each of the examiners' grade sheets for these two portions of the examination made the same findings and similar observations. Su-Jung Shiuey received 66 points on the clinical practical portion of the examination and was denied licensure. Su-Jung Shiuey presented no independent testimony or evidence to discredit the qualifications of Respondent's witnesses or evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Dr. Su-Jung Shiuey's request for increased score, or reexamination without fee, should be DENIED. DONE AND ORDERED this 9th day of January, 1987, in Tallahassee, Florida. STEPHEN F. DEAN 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 9th day of January, 1987. COPIES FURNISHED: Dr. Su-Jung Shiuey (Petitioner's husband) 331 Bloomfield Avenue Nutley, New Jersey 07110 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Leo Y. Lewis, from 1969 to date had been employed by the State of Florida as Internal Audit Coordinator for the Department of Health and Rehabilitative Services. Respondent applied for and was issued a reciprocal certificate by the State Board of Accountancy on January 28, 1972. The reciprocal certificate was issued under the provisions of Florida Statutes, Section 473.201. 473.201 Certificates granted to holders from other states Upon application, the board shall issue a reciprocal certificate to the holder of a valid, unrevoked certificate issued by, or under the authority of, another state or political subdivision of the United States only if: The original certificate was secured as the result of a written examination which in the judgment of the board was the equivalent of the examination given by the board at the time the applicant passed such written examination; provided, however, that if such written exami- nation did not include the subject of ethics the application shall not be denied for that reason. In any event, the board shall require all applicants to take and pass the same current open book examination in ethics given to applicants for the written examination in the state before issuance of a reciprocal certificate; The applicant meets all the requirements in effect, at the time of the application, for applicants to take the Florida examination; The applicant is a resident of and domiciled in the state; The applicant intends to enter into the full-time, year-round practice of public accounting in the state; and The board is otherwise fully satisifed as to the moral and technical fitness of applicant." The Board now seeks to revoke the reciprocal certificate issued to Respondent for failure to comply with Section 473.201(2), Florida Statutes, "(2) Failure of the holder of a certificate issued under this section to be domiciled in and practice public accounting on a substantially full-time basis in the state for a continuous period of three years immediately after issuance of much certificate shall be prima facie evidence of the lack of the requisite intent and sufficient grounds for revocation of the reciprocal certificate issued by the board.", contending that Respondent has not been practicing public accounting for the three years immediately subsequent to the issuance of his certificate. There was no contention by the Board in its original revocation procedures that the Respondent has failed to meet all of the requirements of Section 473.201(1) and (2), Florida Statute, with the exception of the contention that Respondent has not practiced "public accountancy". At the hearing and in the Memorandum of Law there is an argument by the Petitioner that the Respondent did not actually intend to practice public accounting at the time that he received a reciprocal certificate. There is no showing that any fraud was involved and the grounds upon which the motion for revocation of Respondent's license is on the ground that Mr. Lewis did not engage in the practice of public accounting on substantially full-time basis for a period of three years after issuance of his reciprocal certificate. His intent at the time he received his reciprocal certificate is not necessary to the determination of the issue at hand. Petitioner contends: That Respondent is not in the practice of public accounting; That Section 473.08(2)(c) applies only to the Auditor General and tlie Chief Auditor of the Public Service Commission and that Section 473.08(2)(c), infra, is an exception to the general requirement that persons who have taken and passed an examination and become CPA's must have one year of public accounting experience or equivalent education in order to obtain their CPA certificates; and That the exception is not a recognition that either the Auditor General or the Chief Auditor of the Public Service Cotmission is engaged in the practice of public accounting. Respondent contends: That he is in fact a Florida practitioner engaged in the practice of public accounting; That the legislature and the Board have recognized that works similar to that which the Respondent performs constitutes the practice of public accounting. Said statute as passed by the legislature is Section 473.08, Florida Statutes. "473.08 Qualifications of applicant for examination; certificates to successful examinees; standards A person who qualifies to take such examination pursuant to provisions of subsection (1) and who takes and passes such examination shall receive a certificate as a certified public accountant issued by the board and shall be permitted to practice public accounting in this state if he:... Shall have completed one year of employment in the office of a Florida practitioner or an out-of-state practitioner or shall have successfully completed an additional one year accounting course at an accredited college or university. However: Any person employed as an accountant in the accounting department of the Florida public service commission who is qualified to take an examination for the purpose of determining whether or not such person shall be permitted to practice in this state as a certified public accountant, and who takes and passes such examination, shall be entitled to receive a certificate under the provisions of authorizing practice in this state as a certified public accountant upon completion of one year of accounting work for said commission under the supervision and direction of a certified public accountant serving as director of commission's accounting department. Any person employed as an accountant or post auditor on the staff of the auditor general who is qualified to take an examination for the purpose of determining whether or not such person shall be permitted to practice in this state as a certified public accountant, and who takes and passes such examination, shall be entitled to receive a certificate, under the provisions of this authorizing such person to practice in this state as a certified public accountant upon the completion of one year of experience as an accountant or post auditor under the supervision and direction of a certified public accountant serving as auditor general. Proof of compliance with the provisions of this introductory paragraph of this subsection shall be established in such form as is prescribed by the board;. The Florida Statutes do not clearly define the term "public accounting", but the definitions in Section 473.011 are helpful. "473.011 Definitions of terms used in chapter whenever the terms `certified public or public accountant are used in this chapter, except as used in subsection (3), they shall be deemed and construed to mean a person holding a certificate to practice as such, issued by the state under this chapter, or any law of the state heretofore in force and effect. [(3) not applicable] whenever the term `Florida practitioner' is used in this chapter it shall be deemed and construed to mean a certified public accountant or public accountant, as defined in subsection (1), engaged in the practice of public accounting in Florida, whether as an individual, a partner or employee of a partner- ship, or a stockholder, officer, or employee of a professional corporation. It shall also be deemed and construed to mean a partnership or professional corporation of Florida practitioners. (5) Thenever the term `public accounting is used in this chapter, it shall be deemed and construed to mean: All services offered to or performed for the public by a Florida practitioner or an out of state practitioner involving the use of accounting skills, specifically including, but not limited to, management services, and All services offered to or performed for the public by any other person, acting as an individual, as a partner or employee of a partnership, as a stockholder, officer or employee of a professional corporation, or as an officer or employee of any other corporation, involving the use of accounting skills, except as follows: (not applicable) Under the definition section of Rule 21A-1.10 of the Florida Administrative Code, practice of or practicing public accounting is defined as: "Practice of, or practicing public accounting. 'Practice of, or practicing public accounting' shall be deemed and construed to mean offering to perform, performing, or holding oneself out as being qualified to perform, those services described in Section 473.011(5), F.S." [supra] as: Rule 21A-1.11 of the Florida Administrative Code defines practitioner "'Practitioner' shall be defined as either a Florida practitioner (as defined in Section 473.011(2), F.S.), or an out of-state practitioner (as defined in Section 473.011(3), F.S.), engaged in the practice of public accounting in Florida under a special permit." Black's Law Dictionary, Revised Fourth Edition, defines public as: "PUBLIC, adj. Pertaining to a state, nation, or community; proceeding from, relating to, or affecting the whole body of people or an entire community. Open to all; notorious. Common to all or many; general; open to common use. Morgan v. Cree, 46 Vt. 786, 14 Am.Rep. 640; Crane v. Waters, C.C.Mass., 10 F. 621. Belonging to the people at large; relating to or affecting the whole people of a state, nation, or community; not limited or restricted to any particular class of the community. People v. Powell, 280 Mich. 699, 274 N.W. 372, 373, 111 A.L.R. 721." Black's Law Dictionary, Revised Fourth Edition, defines accounting as: "ACCOUNTING. An act or system of making up or settling accounts; a statement of account, or a debit and credit in financial transactions. Kansas City v. Burns, 137 Kan. 905, 22 P.2d 444." The Hearing Officer finds: That the work the Respondent does in his position as Internal Audit Coordinator for the Department of Health and Rehabilitative Services involves the use of accounting skills and includes management services and that he is a Florida practitioner as defined in Chapter 473, Florida Statutes, and in Chapter 21A-I, Florida Administrative Code. Petitioner contends that the Respondent is a state employee and therefore cannot be independent of his client However, the evidence shows that much of the work performed by Respondent and his staff are for agencies and organizations outside the Department of Health and Rehabilitative Services which employs Respondent. There is no employee-employer relationship between Respondent and these organizations. Further, no showing has been made that the employer, the Department of Health and Rehabilitative Services, attempts to or has ever directed the work of Respondent or in any way exercised control over the audits of Respondent. Respondent is in the practice of public accounting in his capacity as Internal Audit Coordinator.
Recommendation Dismiss the petition of the State Board of Accountancy. DONE and ORDERED this 24th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1976.
The Issue Whether Petitioner is entitled to additional credit for his responses to Questions 23 and 27 of the Contract Administration section of the General Contractor licensure examination administered in July 1996, and, if so, whether the additional credit would give him a passing grade. Whether Petitioner is entitled to additional credit for his responses to Questions 11, 23, and 35 of the Contract Administration section of the General Contractor licensure examination administered in April 1997 and, if so, whether the additional credit would give him a passing grade.
Findings Of Fact Petitioner took the Contract Administration section of the General Contractor’s licensure examination in July 1996 and in April 1997. Between the two exams, Petitioner passed all sections of the examination except the Contract Administration section. Petitioner’s score on the Contract Administration section of the July 1996 examination, as graded by Respondent’s Bureau of Testing, was 65. His score on the Contract Administration section of the April 1997 examination was 67.5. For both examinations, there were 40 questions on the Contract Administration section. A candidate had to achieve a score of 70 to pass that section of the examination. Because each question was equally weighted, a candidate would have to correctly answer 28 questions to earn the passing score. All questions challenged by Petitioner were multiple- choice questions where the candidate was instructed to give the best answer from four possible choices. Prior to the examinations, the candidates were given a list of approved reference materials. The candidates were permitted to refer to those reference materials while taking the examinations. Respondent’s score of 65 on the July 1996 examination was based on the Bureau of Testing’s determination that Petitioner correctly answered 26 of the 40 questions. To earn a passing grade on the Contract Administration section of the July 1996 examination, Petitioner would have to receive credit for correctly answering two additional questions. His score of 67.5 on the April 1997 was based on the determination that he correctly answered 27 of the 40 questions. To earn a passing grade on the Contract Administration section of the April 1997 examination, Petitioner would have to receive credit for correctly answering one additional question. QUESTION 23 OF THE JULY 1996 EXAM The correct answer for Question 23 of the July examination is choice “D.” Of the four possible responses, choice “D” is the best answer to the question. Petitioner’s answer to this question was choice “A.” Petitioner did not receive credit for his response to this question because he did not select the best answer. The answer selected by Petitioner would not be the most accurate and cost-effective because the methodology he selected would not detect errors made by the first person performing the computations. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the July 1996 exam. QUESTION 27 OF THE JULY 1996 EXAM The correct answer for Question 27 of the July examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “B.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 27 of the July 1996 exam. QUESTION 11 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam. QUESTION 23 OF THE APRIL 1997 EXAM The best answer for Question 23 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “A.” While there is some support in the reference material for Petitioner's answer, the greater weight of the evidence established that his choice was not the best answer. Petitioner did not receive credit for his response to this question because he did not select the best answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the April 1997 exam. QUESTION 35 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses the challenges brought by Petitioner to Questions 23 and 27 on the July 1996 exam and to Questions 11, 23, and 35 of the April 1997 exam. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Kenneth Marshall 624 Southwest 11th Court Fort Lauderdale, Florida 33315 John Preston Seiler, Esquire 2900 East Oakland Park Boulevard, No. 200 Fort Lauderdale, Florida 33306 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact Respondent, Paul E. Flasher, II, was certified as a certified public accountant by the Florida Board of Accountancy under License No. 4739 in 1975. His license reverted to inactive status on January 1, 1982, for failure to meet continuing professional educational requirements. On May 31, 1979, Respondent was charged under a direct information for fraud license (seven counts) and grand theft in the second degree (seven counts) in the Circuit Court for the Thirteenth Judicial Circuit of the State of Florida, alleging his improper taking or using various sums of cash from the Terrace Village Apartments Partnership by which he was employed during the period July 5, 1977, through October 10, 1978. On February 15, 1980, the Direct Information was amended in an action which dismissed the first seven counts (grand larceny) and recharged the seven counts of grand theft in the second degree. Respondent was tried on the remaining seven counts and convicted of four separate counts, which alleged grand theft in the second degree on February 3, 1978; April 10, 1978; June 13, 1978; and October 10, 1978, respectively. He was thereafter sentenced to be imprisoned for the term of five years on each of the four counts of which he was convicted, each count to run concurrently. The conviction was affirmed on appeal to the District Court of Appeal for the Second District in an opinion filed November 25, 1981. A petition for review to the Supreme Court of Florida was dismissed on January 27, 1982. The crimes of which the Respondent was convicted arose out of his use of partnership monies for his personal purposes. Mr. Flasher indicated that the partnership monies he utilized by purchasing items for his personal use and then writing a partnership check in payment were in fact owed to him as payment for his managerial services and that he paid by partnership check to take advantage of the partnership quantity discounts. Mr. Flasher also contended that at the times he converted the monies in question, he was acting as a manager/partner in the organization, and not in the capacity as a certified public accountant. The documents to support this managerial relationship were never drafted, nor was the partnership ever legally constituted, however, Therefore, his relationship to the other principals was not as a partner, but as an employee, the primary entree to which was his certified public accountant status for his former client, Mr. Ed Roseman. On February 4, 1982, Respondent offered to make restitution in the amount of $1,469.74.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of repeated violations of the statutes cited in the Administrative Complaint. That Respondent's license to practice as a certified public accountant be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of February, 1983. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1983.
Conclusions THIS CAUSE came on before the undersigned Treasurer of the State, of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On February 26, 1996, the Department of Insurance (the “Department” ) issued a First Amended Denial Letter (the “Denial Letter”), which denied Petitioner's application for licensure as a limited surety agent. The Denial Letter alleged that: (1) Petitioner had been found guilty of conspiracy, arson, and mail fraud; (2) Petitioner's prior limited surety license had been revoked; and, (2) Petitioner had not met the pre-licensing educational requirements. Petitioner timely filed a request for a formal proceeding pursuant to section 120.57(1), Florida Stazures. Pursuant to notice, the matter was heard before Carolyn 5. Ne Holifield, Administrative Law Judge, Division of Administrative Hearings, on December 16, 1997. After consideration of the record and argument presented at hearing, the Administrative Law Judge issued a Recommended Order on March 2, 1998. (Attached as Exhibit A). The Administrative Law Judge recommended that the Department enter a Final Order denying the Petitioner's application for a limited surety agent's license. On March 10, 1998, Respondent timely filed exceptions to the Recommended Order. Respondent excepted to the Conclusions of Law. Each exception is addressed below. RULINGS ON PETITIONER'S EXCEPTIONS 1. Respondent excepts to paragraph 20 of the Administrative Law Judge’s Conclusions of Law. In paragraph 20 a scrivener’s error inaccurately references “above in paragraph 20”, which should read “above in paragraph 19”. Accordingly the first exception is accepted and Conclusion of Law paragraph 20 is modified as follows: In 1995, when Petitioner applied for relicensure, in addition to the licensure requirement cited above in paragraph 19, applicants were required to have completed: (1) a basic certificate course in the he criminal justice system, and (2) a 2 correspondence course for bail bondsmen approved by the Department. See, Section 648.34(2) (d), Florida Statutes (1995). Petitioner’s alleged failure to meet these educational requirements was one of the reasons the Department denied his application for relicensure. . 2. In paragraph 21, Respondent agreed with the Administrative Law Judge’s finding that the evidence established that Petitioner did not meet the educational requirements for licensure as a limited surety agent. Respondent excepts the Administrative Law Judge’s finding, “that fact. is of no import” and her summary of the law, relating to the changes in Section 648.34(2), Florida Statutes, which became effective on July 1, 1996. It is well settled that a constitutional right to pursue a lawful business or occupation is not a fundamental right, but a privilege. Dept. of Banking and Finance v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996); Polakoff v. Dept. of Insurance and Treasurer, 551 So.2d 1223, 1225 (Fla. 1st DCA 1989). Therefore, Petitioner did not have a vested right in his limited surety agent license. It is also well established, that a person without a vested right in their license is subject to further (vs) regulation or even revocation. See, Davidson v. City of Coral Gables, (Fla. 3rd DCA 1960). On February 25, 1995, Petitioner submitted an application for a limited surety agent license to the Department. At that time, the legislative requirements, in Section 648.34, Florida Statutes, required that: (2) To qualify as a bail bondsman, it must - affirmatively appear at the time of application and throughout the period of licensure that: Kk (d) Within 4 years prior to the date of his application, the applicant has successfully completed a basic certification course in the criminal justice system, consisting of not less than 80 hours and has successfully completed a correspondence course for bail bondsmen approved by the department. Section 648.34(2) (dad), Florida Statutes (1995). At the time he applied, Petitioner had not satisfied the educational requirements mandated in Section 648.34(2) (d), Florida Statutes (1995). It is of no import that the requirements of Section 648.34(2), Florida Statutes changed after Petitioner applied for a limited surety agent license. Therefore, Petitioner’s failure to meet the educational requirements, at the time he applied, was also an appropriate condition to properly deny his application for relicensure. Moreover, Petitioner’s argument that the Department should apply the educational requirements that existed in 1989 is without merit. Petitioner first reapplied in late 1989 and the Department notified him by letter that he was not eligible to reapply pursuant to Section 648.49(2), Florida Statutes. At that time, Petitioner had the right to challenge the Department’s interpretation of Section 648.49(2), Florida Statutes. A party may waive any rights to which they are legally entitled, by actions or conduct warranting an inference that a known right has been relinquished. Torres v. K-Site 500 Assoc., 632 So.2d 110, 112 (Fla. 3rd DCA 1994). Waiver occurs when “one in pessession of any right whether conferred by law or by contract forbears the doing of something inconsistently with the existence of the right .. . and is precluded from claiming anything by reason of it afterwards.” County of Brevard v. Miorelli Engineering, Inc., 1997 WL 664779 (Fla. 1997). Petitioner waived his right to challenge the Department’s interpretation of Section 648.49, Plorida Statutes by not seeking review of the Department's decision. Therefore, when Petitioner reapplied for a limited surety agent license on February 25, 1995, he had to satisfy the licensure requirements at the time of he submitted his application. Accordingly, the second exception is accepted and Conclusion of Law paragraph 21 is modified as follows: The evidence established that Petitioner did not meet the aforementioned educational requirements. Therefore, the Department cf Insurance properly denied Petitioner’s application for a limited surety agent license due to his failure meet these educational requirements. ORDERED: 1. The Findings of Fact of the Administrative Law Judge are adopted in full as the Department's Findings of Fact. 2. The Conclusions of Law of the Administrative Law Judge are adopted, as modified, as the Department's Conclusions of Law. 3. That the Hearing Officer's recommendation derlying JOHN D. FISHER's application for licensure as a limited surety agent is approved and accepted as being the appropriate disposition of this case. ACCORDINGLY, Petitioner, JOHN D. FISHER’s, application for licensure as a limited surety agent is DENIED.
Conclusions The Office of Financial Regulation ("Office") issued a denial of Petitioner’s application to become licensed as an “associated person”. Petitioner in turn filed a Petition for Administrative Hearing, which the Office referred to the Division of Administrative Hearings ("DOAH"). The assigned Administrative Law Judge ("ALI") held a formal administrative hearing, and entered a Recommended Order thereon. That Recommended Order of November 17, 2604, is attached to this Final Order, and incorporated herein by reference.
