Cenac v. Florida State Bd. of Accountancy

• Decision Date: 29 May 1981
• Docket Number: OO-433,Nos. OO-68,s. OO-68
• Citation: 399 So.2d 1013
• Parties: Dwight S. CENAC, Appellant, v. FLORIDA STATE BOARD OF ACCOUNTANCY, Appellee.
• Court: Florida District Court of Appeals

Page 1013

399 So.2d 1013

Dwight S. CENAC, Appellant, v. FLORIDA STATE BOARD OF ACCOUNTANCY, Appellee.

Nos. OO-68, OO-433.

District Court of Appeal of Florida, First District.

May 29, 1981.

A. August Quesada, Jr. and Frederick R. Brock of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellant.

James S. Quincey and Samuel Hankin of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.

PER CURIAM.

Cenac appeals a final order of the Florida State Board of Accountancy (the Board) revoking his CPA license and an order of the hearing officer denying him relief in a related rule challenge proceeding. We affirm in part and reverse in part.

The Board rescinded Cenac's license because while holding a CPA license and practicing public accounting, he improperly offered services for a contingent fee ¹, directly and indirectly solicited public accounting engagements ², encroached on other practitioners ³, rendered services of a type performed by other professionals without complying with Chapters 1-8 of Chapter 21A, ⁴ and practiced without reestablishing competency. ⁵ In Point II A, which we find appropriate to discuss first, Cenac argues that the Board erroneously rejected some of the hearing officer's findings of fact. We agree because there was competent substantial evidence to support those findings. § 120.57(1)(b)9., Fla.Stat. (Supp.1978).

THE FACTS

We paraphrase the hearing officer's findings of fact as follows:

After college, Cenac worked two years for an accounting firm, receiving his certificate in 1973. Blue Cross of Florida employed him from 1973 until 1977 when a health care provider in Puerto Rico hired him to establish procedures to improve Medicare and Medicaid reimbursement. Cenac's understanding of Medicare regulations, acquired while working at Blue Cross, coupled with his experience in Puerto Rico, convinced him that many health care providers needed special consulting concerning their financial record keeping. Thus, in 1977, Cenac formed Health Care Management Consulting Inc. (HCMC). He sent a "proposal" to health care providers, which informed them of HCMC's services, clientele, and fee arrangement.

At this time Cenac notified the Board that he was no longer performing public accounting and requested an exemption from reestablishing his competency. Accordingly, his CPA certificate became inoperative. See § 473.111(9), Fla.Stat. (1977), permitting a CPA certificate to be marked inoperative if the CPA is not practicing public accounting and exempting the certificate holder from reestablishing competency for such period.

Two other HCMC consultants perform services similar to those performed by Cenac. Neither is a CPA and both obtained their special expertise while working in the intermediary field between the government and the health care provider.

HCMC provides specialized services not provided by public accountants such as setting up books and records for health care providers, preparing cost reports, providing assistance in setting rates, and providing general familiarity with Medicare regulations. Many of HCMC's services, inasmuch as they involve financial records, are the Cenac does not hold himself out as a CPA. Although CPA certificates hang on his office wall, no clients visit the office. Cenac, by submitting the HCMC proposal to health care providers, is both advertising and soliciting business. HCMC has also obtained business previously performed by Florida practitioners. Finally, the proposal offers services on a contingent fee basis, i. e., a percentage of the additional Medicare funds obtained as a result of HCMC's services.

same type services provided by Florida practitioners, that is, CPAs practicing public accounting in Florida.

No audits unrelated to Medicare or Medicaid are performed, and financial statements prepared by HCMC do not refer to generally accepted accounting principles and generally accepted auditing standards, nor do they purport to express or disclaim an opinion as to the fairness of the presentation. The other employees of HCMC are not in violation of Chapter 473 because they are not certified.

THE BOARD'S REJECTION OF CERTAIN FACTS

Section 120.57(1)(b)9., Fla.Stat. (Supp.1978) limits the authority of an agency to reject the hearing officer's findings of fact as follows:

The agency in its final order may reject or modify the conclusions of law and interpretation of administration rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. (Emphasis added.)

With this in mind, we examine the Board's determination that Cenac was indeed holding himself out as a CPA. Although certificates were hung on the office wall, this is only prima facie evidence of holding out. § 473.22, Fla.Stat. (1977). Obviously, the hearing officer believed Cenac's testimony that no clients visited the office and contrary to the Board's assertion, there is no evidence he told people he was a CPA. At best, Cenac admitted that if asked whether or not he was a CPA, he would answer he was "nonpracticing." Such evidence is insufficient to support the Board's finding that there was no competent substantial evidence to support the hearing officer's finding that Cenac was not holding himself out as a CPA. ⁶

The Board also rejected the finding that Cenac and other HCMC employees gained their special expertise while working in the intermediary field, stating that the evidence supporting the finding was hearsay. However, Cenac and another HCMC employee testified they had obtained most of their experience while working with Blue Cross. Therefore, this finding was also erroneously rejected.

Finally, the Board rejected the finding that many of HCMC's services were services performed by certified public accounting firms. Instead, the Board found that all services performed by HCMC were services performed by CPA firms. However, the evidence on this issue was somewhat contradictory, with Cenac listing certain skills that CPA firms would not do, but at the same time admitting that he was aware of some firms that had purported to do the same work. Another employee testified that HCMC uses skills other than normal accounting and auditing skills and he knew of no CPA firms doing all of the same work. Therefore, the Board's conclusion that both witnesses indicated that "all" services performed by HCMC were services The hearing officer in an administrative proceeding is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence. David Clark and Assoc., Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980). After considering the above, we conclude that: the factual issues surrounding the order are susceptible of ordinary methods of proof, the Board does not claim special insight into any of the matters, and there is competent substantial evidence in the record to support the findings of the hearing officer. ⁷ See Samson v. Bureau of Community Med. Fac., 363 So.2d 412, 415-416 (Fla. 1st DCA 1978); Catholic Social Services v. Dept. of Commerce, 365 So.2d 427 (Fla. 1st DCA 1978); McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 574, 579 (Fla. 1st DCA 1977).

performed by Florida CPA firms, is incorrect.

CONCLUSIONS OF LAW

Whether Cenac is guilty of violating numerous provisions of Chapter 473 hinges upon whether Cenac was practicing "public accounting" under the facts we have framed above. This issue involves Points III A and III B of Cenac's brief, which urge that Cenac was not practicing public accounting, not holding out, and therefore, not in violation of law. Chapter 473 provides for two different applications of the term "public accounting." Section 473.011(5) states:

(5) Whenever the term "public accounting" is used in this chapter, it shall be deemed and construed to mean:

(a) 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

(b) 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:

1. The keeping of books of account and related accounting records, including payroll records, and preparing trial balances;

2. The preparation of financial statements and submission thereof to others, if such statements are issued without certificate of expression or disclaimer of opinion as to the fairness of the representations shown therein and do not purport to result from an audit or examination;

4. The rendition of other management services.

Literally read, the statute indicates that if Cenac was a "Florida practitioner" under (5)(a), rather than "any other person" under (5)(b), then he was also practicing public accounting because he unquestionably performed accounting and management services. Notably, (5)(a) refers to all such services.

Was Cenac a "Florida practitioner?" Section 473.011(2) defines "Florida practitioner" to mean "a certified public accountant ... engaged in the practice of public accounting in Florida.'' In turn, a CPA is "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. § 473.011(1), Fla.Stat. (1977). Thus, again reading the statutes literally, it appears that Cenac is a CPA because he holds a CPA certificate, albeit inoperative while he is not practicing public...