Florida Accountants Ass'n v. Dandelake

• Decision Date: 31 May 1957
• Parties: FLORIDA ACCOUNTANTS ASSOCIATION, a non-profit Florida corporation, Howard Curry, John H. Barclay, Jr., A. E. Roache, Joseph Fiorella and Aldor Dragon, Appellants, v. George W. DANDELAKE, P. W. Fisher, Charles C. Colley, Jr., Robert M. Morgan, and H. M. Turnburke, as members of and constituting the State Board of Accountancy of the State of Florida, Appellees.
• Court: Florida Supreme Court

Page 323

98 So.2d 323

70 A.L.R.2d 425

FLORIDA ACCOUNTANTS ASSOCIATION, a non-profit Florida corporation, Howard Curry, John H. Barclay, Jr., A. E. Roache, Joseph Fiorella and Aldor Dragon, Appellants, v. George W. DANDELAKE, P. W. Fisher, Charles C. Colley, Jr., Robert M. Morgan, and H. M. Turnburke, as members of and constituting the State Board of Accountancy of the State of Florida, Appellees.

Supreme Court of Florida, En Banc.

May 31, 1957.

Rehearing Denied Dec. 9, 1957.

Jepeway & Dauber and Redfearn & Ferrell, Miami, for appellants.

Ward & Ward, Miami, for appellees.

ROBERTS, Justice.

This suit was brought by the appellees, as members of the State Board of Accountancy (the 'State Board' hereafter), to enjoin certain actions on the part of the officers and members of the appellant Florida Accountants Association, which were alleged to be in violation of Ch. 473, Fla.Stat.1955, F.S.A., regulating the practice of public accounting. They alleged, among others, that the defendant corporation and its members were invading the field restricted to certified public accountants and public accountants by the statute and were holding themselves out as accountants contrary to the intent of Ch. 473, supra. The defendants denied that they were violating Ch. 473 by the actions complained of and alleged that, if their actions should be so construed, then the statute is unconstitutional as an unlawful restriction of the right of contract guaranteed by the Florida Constitution and an unwarranted exercise of the police power in that it favors one group of citizens at the expense of another without serving the general welfare. They also attacked the validity of certain rules adopted by the State Board.

Opining that he could not see how a person seeking the services of a certified public accountant could be misled into another category of accountants, the Chancellor nevertheless found that 'the defendant nonprofit corporation and its members use the word 'accountant' in such a manner that it would lead one to believe they practice the profession of 'accountancy", and that this is prohibited by Sec. 473.02 of the Act, defining 'public accounting', the practice of which is limited to those persons who hold certificates from the State Board as 'certified public accountants' and 'public accountants' under the Act. Sec. 473.25. He declined to declare the statute unconstitutional under the doctrine of stare decisisand the decision of this court in Heller v. Abess, 1938, 134 Fla. 610, 184 So. 122. By his decree he enjoined the defendant corporation and its members as a class (1) from holding themselves out as accountants authorized to practice as a separate and independent profession without specifying in their letters, their cards and their advertising that they offer only bookkeeping service, and (2) from using the word 'accountant' directly or indirectly in their published literature or representations to the public, either oral or written, or in signs on their offices or stationery. The defendants have appealed.

As noted, under Sec. 473.25 of the Act only thoes persons holding certificates of authority from the State Board as 'certified public accountants' or 'public accountants' are authorized to engage in the practice of public accounting in this state. With some exceptions not here pertinent, certified public accountants obtain their certificates as a result of an examination given by the State Board. The designation 'public accountant' refers to those persons who in 1927 were engaged in public accounting in this state, either in their own or another's accounting office, and were issued a certificate of authority to practice as a 'public accountant' prior to December 31, 1927. Ch. 12290, Acts of 1927. As of 1955, only twenty-eight 'public accountants' remained in practice in this state.

The definition of 'engaging in the practice of public accounting' contained in Sec. 473.02 is very broad and includes, among others, any person who holds himself out to the public as skilled in the knowledge, science and practice of accounting, or 'who maintains an office for the transaction of business as a public accountant, or who, except as an employee of a public accountant, practices accounting, as distinguished from bookkeeping for more than one employer.' A rule adopted by the State Board provides that 'The offering of his services as an independent contractor; the maintenance of an office for performance of work as distinguished from keeping of books and records at the place of business of the employer; the listing of one's name in the telephone and business directories as an accountant the employment of others as assistants; all are facts tending to show that an individual is engaged in the practice of public accounting as distinguished from serving as a part-time bookkeeper for one or more employers.'

In support of their contention that the statute and rule are unconstitutional, the defendants point out that the 1955 annual register of the State Board shows that there are only 723 certified public accountants and 28 public accountants who reside in the State of Florida; that 310 of these reside in Dade County; that 390 reside in the counties of Duval, Hillsborough, Orange, Pinellas, Palm Beach, Leon, Broward, Polk, Escambia, Alachua, and Volusia--in other words, that all except 51 of the authorized CPA's and 'public accountants' resided in twelve counties of this state. The remaining 51 persons resided in nineteen other counties, so that (as of June 30, 1955) thirty-six counties of this state, with a population of 394,299, had no CPA or 'public accountant' residing therein. The defendants contend that the statute has, in effect, created a monopoly in favor of one class of persons and deprived another class of an opportunity of earning a livelihood at their chosen profession and has resulted in great inconvenience and added expense to the general public, rather than subserved the public welfare. They ask this court to reappraise its decision in Heller v. Abess, supra, 184 So. 122, 123, in the light of the developments during the past nineteen years, and hold that Ch. 473 is unconstitutional and invalid insofar as it deprives 'noncertified accountants' of the right to do ordinary accounting and bookkeeping work for their clients and to designate themselves as 'accountants', as distinguished from 'certified public accountants' or 'public accountants' in so doing.

We have examined the original record in Heller v. Abess, supra, and find that the defendant in that case was holding himself out to the public as a 'Public Accountant' and practicing as a 'Public Accountant'. The lower court enjoined him from so doing 'unless and until he has received and holds a certificate of authority from the State Board of Accountancy of the State of Florida.' In affirming the lower court as against the attack upon its validity made by the defendant, this court said that

'The statute is not, as contended, an arbitrary, unreasonable and oppressive exercise of the sovereign legislative power in forbidding the use by others of the business or professional title given under the statute only to those who duly qualify and pay a licensed tax to engage in the business occupation or profession of public accountant as regulated by the statute; such provisions being reasonable and appropriate to prevent imposition upon the public and to serve the general welfare.' (Italics supplied.)

Noteworthy is the fact that immediately preceding this statement the reader's attention was directed to section 6115(4174), C.G.L., F.S.A. § 652.24. This section prohibited all banks not organized and transacting business under the laws of this State, and all persons or corporations doing the business of bankers, brokers or savings institutions 'from using or continuing to use the word 'bank' or any other title which may imply that it is an incorporated banking institution * * * except that individuals or firms who may be carrying on the business of banking may continue the use of such name or title, provided they append to such name or title wherever used the words 'not incorporated,' * * *'

In the light of the specific wording of the court's decision, italicized in the quotation above, and the reference to the above-quoted statute relating to the use of the word 'bank', we think it may fairly be concluded that this court intended only to uphold the validity of the statute insofar as it prohibited accountants from using the designations 'certified public accountants' or 'public accountants', and that it did not reach the question of whether a non-certified accountant could reasonably be prohibited from working at the business or occupation of accountancy, so long as he did not hold himself out as a CPA or 'public accountant'. Our conclusion in this respect is reinforced by the fact that in his appeal brief, the defendant in the Heller case quoted from the decision in Frazer v. Shelton, 1926, 320 Ill. 253, 150 N.E. 696, 702, 43 A.L.R. 1086, holding unconstitutional an Illinois statute, Laws 1925, p. 505, prohibiting the practice of accounting for more than one person by any except 'public accountants' or 'certified public accountants', but containing the following statement:

'We do not say that it is beyond the power of the General Assembly to enact a statute requiring that no one shall use the term 'certified public accountant' or the term 'public accountant' without having met the requirements of such an act. Such a provision may well be within the power of the Legislature on the ground that it is to the public interest that no one shall use a term indicating that he has been examined and certified as an accountant when such is not the fact. * * * Such is a misrepresentation which the Legislature may prevent by statute.'

Also pertinent here is the comment by the late Mr. Justice Brown in a case decided two years prior to the Heller case, State ex rel. Fulton v....