Ibanez v. Fl Dep't of Business & Professional Regulation

• Decision Date: 13 June 1994
• Docket Number: 93639
• Citation: 129 L.Ed.2d 118,512 U.S. 136,114 S.Ct. 2084
• Parties: Silvia S. IBANEZ, Petitioner, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCY
• Court: U.S. Supreme Court

512 U.S. 136

114 S.Ct. 2084

129 L.Ed.2d 118

Silvia S. IBANEZ, Petitioner,

v FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCY.

No. 93-639.

Supreme Court of the United States

Argued April 19, 1994.

Decided June 13, 1994.

Syllabus ^*

Petitioner Ibanez is a member of the Florida Bar; she is also a Certified Public Accountant (CPA) licensed by respondent Florida Board of Accountancy (Board), and is authorized by the Certified Financial Planner Board of Standards (CFPBS), a private organization, to use the designation "Certified Financial Planner" (CFP). She referred to these credentials in her advertising and other communication with the public concerning her law practice, placing CPA and CFP next to her name in her yellow pages listing and on her business cards and law offices stationery. Notwithstanding the apparent truthfulness of the communication—it is undisputed that neither her CPA license nor her CFP authorization has been revoked—the Board reprimanded her for engaging in "false, deceptive, and misleading" advertising. The District Court of Appeal of Florida, First District, affirmed.

Held: The Board's decision censuring Ibanez is incompatible with First Amendment restraints on official action. Pp. ____.

(a) Ibanez' use of the CPA and CFP designations qualifies as "commercial speech." The State may ban such speech only if it is false, deceptive, or misleading. See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652. If it is not, the State can restrict it, but only upon a showing that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest. See, e.g., Central Hudson Gas & Electric v. Public Service Comm'n of N.Y., 447 U.S. 557, 564, 566, 100 S.Ct. 2343, 2350, 2351, 65 L.Ed.2d 341. The State's burden is not slight: It must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree. See, e.g., Edenfield v. Fane, 507 U.S. ----, ----, 113 S.Ct. 1792, ----, 123 L.Ed.2d 543. Measured against these standards, the order reprimanding Ibanez cannot stand. Pp. ____.

(b) The Board asserts that Ibanez' use of the CPA designation on her commercial communications is misleading in that it tells the public she is subject to the Florida Accountancy Act and to the Board's jurisdiction "when she believes and acts as though she is not." This position is insubstantial. Ibanez no longer contests the Board's assertion of jurisdiction over her, and in any event, what she "believes" regarding the reach of the Board's authority is not sanctionable. See Baird v. State Bar of Arizona, 401 U.S. 1, 6, 91 S.Ct. 702, 706, 27 L.Ed.2d 639. Nor can the Board rest on the bare assertion that Ibanez is unwilling to comply with its regulation; it must build its case on specific evidence of noncompliance. It has never even charged Ibanez with an action out of compliance with the governing statutory or regulatory standards. And as long as she holds a currently active CPA license from the Board, it is difficult to see how consumers could be misled by her truthful representation to that effect. P. ____.

(c) The Board's justifications for disciplining Ibanez based on her use of the CFP designation are not more persuasive. The Board presents no evidence that Ibanez' use of the term "certified" "inherently mislead[s]" by causing the public to infer state approval and recognition. See Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (attorney's use of designation "Certified Civil Trial Specialist By the National Board of Trial Advocacy" neither actually nor inherently misleading). Nor did the Board advert to key aspects of the designation here at issue—the nature of the authorizing organization and the state of knowledge of the public to whom Ibanez' communications are directed—in reaching its alternative conclusion that the CFP designation is "potentially misleading." On the bare record made in this case, the Board has not shown that the restrictions burden no more of Ibanez' constitutionally protected speech than necessary. Pp. ____.

621 So.2d 435 (Fla.App.1993), reversed and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court with respect to Part II-B, and the opinion of the Court with respect to Parts I, II-A, and II-C, in which BLACKMUN, STEVENS, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., joined.

Silvia S. Ibanez, for petitioner.

Lisa S. Nelson, for respondent.

Justice GINSBURG delivered the opinion of the Court.

Petitioner Silvia Safille Ibanez, a member of the Florida Bar since 1983, practices law in Winter Haven, Florida. She is also a Certified Public Accountant (CPA), licensed by Respondent Florida Board of Accountancy (Board) ¹ to "practice public accounting." In addition, she is authorized by the Certified Financial Planner Board of Standards, a private organization, to use the trademarked designation "Certified Financial Planner" (CFP).

Ibanez referred to these credentials in her advertising and other communication with the public. She placed CPA and CFP next to her name in her yellow pages listing (under "Attorneys") and on her business card. She also used those designations at the left side of her "Law Offices" stationery. Notwithstanding the apparently truthful nature of her communication—it is undisputed that neither her CPA license nor her CFP certification has been revoked—the Board reprimanded her for engaging in "false, deceptive, and misleading" advertising. Final Order of the Board of Accountancy (May 12, 1992) (hereinafter Final Order), App. 178, 194.

The record reveals that the Board has not shouldered the burden it must carry in matters of this order. It has not demonstrated with sufficient specificity that any member of the public could have been misled by Ibanez' constitutionally protected speech or that any harm could have resulted from allowing that speech to reach the public's eyes. We therefore hold that the Board's decision censuring Ibanez is incompatible with First Amendment restraints on official action.

I

Under Florida's Public Accountancy Act, only licensed CPAs may "[a]ttest as an expert in accountancy to the reliability or fairness of presentation of financial information," Fla.Stat.Ann. § 473.322(1)(c) (1991),² or use the title "CPA" or other title "tending to indicate that such person holds an active license" under Florida law. § 473.322(1)(b). Furthermore, only licensed CPAs may "[p]ractice public accounting." § 473.322(1)(a). "Practicing public accounting" is defined as an "offe[r] to perform . . . one or more types of services involving the use of accounting skills, or . . . management advisory or consulting services," Fla.Stat.Ann. § 473.302(5) (Supp.1994), made by one who either is, § 473.302(5)(a), or "hold[s] himself . . . out as," § 473.302(5)(b) (emphasis added), a certified public accountant.³

The Board learned of Ibanez' use of the designations CPA and CFP when a copy of Ibanez' yellow pages listing was mailed, anonymously, to the Board's offices; it thereupon commenced an investigation and, subsequently, issued a complaint against her. The Board charged Ibanez with (1) "practicing public accounting" in an unlicensed firm, in violation of § 473.3101 of the Public Accountancy Act; ⁴ (2) using a "specialty designation"—CFP—that had not been approved by the Board, in violation of Board Rule 24.001(1)(g), Fla.Admin.Code § 61H1-24.001(1)(g) (1994); ⁵ and (3) appending the CPA designation after her name, thereby "impl[ying] that she abides by the provisions of [the Public Accountancy Act]," in violation of Rule 24.001(1)'s ban on "fraudulent, false, deceptive, or misleading" advertising. Amended Administrative Complaint (filed June 30, 1991), 1 Record 32-35.

At the ensuing disciplinary hearing, Ibanez argued that she was practicing law, not "public accounting," and was therefore not subject to the Board's regulatory jurisdiction. Response to Amended Administrative Complaint (filed Aug. 26, 1991), ¶ 25, 1 Record 108.⁶ Her use of the CPA and CFP designations, she argued further, constituted "nonmisleading, truthful, commercial speech" for which she could not be sanctioned. ¶ 24, ibid. Prior to the close of proceedings before the Hearing Officer, the Board dropped the charge that Ibanez was practicing public accounting in an unlicensed firm. Order on Reconsideration (filed Aug. 22, 1991), ¶ 2, 1 Record 103-104. The Hearing Officer subsequently found in Ibanez' favor on all counts, and recommended to the Board that, for want of the requisite proof, all charges against Ibanez be dismissed. Recommended Order (filed Jan. 15, 1992), App. 147.

The Board rejected the Hearing Officer's recommendation, and declared Ibanez guilty of "false, deceptive, and misleading" advertising. Final Order, id., at 194. The Board reasoned, first, that Ibanez was "practicing public accounting" by virtue of her use of the CPA designation and was thus subject to the Board's disciplinary jurisdiction. Id., at 183. Because Ibanez had insisted that her law practice was outside the Board's regulatory jurisdiction, she had, in the Board's judgment, rendered her use of the CPA designation misleading:

"[Ibanez] advertises the fact that she is a CPA, while performing the same 'accounting' activities she performed when she worked for licensed CPA firms, but she does not concede that she is engaged in the practice of public accounting so as to bring herself within the jurisdiction of the Board of Accountancy for any negligence or errors [of which] she may be guilty when delivering her services to her clients.

"[Ibanez] is unwilling to acquiesce in the requirements of [the Public...