Miller v. Stuart

• Decision Date: 30 July 1997
• Docket Number: No. 96-2068,96-2068
• Citation: 117 F.3d 1376
• Parties: 11 Fla. L. Weekly Fed. C 266 Stephen M. MILLER, Plaintiff-Appellee, American Express Tax and Business Services, Incorporated, Plaintiff-Appellee-Cross-Appellant, v. George STUART, Secretary, as Head of the Florida Dept. of Business and Professional Regulation; John P. Baumann, Jr.; Charles H. Calhoun; Shaun M. Davis; Malcolm R. Duggan; Mirtha V. Martin; Francisco J. Paredes; Andrea A. Spottswood; David MacNamara; Zoya W. Phillips, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1376

117 F.3d 1376

11 Fla. L. Weekly Fed. C 266

Stephen M. MILLER, Plaintiff-Appellee American Express Tax and Business Services, Incorporated Plaintiff-Appellee-Cross-Appellant, v. George STUART, Secretary, as Head of the Florida Dept. of Business and Professional Regulation; John P. Baumann, Jr. Charles H. Calhoun; Shaun M. Davis; Malcolm R. Duggan Mirtha V. Martin; Francisco J. Paredes; Andrea A. Spottswood; David MacNamara; Zoya W. Phillips, Defendants-Appellants-Cross-Appellees.

No. 96-2068.

United States Court of Appeals, Eleventh Circuit.

July 30, 1997.

John J. Rimes, III, Asst. Atty. Gen., Gregory A. Chaires, Asst. Atty. Gen., Tallahassee, FL, for appellant.

David B. Isbell, Covington & Burling, Washington, DC, for amicus NASB.

Kenneth R. Hart, Steven P. Seymoe, Ausley & McMullen, Tallahassee, FL, for amicus FICPA.

Andrew J. Pincus, Gary A. Winters, Mayer, Brown & Platt, Washington, DC, for amicus AICPA.

Susan L. Turner, Holland & Knight, Tallahassee, FL, Donald B. Verrilli, Jr., Washington, DC, for appellee.

David C. Vladeck, Public Citizens Litigation Group, Washington, DC, for amicus Public Citizen.

Appeals from the United States District Court for the Northern District of Florida.

Before DUBINA and BLACK, Circuit Judges, and O'KELLEY ^*, Senior District Judge.

BLACK, Circuit Judge:

Stephen M. Miller, a Certified Public Accountant (CPA) employed by American Express Tax and Business Services, Inc. (American Express), presents a First Amendment challenge to the State of Florida's regulation of public accountancy. The State's regulatory scheme prevents Miller from disclosing his CPA license to the public while performing accounting and tax services because he is employed by American Express, a firm not owned by CPAs. On cross-motions for summary judgment, the district court granted summary judgment in favor of Miller and dismissed American Express. We affirm the grant of summary judgment in favor of Miller, but reverse the district court's dismissal of American Express.

I. BACKGROUND

A. Procedural History

On October 19, 1994, Miller and American Express filed an action against George Stuart, the Secretary of the Florida Department of Business and Professional Regulation, and members of the Florida Board of Accountancy (collectively "the State of Florida" or "the Board"). They sought a declaration that the State of Florida's statutory scheme violates both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. On November 23, 1994, the district court denied motions filed by Miller and American Express for a temporary restraining order and a preliminary injunction. After discovery was completed, the parties filed cross motions for summary judgment. On December 11, 1995, the district court entered an order granting Miller's motion for summary judgment with respect to his First Amendment claim, denying the State's motion for summary judgment, and dismissing American Express. The State of Florida appeals the grant of summary judgment in favor of Miller, and American Express cross appeals its dismissal.

B. Factual Background

Appellee Miller holds an active CPA license in the State of Florida and is the Managing Director of American Express in Tampa, Florida. American Express performs tax, bookkeeping, and accounting services for the public through its regional offices in 26 states. As American Express is a wholly-owned subsidiary of the publicly traded American Express Company, it is neither a professional service corporation nor owned entirely by CPAs (hereinafter "non-CPA firm"). Therefore, neither American Express nor its employees are eligible to practice public accountancy, i.e., provide public accounting services. See Fla. Stat. ch. 473.309 (1993) (confining public accountancy to CPA-owned partnerships, professional service corporations, and limited liability companies). ¹ American Express, nevertheless, lawfully employs CPAs to perform accounting and tax services. These services fall within the types of services enumerated in the definition of public accountancy in Fla. Stat. ch. 473.302(5)(b) (Supp.1994) (hereinafter "accounting and tax services"). ² American Express' provision of these services, however, does not constitute public accountancy because neither American Express nor its CPA employees disclose to the public that these services are performed by CPAs. See id. Accordingly, American Express' CPA employees need not meet the regulations on public accountancy, ³ and they provide the same unregulated accounting and tax services that non-CPAs lawfully provide. ⁴ See id.; see also Fla. Stat. ch. 473.322(1)(c) (Supp.1994).

C. The First Amendment Claim

1. Appellee Miller

In his complaint, Miller sought to vindicate an asserted First Amendment right to disclose his CPA designation to current and prospective clients, including the right to place his CPA designation on business cards, letterheads, and written advertisements. Such advertisement of the fact of licensure would constitute "holding out" as a CPA within the meaning of Fla. Stat. ch. 473.302(6). ⁵ In turn, Miller's holding out as a CPA while performing accounting and tax services for the public would constitute public accountancy. See Fla. Stat. ch. 473.302(5)(b). The Board would then have the ability to revoke his license for unlawfully practicing public accountancy at American Express, a non-CPA firm. See Fla. Stat. chs. 473.323(1)(a), 473.323(3)(b). Miller therefore sought to enjoin the State of Florida from enforcing its statutory scheme, asserting that it infringed upon his First Amendment rights by preventing him from holding himself out as a CPA. Miller sought a declaratory judgment that the State of Florida may not prevent him from holding himself out as a CPA while performing accounting and tax services of the kind identified in Fla. Stat. ch. 473.302(5)(b), which he currently provides at American Express. Miller did not seek to have Fla. Stat. ch. 473.309, the statute that confines public accountancy to CPA-owned professional service corporations, invalidated. That is to say, Miller did not seek a right to provide public accountancy services that meet all the regulations on public accountancy, see supra note 3, except for those stated in Fla. Stat. ch. 473.309.

2. Cross-Appellant American Express

In a similar manner, American Express wanted to inform its clients that it employed CPAs to perform accounting and tax services. As such disclosure would constitute the unlawful practice of public accountancy by a non-CPA firm, see Fla. Stat. ch. 473.302(5)(b), American Express and its officers would be subject to prosecution, see Fla. Stat. ch. 473.322. Consequently, American Express also sought a declaratory judgment that under the First Amendment, the State of Florida may not proceed against it for the unlawful practice of public accountancy. ⁶

II. STANDARD OF REVIEW

This Court reviews the district court's grant of summary judgment de novo, applying the same legal standards used by the district court. Parks v. City of Warner Robins, 43 F.3d 609, 612-13 (11th Cir.1995). Where, as here, the facts related to the issue of standing are not in dispute, this Court reviews a district court's ruling that a party lacks standing de novo. See Wilderness Soc'y v. Alcock, 83 F.3d 386, 389 (11th Cir.1996).

III. DISCUSSION

A. Appellee Miller

1. District Court Holding and Issues on Appeal

The district court found that this case implicated the First Amendment and that Appellee Miller's holding out constituted commercial speech. In applying the four-part standard of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the district court further held that Florida's statutory scheme violates the First Amendment to the extent that it prevents Miller from holding himself out as a CPA at American Express. On appeal, the State of Florida maintains that this case does not implicate the First Amendment. Alternatively, the State of Florida contends that Miller's holding out is not protected commercial speech because it is misleading. The State of Florida further asserts that even if the speech in question is not misleading, the statutory scheme withstands constitutional scrutiny because the restrictions on speech are narrowly tailored and further substantial state interests.

2. Whether this Case Implicates the First Amendment

The Supreme Court has already found that an actively licensed CPA's use of the CPA designation constitutes commercial speech. See Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 142, 114 S.Ct. 2084, 2088, 129 L.Ed.2d 118 (1994) ("The Board correctly acknowledged that Ibanez' use of the CPA and CFP designations was 'commercial speech.' "); see also Edenfield v. Fane, 507 U.S. 761, 765, 113 S.Ct. 1792, 1797, 123 L.Ed.2d 543 (1993) (in-person solicitation by a CPA is commercial speech); Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 99, 110 S.Ct. 2281, 2287, 110 L.Ed.2d 83 (1990) (an attorney's holding out as a Certified Civil Trial Specialist, a credential granted by the National Board of Trial Advocacy, is commercial speech).

The State of Florida nevertheless insists that Miller's holding out is not speech, but conduct, because holding out in conjunction with offering to perform or performing accounting and tax services for the public is considered the practice of public accountancy. See Fla. Stat. ch. 473.302(5)(b). The Ibanez decision did not resolve this precise issue. Sylvia Ibanez, a lawyer-CPA, had used her CPA designation in commercial advertising related to her legal practice, but had not licensed her professional service corporation with the Florida Board of Accountancy because she claimed that she was not practicing public accountancy. Ibanez, 512 U.S. at 138-40, 114 S.Ct. at 2086-88. The Board brought a disciplinary proceeding, asserting inter alia that Ibanez' holding out in...