Morgan v. Oosterhoudt

• Decision Date: 31 May 1957
• Parties: Robert M. MORGAN et al., as and constituting the State Board of Accountancy, Appellants, v. O. J. OOSTERHOUDT, Appellee. . En Banc
• Court: Florida Supreme Court

Page 139

96 So.2d 139

Robert M. MORGAN et al., as and constituting the State Board of Accountancy, Appellants, v. O. J. OOSTERHOUDT, Appellee.

Supreme Court of Florida. En Banc.

May 31, 1957.

Rehearing Denied July 17, 1957.

Lazonby, Dell, Graham & Mills, Gainesville, and J. Lewis Hall, Tallahassee, for appellants.

McCarthy, Lane & Adams, Jacksonville, for appellee.

ROBERTS, Justice.

The issue here is whether a Florida certified public accountant is authorized under the provisions of the Florida Public Accounting Act, Ch. 473, Fla.Stat.1955, F.S.A., to act as the resident partner of a New York accounting firm, none of whose members is licensed to practice public accounting in Florida, and to hold out to the public that such firm is qualified to practice public accounting under the laws of the State of New York. The question arose in a suit for a declaratory decree filed by the plaintiff-appellee against the defendant-appellants, as members of the Florida State Board of Accountancy, and was answered by the Chancellor in the affirmative. The defendants have appealed.

The decision of the lower court was based on the proviso contained in Subsection (3) of Section 473.23 of the Florida Public Accounting Act. Section 473.23 lists fifteen specific actions that constitute a violation of the Act, including in subsection (3) thereof:

'Any person: * * * (3) Who shall, when practicing as a member of a firm, announce either in writing or by printing, or represent verbally, that the firm is practicing as 'Certified Public Accountants', unless all members of the firm are holders of valid and unrevoked certificates as certified public accountants issued by the state board of accountancy of this state; provided, that any person holding a certificate in good standing as a certified public accountant or as a public accountant granted by the state board of accountancy of this state, when acting as a representative, partner or manager of an individual or firm, properly qualified to practice public accounting under the laws of a state, or states, other than Florida, may hold out to the public that such individual is or that such individuals are, so qualified; * * *'

It is contended on behalf of the defendant State Board of Accounting that the proviso in the above-quoted provision must be read and construed in the light of other provisions of the Act in pari materia therewith; and that, when so read, the proviso relied upon by the plaintiff can only refer to out-of-state firms that come under the 'grandfather clause' of Section 473.16, Fla.Stat.1955, F.S.A. This section, as well as Section 473.23, was enacted as a part of Ch. 15637, Acts of 1931, and reads as follows:

'It is unlawful for any person holding a certificate as a certified public accountant * * * to act as the representative, agent or manager, in the State of Florida, in connection with the practice of public accounting, of any person not authorized under the provisions of this chapter to practice public accounting in this state, or of any firm or association of persons, unless each member of such firm or association of persons shall be authorized to practice public accounting in this state under the provisions of this chapter; provided, that any certified public accountant or firm of certified public accountants residing beyond the limits of the State of Florida, who was or were represented on June 25, 1931, in the State of Florida, by a representative, agent or manager, shall be permitted to continue to be represented in this state by such representative, agent or manager, but no new or successor representative, agent or manager in the State of Florida shall be appointed, employed or selected for such certified public accountant or firm of certified public accountants without the approval in writing of the board first being had and obtained.'

Also pertinent here are the provisions of Section 473.17, authorizing the registration of a firm name and the use of the designation 'Certified Public Accountants' in connection therewith if every member is a certified public accountant; and Section 473.26, prohibiting a person from practicing accountancy as a member of a firm unless he is a licensed Florida accountant.

By Section 473.16, supra, the Legislature has in clear and unambiguous words made it unlawful for a licensed Florida accountant to act as the 'representative, agent or manager' in this state of a non-resident accounting firm unless each member of the firm is licensed under Florida law to practice public accounting. The proviso, or 'grandfather clause' of this section was added by the Legislature for the usual purpose, that is, to preserve an...