People v. Hill
| Decision Date | 25 January 1977 |
| Citation | 136 Cal.Rptr. 30,66 Cal.App.3d 320 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Jack M. MILL, Defendant and Appellant. Civ. 38875. |
Louis P. Bergna, Dist. Atty., Robert J. Masterson, Deputy Dist. Atty., San Jose, Evelle J. Younger, Atty. Gen., Wilbert E. Bennett, Deputy Atty. Gen., San Francisco, for respondent.
Defendant and appellant Jack M. Hill, doing business under the firm name of A--Accounting--Jack M. Hill & Co., appeals
from an order of the Santa Clara County Superior Court granting a preliminary injunction. An amicus curiae brief has been filed in support of the order granting the preliminary injunction of the State Board of Accountancy.
1) An uncertified person may not use the term 'accountant' or 'accounting' in the name of his business.
2) The trial court properly granted the preliminary injunction.
The People of the State of California through the District Attorney of Santa Clara County filed a complaint for injunction, civil penalties, exemplary damages and other relief in the Superior Court of Santa Clara County naming Jack M. Hill and A--Accounting--Jack M. Hill & Co., as defendants. The complaint contains the following allegations: Jack M. Hill is the proprietor, owner, manager, agent, employee and representative of A--Accounting--Jack M. Hill & Co. Appellant is not licensed as a public accountant or as a certified public accountant. Appellant has engaged in false and misleading advertising by using the term "Accounting" in his business name ("A--ACCOUNTING--JACK M. HILL & CO.") which appears at his place of business, in the telephone directory and on business correspondence. The use of the term "accounting" is deceptive and misleading in that it implies that appellant is licensed to practice pubic accounting. The use of the term "Accounting" in appellant's business title constitutes an unfair business practice in that it causes appellant to appear better qualified or more highly trained than other unlicensed competitors or to be equally qualified with licensed public accountants and certified public accountants. Respondent asked that appellant be enjoined from using the words "accounting" or "accountant" or abbreviation thereof in conjunction with his business title.
On the same date that the complaint was filed an order to show cause why the preliminary injunction should not be granted was signed by the lower court. On November 18, 1975, appellant filed a declaration and points and authorities in opposition to the motion for a preliminary injunction. The matter was heard before the Honorable John R. Kennedy. A full hearing was held on notice. On November 25, 1975, the lower court granted a preliminary injunction enjoining appellant from using the words "accounting" or "accountant" in conjunction with or reference to his business and from '(r)epresenting (himself) as (an accountant) in any manner that would tend to confuse or mislead the public. . . .' Thereafter, appellant answered the complaint.
The statutes pertaining to accountants in California are found in the Business and Professions Code sections 5000 through 5157 and is commonly known as and hereinafter referred to as the 'Accountancy Act.'
Section 5033 1 defines a "(c)ertified public accountant" as 'any person who has received from the board a certificate of certified public accountant and who holds a valid permit to practice under the provisions of this chapter.' 2 Section 5034 defines a "(p)ublic accountant" as a 'person who has registered with the board as a public accountant and who holds a valid permit for the practice of public accountancy.' 3 Section 5050 provides in pertinent part: 'No person shall engage in the practice of public accountancy in this State unless such person is the holder of a valid permit to practice public accountancy issued by the board (State Board of Accountancy); . . .' Public accountancy is defined in section 5051 as follows: 'Except as provided in Sections 5052, 5053, and 5054, a person shall be deemed to be engaged in the practice of public accountancy within the meaning and intent of this chapter:
'(a) Who holds himself or herself out to the public in any manner as one skilled in the knowledge, science and practice of accounting, and as qualified and ready to render professional service therein as a public accountant for compensation; or
'(b) Who maintains an office for the transaction of business as a public accountant; or
'(c) Who offers to prospective clients to perform for compensation, or who does perform on behalf of clients for compensation, professional services that involve or require an audit, examination, verification, investigation, certification, presentation, or review, of financial transactions and accounting records; or
'(d) Who prepares or certifies for clients reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related schedules, exhibits, statements, or reports which are to be used for publication or for the purpose of obtaining credit or for filing with a court of law or with any governmental agency, or for any other purpose; or
'(e) Who, in general or as an incident to such work, renders professional services to clients for compensation in any or all matters relating to accounting procedure and to the recording, presentation, or certification of financial information or data.'
Under section 5052 the following persons are excepted from the Accountancy Act: 'any person who as an employee, independent contractor, or otherwise, contracts with one or more persons, organizations, or entities, for the purpose of keeping books, making trial balances, statements, making audits or preparing reports, all as a part of bookkeeping operations, provided that such trial balances, statements, or reports are not issued over the name of such person as having been prepared or examined by a certified public accountant or public accountant.'
Under section 5053 the Accountancy Act does not apply to employees or assistants of certified public accountants or public accountants.
Under section 5054 any corporation engaged in the practice of public accountancy at the effective date of section 5054 may continue to engage in public accountancy.
Section 5055 prohibits the use of the title "certified public accountant" and the abbreviation "C.P.A." except by those holding a certificate. Similarly, section 5056 prohibits the use of the title "public accountant" and the abbreviation "P.A." except by those holding a certificate of public accountancy. Section 5059 prohibits the use of other titles likely to be confused with the terms "certified public accountant" and "public accountant," and abbreviations likely to be confused with "C.P.A." and "P.A." Section 5058 enumerates such titles as "chartered accountant," "certified accountant," "enrolled accountant," "registered" or "licensed accountant" and similar abbreviations as "C.A.," "E.A.," "R.A.," or "L.A."
Appellant argues that the Legislature has not prohibited the practice of unlicensed accountancy. (Bus. & Prof.Code, § 5052.) Nor has the Legislature expressly prohibited the use of the word "accountant" by an unlicensed person as long as the word is not used in conjunction with another word that connotes official licensing or sanction. Appellant states: 'the recital of modifiers to the word 'accountant' (found in section 5058) and to the abbreviation 'A' is sufficiently repeated in the statutory language as to lead one to believe' that 'accountant' was omitted deliberately.
Respondent and the State Board of Accountancy contend: 'when an unlicensed person represents that he has the requisite skills and qualifications of a public accountant by holding himself out as an 'accountant' or as one versed in 'accounting,' there is a substantial risk that the public may be confused into thinking that he is an actual licensee of the state.' The State Board of Accountancy concedes that the California statutory scheme to regulate the practice does not prohibit an unlicensed person from practicing accounting or doing accounting, provided that such practice or work does not come under the classification of 'public accountancy,' but argues that the statutory scheme does prohibit such a person from calling himself an accountant.
All parties to this action agree that no California case has considered the issue whether an uncertified or unregistered person may use the term 'accountant' or 'accounting' in connection with his business. However, this issue has been addressed by several other jurisdictions.
It is well established in other jurisdictions that the Legilature has, in the public interest and for the general welfare, the power to regulate the profession of public accounting by prohibiting a person from representing himself as a 'certified public accountant' or using the initials 'C.P.A.' or otherwise holding himself out as qualified under such or similar statutes without actually having received such certificate. (Heller v. Abess (1938) 134 Fla. 610, 184 So. 122; Elliott v. University of Illinois (1936) 365 Ill. 338, 6 N.E.2d 647, cert. den. 302 U.S. 692, 58 S.Ct. 11, 82 L.Ed. 534, rehg. den. 302 U.S. 774, 58 S.Ct. 133, 82 L.Ed. 600; State v. De Verges (1923) 153 La. 349, 95 So. 805; People v. Marlowe (1923) 40 N.Y.Crim. 448, 203 N.Y.S. 474; Wangerin v. Wisconsin State Board of Accountancy (1936) 223 Wis. 179, 270 N.W. 57.) But the question remains if other jurisdictions have prohibited a person from calling himself an 'accountant' if he has not received a certificate from the state.
In State ex rel. Short v. Riedell (1924) 109 Okl. 35, 233 P. 684, an...
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Moore v. California State Bd. of Accountancy
...in part on the only California case to have considered whether use of the terms at issue here may be banned--People v. Hill (1977) 66 Cal.App.3d 320, 136 Cal.Rptr. 30 (Hill )--concluded the statutory scheme prohibited an unlicensed person from holding himself or herself out to the public as......
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