Amicus Curiae Brief — Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy

No. 93-639 | aka oS

bow

In the

Supreme Court of the United States

October Term 1993

o

SILVIA S. IBANEZ,

Petitioner,

Vv.

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION,

BOARD OF ACCOUNTANCY

Respondent.

°

On Writ of Certiorari

To The District Court of Appeal of Florida

For the First District

@

BRIEF OF AMICUS CURIAE

FLORIDA INSTITUTE OF CERTIFIED PUBLIC

ACCOUNTANTS, in Support of Respondent

o

KENNETH R. HART*

STEVEN P. SEYMOE

Macfarlane Ausley

Ferguson & McMullen

Post Office Box 391

Tallahassee, Florida 32302

(904) 224-9115

*Counsel of Record for

Amicus Curiae

rh

QUESTIONS PRESENTED FOR REVIEW

Whether the State of Florida’s statutory scheme violates the

First Amendment by prohibiting an employee of a firm that is not

licensed as a public accounting firm from holding herself out to the

public as a certified public accountant (CPA) when providing

accounting and tax services to the public.

Whether the State of Florida’s regulatory scheme violates

the First Amendment by prohibiting certified public accountants

(CPAs) who are practicing public accounting from using the term

“certified” in connection with self-designations and titles not

approved by the Florida Board of Accountancy.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... il

TABLE GR CORTTEIED cc cc cc rte cece ee eesesees iil

TABLE OF AUTHORITIES .. 0... cc cccvvcsccsees Vv

CONSENT OF THE PARTIES ............56-5555:5 x

INTEREST OF AMICUS CURIAE ............... l

SUMMARY OF ARGUMENT ............++++5: 2

PS, aren arrr t ry er 6

I. THE STATE OF FLORIDA’S REGULATION

OF THE PRACTICE OF PUBLIC ACCOUNT-

ING DOES NOT VIOLATE THE FIRST

[\,, Serer 6

A. The State of Florida Defines the Practice of

een er may epny ee A

Petitioner for Rendering Public Accounting =

The ine_|

D. The State of Florida May Regulate the Prac:

iil

ll. THE STATE OF FLORIDA'S REGULATION

OF THE USE OF THE TERM “CERTIFIED”

DOES NOT VIOLATE THE FIRST AMEND-

iV

TABLE OF AUTHORITIES meee

An Pad ise? ditt Cit. 1992)... 6... eeeee. :

AGO F.2d 602 (4th Cr. 1988) TAA PLOT. 18

On _——_—

ee ae uaews 21

SE ai ee bee 10 SP ARE Sa e 8,9

a yr r

oT ot 123 L. Ed. 2d 543,

113 S. Ct. 1792 (1993) ..... 20... eee ee. 7, 19, 20

mMNGS Wedd 71 (B.D. 1960)... esses eec cues. ,

eee $0 20323 Pe 1ST) SR ede ay tr 19

SS See ee 97h EPS Pe OA re 19

8 ee 22

Grandee v, Glaser,

785 F. Supp. 684 (S.D. Ohio 1992)...........___ 18

MPU OID. ccc cece csc ccce enn... 6

170 So. 24 33 (Fla. 1964)..................... 7

i

496 U.S.91(1990)................. 19, 21, 27. 28

SSE es 7

Virginia State Bd. of Pt Virzini

nna Ul a i 18

Statutes & Regulations

49 Pa. Code § 11.1(1993) ........0.00000 23

I re 23

Conn. Gen. Stat. Ann. § 20-279(b)(7)

OMG oc ceed ce h dk Ss oe 6 bbe eax 23

eee hcag ey aOR ol i.e ns 23

Fla. Admin. Code ch. 21A (1991).......0..00 0.” 7

Fla. Admin. Code r. 21A-20.011(1991)..........._ 8

Fla. Admin. Coder. 21A-22(1991) ............ 7

Fla. Admin. Code r. 21A-24.001 (1991) . . 2-4, 6, 9, 16, 26, 28

vi

Fla. Admin. Code r. 21A-36 (1991)... ee ee ees 7

Fla. Admin. Code. ch. 61H (1992) ... 2. eee ere ee 7

Fla. Stat. § 473.309 (1991)... 2.6 ee eee 9, 15

Fla. Stat. § 473.3101 (1991) ... 2... - eee eee eee 15

Fla. Stat. § 473.302(4)(b) (1991) © 2. ee es 8

Fla. Stat. § 473.31 (1991)... ©. eee eee eee 7

Fla. Stat. § 473.315 (1991) .....--- eee eee eres 7

Fla. Stat. § 473.3205 (1991)... .-.--- 2 ee eee eee: 7

Fla. Stat. § 473.323 (1991) ........---. 2-4, 6, 7, 9, 16, 26

Ga. Comp. R. & Regs. r. 20-2-.11 (1978) ........--. 23

Haw. Rev. Stat. § 466-3 (1992) ...... 2... see ewes 23

Idaho Code § 54-206(20) (Supp. 1993) .........----- 23

Ind. Code § 25-2-1-2(e) (1991)... . ee eee eee 24

lowa Code § $42C.2 (Supp. 1993) ........----.--- 23

La. Rev. Stat. Ann. § 37:72(1) (West 1994) .......... 24

Mass. Gen. L. Ann. Ch. 13 § 87A (Supp. 1993) ....... 23

Md. Regs. Code tit. 9, § 24.01.01(6)(a) (Supp. 1993) . 23

Me. Rev. Stat. Ann. tit. 32, § 12201 (West 1993) ....... 23

Mich. Comp. Laws Ann. § 339.702(1)(d) (West Se

Minn. Stat. § 326.165(2) (West 1994) .........-555- 24

Mo. Code Regs. tit. 4, § 10-2.050(9)(A) (1993) ......-. 24

N.C. Gen. Stat. § 93-1(2)(5) (1993)... .. 2. eee ee 24

vil

N.H. Rev. Stat. Ann. § 309-A:1 (IV) (1992)

N.M. Stat. Ann. § 61-28A-3.G & I (1993)

N.Y. Educ. Law § 7401 (McKinney 1993) ...........

Neb. Admin. R. & Regs., tit. 288, Ch. 3.001(16) (1989) .

Nev. Rev. Stat. Ann. § 628.023 (Michie 1986)

Okla. Stat. tit. 59, § 15.1A(27) (1994)

Tenn. Code Ann. § 62-1-103(5)(1993) ..............

Tex. Rev. Civ. Stat. Ann. art 41A1.2(a)(6)(A)

CEE Cocca LOWGs eae acacececes ss

Utah Code Ann. § 58-26-2(12) (Supp. 1993)

Vt. Stat. Ann. tit. 26, § 13(7) (1993)

We We ED ccc cccccccccccoceee

Wash. Rev. Code Ann. § 18.04.025(5) (West 1994)

Wis. Stat. Ann. § 442.02 (1988)

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ee ee ee oe

oh I © i a ee or am eh om aw kt we mw

i a =

2, e828 82 82 Cee 8 ee@d@ee8 2 © #4

viii

| boriti

AICPA, Code of Professional Conduct,

1C.C.H. Acct. L. Rotr, 9 106.......-.- 0 eee ees 23

American Institute of Certified Public Accountants &

National Association of State Boards of Accountancy,

Uniform Accountancy Act,

Section 3(g), 1 C.C.H. Acct. L. Rotr.

BE, cddedwesebeeahesdbecccconcccors 23

Fischer, State Regulation of Psychologists,

58 Wash. U.L.Q. 639 (1980)... 2. 2 6 ee ee 24

Gellhorn, Occupational Licensing~A Nationwide Delemma.

a’ ) See 24

Goldberg, A Lawyer’s Multiple Occupations,

6 Wake Forest Intramural L. Rev. 191 (1970) ....... il

Moore, The Purpose of Licensing,

OOS Se PE gn ccceeseccccocecosses 24

Rules and Regulations of the Mississippi State

Board of Accounting,

1C.C.H. Acct. L. Rpts. 1 26,105(m) ............ 24

ix

No. 93-639

In the

Supreme Court of the United States

October Term 1993

SILVIA S. IBANEZ,

Petitioner,

v

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION,

BOARD OF ACCOUNTANCY

Respondent.

On Writ of Certiorari

To The District Court of Appeal of Florida

For the First District

°

CONSENT OF THE PARTIES

Sylvia S. Ibanez, Petitioner, and State of Florida Depart-

ment of Professional Regulation, Board of Accountancy, Respon-

dem, have consented to the Florida Institute of Certified Public

Accountants participating in these proceedings as Amicus Curiae in

support of Respondent. Their consents have been filed with this

Court.

INTEREST OF AMICUS CURIAE

The Florida Institute of Certified Public Accountants

("FICPA") is a Florida not-for-profit corporation with its principal

place of business in Tallahassee, Florida. Founded in 1905, FICPA

is an active professional organization of approximately 18,000

Certified Public Accountants ("CPAs"), working to improve the

accounting profession and to serve the public. The FICPA is the

fifth-largest state CPA organization in the United States. Its

membership is comprised of practitioners in public accounting,

industry, government, and education. Other membership categories

include associate members, retired CPAs, and CPAs domiciled

outside the State of Florida.

One of the primary purposes of the FICPA is to encourage the

analysis, discussion, and understanding of issues related to the

accounting profession. This includes monitoring the scope of

services provided by CPAs in Florida and throughout the United

States; monitoring legislation affecting the practice of public

accountancy; assisting in the development of auditing, accounting,

and ethical standards; and educating the public with regard to the

responsibilities of CPAs. These areas of activity relate directly to

the issues now before this Court.

FICPA has been granied consent to file a brief in this matter

as Amicus Curiae in support of Respondent by counsels for

Petitioner and Respondent.

SUMMARY OF ARGUMENT

This matter is before this Court as a result of the State of

Florida Department of Professional Regulation, Board of Accoun-

tancy ("the Board") entering a Final Order that concluded that

Petitioner violated subsections 473.323(1)(a), (f), (g), and (h),

Florida Statutes, and Rule 21A-24.001, Florida Administrative

Code. Petitioner appeals that Final Order which was affirmed per

curiam by the Florida First District Court of Appeals, arguing that

she has the constitutional right to practice public accounting as an

employee of an unlicensed firm and to advertise her Certified

Financial Planner ("CFP") status in conjunction with her Certified

Public Accountant ("CPA") license.

Since 1931, the practice of public accountancy in Florida has

been regulated pursuant to the State’s police power. Under

Florida’s regulatory scheme, the practice of public accountancy is

defined as a CPA providing services to the public involving the use

of accounting skills or management advisory or consulting services

while holding out to the public that the provider is a CPA. Except

in areas not relevant to this case, the definition requires two

separate elements: (a) the provision of accounting or management

advisory or consulting services to the public, and (6) the holding

out to the public that the provider of these services is a CPA.

In the proceedings below and before this Court, Petitioner

admits both elements. Petitioner admits that, through her advertise-

ments, she is holding out "to the world I am a CPA.” She testified

that her clients considered it “extremely valuable” she have an

active CPA license and that she therefore considered it valuable for

her to hold herself out to the public as a CPA.

Petitioner also admits that she is providing public accounting

services by providing substantially the same services to the public

in her current firm that she provided while working as a CPA for

the national accounting firms Coopers & Lybrand and Main

Hurdman. Petitioner testified that, as part of her current profes-

sional practice, she provides all types of tax services, including

evaluating the tax consequences of specific transactions and provid-

ing her clients with financial counseling and planning services. All

of these services involve the provision of accounting skills or

management advisory or consulting services to the public and are

substantially the same services she provided to the public when she

worked for CPA firms.

As part of the licensure, educational, and technical require-

ments Florida imposes upon CPAs, CPAs are required to license

their professional service corporations and partnerships with the

Board. Fla. Stat. §§ 473.309, 473.3101 (1991). There is no

dispute that the public accounting services Petitioner provides to the

public are as an employee of an unlicensed firm, a violation of

Chapter 473, Florida Statutes. As a result thereof, and by clear and

convincing evidence, the Department of Professional Regulation (the

"Department") established at the formal hearing that Petitioner

violated subsections 473.323(1)(a), (f), (g), and (h), Florida Stat-

utes, and Rule 21A-24.001, Florida Administrative Code.

Because the practice of public accounting involves holding

oneself out to the public, the State of Florida chose to characterize

this violation as a false and misleading advertisement. However, if

Petitioner’s employer had been licensed, it would not have been

illegal for Petitioner to hold herself out to the public as a CPA.

There are a number of law firms in Florida who are also licensed

as CPA firms and whose members hold themselves out to the public

as CPAs. Contrary to Petitioner's repeated assertions, Florida does

not ban lawyers from holding themselves out as CPAs. It only

requires that their firms be licensed under Chapter 473.

Petitioner’s arguments that Florida’s law violates the First

Amendment are without merit. The State has a substantial interest

in ensuring that those professionals who hold themselves out to the

public as CPAs while providing public accounting services are

indeed subject to the State’s educational, technical, and licensure

requirements. The regulation is narrowly tailored to accomplish its

purpose and is rationally related to that purpose.

With regard to advertising her Certified Financial Planner

("CFP") status, the Department also established by clear and

convincing evidence that, while engaged in the practice of public

accounting, Petitioner violated section 473.323 and Rule 21A-

24.001 by appending her CFP designation after her name in adver-

tisements.

In addition, since 1982, the Florida Board of Accountancy has

consistently issued letter opinions that the designation “certified

financial planner” is an accountancy specialization which has not

been approved by the Board. Rule 21A-24.001 permits the use of

certain specialist designations as long as the statement contains a

disclaimer that the recognizing agency is not affiliated with the state

or federal government and contains the agency’s requirements for

recognition, including any education, experience, and testing

requirements. Here also, Florida has a substantial interest in

ensuring that the public is not misled when a specialist designation

is utilized and its regulation is rationally related and narrowly tai-

lored to prevent confusion. However, with regard to such designa-

4

tion, Florida does prohibit the use of the term certified unless

approved by the Board. The State also has a substantial interest in

ensuring that the public is not confused by the use of certain

designations including "certified" and that such designations do not

convey the impression that the designations are licensed by the

State. Florida’s regulation is rationally related and narrowly

tailored to this purpose.

For the foregoing reasons, the decision below should be

affirmed.

ARGUMENT

I. THE STATE OF FLORIDA’S REGULATION OF THE

PRACTICE OF PUBLIC ACCOUNTING DOES NOT

VIOLATE THE FIRST AMENDMENT.

In its Final Order, the Department determined that Petitioner

is engaged in the practice of public accountancy as an employee in

an unlicensed entity and that by holding herself out to the public as

a CPA, she violated section 473.323 and Rule 21A-24.001 by

engaging in deceptive and misleading advertisement. (J.A. 178-95)

By asserting that the disclosure of her CPA status is constitutionally

protected commercial speech under the First Amendment, Petitioner

seeks the constitutional right to solicit the public as a CPA, to pro-

vide the requested accounting services, and to then ignore the State

of Florida’s regulatory requirements that accompany being a CPA.

Petitioner's appeal challenges not only Florida’s definition of public

accounting and its “holding out" requirement, but the regulatory

structure of all states that utilize "Title Acts” to regulate services.

A ;

eT | pa he Provider is a Certified Public A

Since 1931, Florida has regulated the practice of public

accountancy pursuant to the State’s police power. In Heller y.

Abess, 184 So. 122, 127 (1938), the Florida Supreme Court held

the profession of public accounting was sufficiently charged with

public interest to justify legislation providing for the registration of

accountants and prohibiting the practice of accountancy as a CPA

in the State of Florida without certification by the State. In keeping

with that public interest, Florida has enacted Chapter 473, Florida

Statutes, and Chapter 21A, Florida Administrative Code, in order

to regulate the practice of public accountancy.’ This regulatory

scheme seeks to ensure the integrity, independence, and objectivity

of CPAs in the provision of public accounting services .*5

This Court has previously recognized it is critical that, in

performing accounting services, CPAs “'maintain total independen-

ce’ and act with "complete fidelity to the public trust."” Edenfield

y. Fane, 507 U.S. _,, 123 L. Ed. 2d 543, 554-55, 113 S. Ct.

1792 (1993), quoting United States v. Arthur Young & Co,, 465

U.S. 805, cert, denied, 466 U.S. 936 (1984).

With the exception of the attest function, any individual may

provide accounting services to the public.’ (J.A. 180) As a result,

Florida regulates public accounting through a “Title Act,” whose

purpose is to protect the public by assuring consumers that CPAs

who hold themselves out as CPAs meet the technical, educational,

and other standards imposed by the Florida Legislature and the

Board of Accountancy. (J.A. at 180-85) See also Mercer vy. Hem-

mings, 170 So. 2d 33 (Fla. 1964). Licensure Acts, by contrast,

prohibit all but the licensed individuals from performing the

regulated activities. See, e.g.. Abramson v. Gonzalez, 949 F 2d

1567 (11th Cir. 1992).

‘Chapter 21A, Florida Administrative Code, has recently been

recodified in Chapter 61H, Flonda Admunistrative Code.

?The provisions include, for example, the technical standards set forth

in section 473.315, Florida Statutes, and Rule 21A-22, Florida Admunistra-

tive Code, the prohibitions on the use of commission and contingency fees

set forth in sections 473.3205 and 473.31, Florida Statutes, and the

disciplinary provisions of section 473.323 and Rule 21A-36.

"The attest function refers to the process by which a CPA audits

financial statements prepared by an entity and expresses an opinion as to

whether the entity's financial position and results of operation are fairly

presented in accord with generally accepted accounting principles.

;

The statutory definition of the practice of public accountancy

in Florida is:

(a) Offering to perform or performing for the

public one or more types of services involving the use of

accounting skills, or one or more types of management

advisory or consulting services, by a certified public ac-

countant, or firm of certified public accounts, of this

State, including the performance of such services in the

employ of another person; or

(ob) Offering to perform or performing for the

public one or more types of services involving the use of

accounting skills, or one or more types of management

advisory or consulting services, by any other person

holding himself or itself out as a certified public accoun-

tant or a firm of certified public accountants, including

the performance of such services by a certified public ac-

countant in the employ of a person so holding himself or

itself out... .

Fla. Stat. § 473.302(4)(a)(b) (1991). Except for the attest function

and certain associations with financial statements that are not at

issue in this case, the Florida Board of Accountancy has interpreted

this definition to exempt from the practice of public accounting

CPAs who do not hold themselves out as CPAs and CPAs who

provide services only to their employer. See Rule 21A-20.011,

Florida Administrative Code; Cenac v. Florida State Bd. of Acct.,

399 So. 2d 1013 (Fla. Ist DCA 1981).

Therefore, to the extent that a CPA provides one or more

types of accounting skills and management advisory or consulting

services to the public, while holding out to the public as a CPA,

such individual is practicing public accounting. (J.A. 183)

Florida's definition requires two separate elements: (a) the provision

of accounting or management advisory services to the public, and

(b) the holding out to the public as a CPA providing these servic-

es.* If only one element is present, the activity is not the practice

of public accounting and is not subject to regulation by the State.

In Counts I and III of the Amended Administrative Complaint,

the Department charged Petitioner with violating subsections

473.323(1)(a), (f), (g), and (h) and Rule 21A-24.001 by engaging

in deceptive and misleading advertisements by rendering public

accounting services in an unlicensed firm and by appending the

CPA designation after her name in advertisements;’ Count II

charged Petitioner with violating subsectious 473 .323(1)(f) and Rule

21A-24.001 by providing public accounting services and by append-

ing the CPA and CFP designation after her name in advertisements.

(R. 032, 0103) At the hearing, the Department established by clear

and convincing evidence that Petitioner is engaged in the practice

of public accountancy in an unlicensed entity and that by holding

herself out to the public as a CPA when providing these services,

she violated section 473.323 and Rule 21A-24.001 by engaging in

deceptive and misleading advertising.

**Holding out” has been defined as engaging in advertising or a course

of conduct to inform the public. See, e.g., Evans v. Hoyme, 105 N.W.2d

71, 75 (S.D. 1960); Cenac v. Florida State Bd. of Acct., 399 So. 2d

1013, 1015 (Fla. ist DCA 1981).

‘Count | charged Petitioner with violating section 473.309, Florida

Statutes, which prohibits the practice of public accounting in an unlicensed

firm. (R. 032) However, because that charge was added late in the

process, it was stricken on procedural grounds. However, the factual

allegation of practicing in an unlicensed firm remained in paragraphs 8 and

9 of the complaint. The effect was to charge Petitioner in Counts | and III

Se ee ee on oe a et

practicing public accounting in an unlicensed firm by appending the CPA

designation after her name in advertisements. See (J.A. 185, 1.7)

Although the underlying charge of practicing in a firm without a license

was stricken, Petitioner admits to not having licensed her firm pursuant to

this provision and the Board so found. Petitioner's Initial Brief at 21, 28

9

B. ; ; -

ee r Fi

Petitioner asserts that she has “left the practice of public

accounting” and “currently engages in the practice of law, as a sole

practitioner and provides legal services for her clients not provided

by CPAs.” Petitioner's Initial Brief at 3, 4. Petitioner also admits,

however, that she, “is, in fact, a licensee subject to the rules of the

Board of Accountancy. .. . Like every licensed CPA in Florida,

[Petitioner] is obviously regulated by the Board.” |g, at 28, 18.

The Department submitted clear and convincing evidence that as a

licensee Petitioner is engaged in deceptive and misleading advertis-

ing in the practice of public accounting by: (a) providing one or

more types of accounting or management advisory services to the

public, (b) holding out to the public that she is a CPA, and (c)

rendering such services as an employee in an unlicensed firm in

violation of Florida law.

As to the first element, Petitioner admits that she currently

provides services that CPAs provide and that she provided these

same services when she worked as a CPA at the accounting firms

of Coopers & Lybrand and Main Hurdman. These services include

representing clients before the Internal Revenue Service, providing

tax opinions, evaluating the tax consequence of certain transactions,

as well as providing financial and estate planning. Petitioner's

Initial Brief at 4. These services require that she analyze financial

statements and give opinions based thereon. (R. 0460) All of these

services involve the provision of accounting skills or management

advisory or consulting services to the public. Petitioner utilizes her

accounting education and skills and provides services that she

10

performed while practicing as a CPA for CPA firms. (R. 0461,

0464-66, 1225).

The fact that the same services can be provided by lawyers and

CPAs, or even unlicensed persons, does not mean that the services

are not accounting services; rather, it means that the licensee, when

holding herself out as being dually licensed to perform these

services in both capacities, remains subject to the licensure and

discipline of both regulatory authorities. (R. 0554, 0621, 0671)

See, ¢.g., Goldberg, A Lawyer's Multiple Occupations, 6 Wake

Forest Intramural L. Rev. 191, 197 (1970).° Dual licensure is a

common occurrence in Florida with many practitioners operating

under both licenses. (R. 0309-10, 0685) It simply requires that

the licensee comply with the more restrictive licensure standard in

those instances where the professions have different requirements.

(R.0671)’

As to the second element, Petitioner also admits to holding

herself out to the public as a CPA when providing public accounting

services. When asked whether she was holding herself out to the

*In its brief, Amicus Curiae The Florida Bar recognizes the possibility

of dual licensure, but argues that Petitioner is advertising her status only

for biographical reasons. |d. at 7, 8, 12 0.5. The Board's Final Order

reached a contrary conclusion. (Recommended Order, J.A. 156; Final

Order, J.A. 184)

"The Florida Bar states it is a violation of their rules for lawyers not

to hold out to their clients they are CPAs. Unfortunately, the Florida Bar

did not participate in the proceeding below so that their assertions could

be examined. However, there appear to be hundreds, if not thousands, of

Florida lawyers who are CPAs who do not engage in the practice of

holding out to the public they are CPAs. Therefore, if the Bar is correct,

it seems strange that there is not one reported case of the Bar having

disciplined a lawyer for not informing their client they are a CPA. The

record below does show, however, that many lawyers who hold themselves

out to their clients as CPAs are properly licensed to do so. (R. 0685)

public as a CPA, Petitioner stated: “So, if you're asking me am I

holding out as a CPA -- for identification purposes, yes, I identify

to the world I am a CPA.” (J.A. 68; see also R. 0180, 0426,

0649: Petitioner's Initial Brief at 10) Petitioner testified that her

clients considered it "extremely valuable” that she have an active

CPA license and that she believed it was valuable for her to hold

herself out to the public as a CPA:

It is a series of things. For example, when I do repre-

sentational work before the IRS, most of the clients that

come to me and want an attorney for representation

before the IRS they find that the fact that I hold a CPA

license and worked for many years as a public accoun-

tant makes me--endows me with the ability to really

understand the tax returns and defend the legal principles

and advocate my client's position. So they feel that is an

enhancement, that education baggage or those education

marks that I have earned and worked so hard for.

(R. 0442-43; see also R. 0456, 0522)

Under the attorneys section in the yellow pages, Petitioner

advertises her professional employment as “Ibanez, Sylvia S. CPA,

CFP." (R. 1224) Under the white pages, Petitioner advertises her

professional employment as “Ibanez, Sylvia S., CPA CFP ATTY.”

(R. 1224) In addition, Petitioner's business card states “Sylvia

Safille Ibanez, J.D., CPA, CFP." (R. 1224) Although Petitioner

disputes the efficacy of this advertisement, she admits that it would

have an adverse impact on her practice if she were to stop advertis-

ing that she holds a CPA certificate. (R. 0456)

Petitioner and Amici Curiae argue that because she is not

listed in the yellow pages under “public accountants” and because

her law office only advertises the fact that she is a lawyer, this

somehow negates her advertisements. The fallacy of this argument

12

is plain. The record shows that her advertisements were successful

and that she has managed to convey to her clients and “the world"

that she is a CPA. (R. 0456) The fact that Petitioner has chosen

to refrain from advertising in one place while actively advertising

in another does not diminish or remove the fact that she advertises

to the public that she is a CPA. In the yellow pages listing under

“attorneys,” any member of the public seeking an attorney with

public accounting skills would see her listing and believe that

Petitioner is offering both legal and public accounting professional

services.

Under no circumstances should Petitioner be permitted to

advertise her availability to provide CPA services and then avoid

the application and regulation of Chapter 473 by promising to dis-

claim otherwise. Such disclaimers in conjunction with a yertising

would constitute “bait and switch,” be inherently misleading, and

should be prohibited. Fla. Stat. § 473.323(g) (1993).

The Final Order found that potential clients "would clearly see

respondent's use of the title "CPA’ in her advertisements as an

inducement to contact Petitioner and seek her services thinking that

she was a licensee subject to the rules of the Board of Accountan-

cy.” (J.A. at 189) The reason for this is obvious:

The use of the term “CPA” impli i -

cy to the public. The fact an eg pee ty se

uable to her legal clients. CPA status is a valuable

property right to each CPA, and the ability of the prac-

ticing attorney to publicize the fact that s/he holds an

active CPA license is a valuable asset to that individual.

(Recommended Order, J.A. 153)

13

Petitioner's advertisements communicate to the public that she

is currently licensed as a CPA and is in compliance with the related

technical and educational requirements. (Final Order, J.A. 180)

To every member of the public who sees these advertisements, she

is holding herself out as being competent, in good standing, and

subject to the requirements for such professionals in providing

public accounting services. However, to the Board of Accountancy,

she says she is not practicing public accounting and will not comply

with the laws related thereto. (J.A. 70).

The Department also presented testimony from Dean

Dennison, Chairman of the Board of Accountancy and an expert in

public accounting:

If the public that’s out there being served identifies a

service or received a service, advice, counsel, whatever,

from a person who does hold themselves out as a CPA,

I think they have a right to expect that they [the CPA]

would be disciplined and subject to the chapters that

govern any CPA that holds themselves out.

If the individual totally disassociates himself, even

though he may keep his credentials current, if he or she

disassociates herself with the identification of a CPA and

they are there doing those other business activities and

the public has no reason to believe that they are in any

way holding themselves out, then I think the public

doesn’t have the same expectation for that person who

has not held themselves out as a CPA, therefore, they

are not expecting any more competency than anybody

else, no matter what their licensure may be.

14

(R. 0659-60)’ The Department, therefore, established by

clear and convincing evidence that Petitioner is engaged in the

practice of public accounting by providing public accounting ser-

vices while holding herself out to the public as aCPA. (J.A. 180)

As to the final element, licensure of her firm, Florida also

requires, as part of its regulatory requirements, that CPAs license

their professional service corporations and partnerships with the

State. Fla. Stat. §§ 473.309, 473.3101 (1991). There is no dispute

that Petitioner has not licensed her firm in accord with the above

provisions. Petitioner’s Initial Brief at 21, 28. Contrary to

Petitioner's arguments, the Department is not “hypothesiz[ing] that

. . . [Petitioner] may run afoul of the Board’s rules," -- Petitioner

has run afoul of the Board’s rules. Petitioner’s Initial Brief at 21.

By engaging in the practice of public accounting, Petitioner is

required to comply with all of Florida’s licensure regulations,

including licensing her firm pursuant to sections 473.309 and

473.3101, Florida Statutes.

Petitioner argues that, “there is no evidence in the record as

to why she should license the law firm as a CPA firm," and that her

failure to license her firm “has no bearing on the fact that Petitioner

is entitled to advertise that" she is a CPA. Petitioner’s Initial Brief

at 18, 28. Because Petitioner trades upon the fact that she is a

CPA, provides services that she admits are public accounting

services, and profits as a result thereof, she is engaged in the

practice of public accounting and must comply with Florida’s laws

"The Department also presented the testimony of Louis W. Dooner, an

expert in public accounting, who similarly testified that by advertising her

CPA status while providing accounting services, Petitioner was engaged

in the practice of public accounting. (J.A. 17-27)

15

regarding licensure. “[T)here is no arbitrary deprivation of [the

right to continue to pursue a lawful occupation] where its exercise

is not permitted because of a failure to comply with conditions

imposed by the state for the protection of society.” Dent v. West

Virginia, 129 U.S. 114, 122 (1889). Although she disagrees, those

activities clearly bring her within Florida’s definition of the practice

of public accounting, and thus the requirement that she license her

firm.

Accordingly, the Final Order entered by the Board correctly

determined that Petitioner engaged in deceptive and misleading ad-

vertising in violation of subsections 473.323(1)(a), (f), (g), and (h),

Florida Statutes, and Rule 21A-24.001, Florida Administrative

Code, by holding out that she is a CPA and rendering public

accounting services as an employee of an unlicensed firm. (J.A.

194) The First Amendment, for the reasons set forth below, does

not shelter Petitioner's clear violation of Florida law.”

— {oT ios the Fiest_ Amend

In order to shoehorn her claim into a First Amendment claim,

Petitioner argues that Florida’s provisions constitute a total ban on

the disclosure of truthful, biographical information as to her profes-

*Petitioner also argues that her failure to license her firm is irrelevant,

“considering that the Board did not charge Ibanez with practicing in an

unlicensed CPA firm." Petitioner's Initial Brief at 32. Contrary to

Petitioner's statement, Petitioner was charged with practicing in an unli-

censed firm. Although dismissed for being filed too late in the proceed-

ings, it still formed the underlying factual basis for the charge of deceptive

and misleading advertisements by advertising her CPA status while

practicing public accounting as an employee of an unlicensed firm.

16

sional credentials, which disclosure is constitutionally protected

commercial speech under the First Amendment.

Nothing could be further from the truth. Having been granted

her CPA certificate, Petitioner is free to advertise and disclose that

Status so long as she complies with the requirements of Chapter

473. Before this Court, she apparently has no problem in comply-

ing with Chapter 473’s requirements. See Petitioner's Initial Brief,

at 28, 18. In the lower proceedings, however, Petitioner strenuou-

sly objected to complying with Florida’s requirements, arguing that

she is not engaged in activity that would bring her within Chapter

473, that she is not subject to Chapter 473, and that she would not

comply with its provisions. "I’m not practicing public accounting.

I'm practicing law. So, why should they try to use those standards

or that rule to measure my activities in the practice of law? I don’t

see it.” (J.A. 70; see also J.A. 80, 93, 106; R. 425, 448) For the

reasons set forth above, Petitioner is engaged in the practice of

public accounting and is subject to Chapter 473’s provisions. The

First Amendment protection for commercial speech does not include

protecting Petitioner’s right to advertise as a CPA when in fact she

has not complied with the requirements for being a CPA.

This Court applies a four-part test for determining the

constitutionality of governmental regulations of commercial speech.

Central Hudson Gas & Elec, Corp. v. Public Serv. Comm'n, 447

U.S. 557 (1980). In its Final Order, the Board applied that test

“That test requires first, that the speech at issue concern a lawful

regulation

directly advance the asserted governmental interest; and fourth, that the

regulation be no more extensive than necessary to advance such interests.

Central Hudson, 447 U.S. at 566.

17

to Petitioner's advertisements to find its regulation constitutional

under the First Amendment.

There can be no doubt that Petitioner fails the first element of

the test in that Petitioner is unlawfully practicing public accounting

by practicing in an unlicensed firm. No First Amendment protec-

tion exists for unlawful or deceptive activities, including Petition-

er’s. “The First Amendment . . . does not prohibit the State from

insuring that the stream of commercial information flow(s] cleanly

as well as freely.” Virginia State Bd. of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc,, 425 U.S. 748, 771-72 (1976). The

regulation prohibits deceptive conduct. Petitioner's refusal to

register her firm while at the same time soliciting new accounting

business as a CPA constitutes deceptive conduct. It is inherently

misleading for Petitioner to advertise her status as a licensee,

perform work associated with that license, and then refuse to be

bound by the licensure and regulatory requirements for that license.

The First Amendment does not prohibit states from restricting such

deceptive conduct.

Directly analogous are cases which have restricted non-CPAs

from advertising their services as public accountants. In Accoun-

tant’s Soc, of Va. v. Bowman, 860 F.2d 602 (4th Cir. 1988), the

court stated:

The state has an interest in assuring the public that only

persons who have demonstrated their qualifications as

certified public accountants and received a license can

hold themselves out as certified public accountants... .

We believe that use of the title “public accountant” by a

non-CPA fairly could be characterized as inherently

misleading, given the possibility, accurately stated by the

district court, that "some members of the public would

believe the title . . . has the state’s imprimatur.”

Id, at 605.

Courts have a similar conclusion for other professions.

Recently, in Grandee vy. Glaser, 785 F. Supp. 684 (S.D. Ohio

1992), the court found the use of the term “audiologist” by hearing

aid fitters to be inherently misleading:

[T)he court believes that the use of the term “audiolo-

gist” by a hearing aid dealer is likely to materially

deceive or mislead consumers as to the dealer’s educa-

tional level. Such deception is “material” in that it is

likely that consumers would find the educational level of

such an individual an important consideration, and one

that would most likely affect a choice... .

Id, at 691.

To the extent that Petitioner is seeking to trade upon her CPA

license to obtain professional employment while at the same time

refusing to comply with Chapter 473 for the provision of those

services, this case is no different from the legion of cases which

have prevented non-licensed individuals from holding themselves

out as being licensed. See, ¢.g., Florida Acct, Ass’n v. Dandelake,

98 So. 2d 323 (Fla. 1957); Florida Bar v. Brumbaugh, 355 So. 2d

1186 (Fla. 1978).

If Petitioner’s activities are not found to be unlawful or

inherently misleading, the second element requires that the State’s

interest be substantial. The State’s interest in preventing a licensee

from violating regulations imposed by the State and in preventing

misleading advertisements is unquestionably substantial. “For

purposes of that test, there is no question that Florida’s interest in

ensuring the accuracy of commercial information in the marketplace

is substantial.” Edenfield v. Fane, 507 U.S. __, 123 L. Ed. 2d

19

543, 554, 113 S. Ct. 1792 (1993). This Court has recognized that,

if not inherently misleading, then it is clearly potentially misleading

for a licensee to advertise that one is “certified,” but yet not be

subject to state regulation. See Peel vy, Atty, Registration and Disci-

plinary Comm'n, 496 U.S. 91 (1990)(Marshall, J., concurring).

The State’s interest in preventing potentially misleading advertise-

ments is substantial.

The third element requires that the regulation directly advance

the governmental interest. This requires the State to "demonstrate

that the harms it recites are real and that its restrictions will in fact

alleviate them to a material degree.” Edenfield, 123 L. Ed. 2d at

555. By requiring CPAs to be subject to the State’s licensure and

regulations, the State is acting in a direct and causal manner to

further its interest of ensuring that those CPAs who hold themselves

Out as practicing public accountancy are indeed competent to do so.

Indeed, holding oneself out as a professional not only represents

that the individual has passed the necessary technical, educational

and licensure requirements imposed by the state for a license for

that particular profession, but also represents that the licensee is

subject to the continued requirements for that license and sanctions

for any violation. In fact, if Petitioner is not engaged in the

practice of public accounting, the Board has no regulatory authority

over her conduct or the quality of her work. Consumers who have

their tax returns prepared by a CPA have a right to know that such

regulatory authority is in place.

The fourth element, that there be a reasonable fit between the

regulation and the state’s interest, is met here. Florida simply

requires those who hold themselves out as CPAs and who provide

public accounting services remain subject to its licensure and regu-

20

lation. The regulation is directly tied to the State's interest in

maintaining standards in the practice of accounting and is no more

extensive than necessary. Contrary to Petitioner's argument, Flori-

da’s regulation does not constitute a total ban on her advertisements.

The restriction is tailored narrowly so as to permit Petitioner to

advertise her license, so long as she complies with Chapter 473. As

such, Florida’s regulation passes the fourth element. See Board of

Trustees of the State Univ, of N.Y. v, Fox, 492 U.S. 469 (1989).

The State seeks to ensure responsible and truthful advertising.

Petitioner freely admits that she seeks to append the CPA after her

name because her status as a CPA is valuable to her clients and that

her practice would suffer if she could not. It should be axiomatic

that when she holds herself out in her current professional practice

as a CPA performing services which constitute public accounting

services, Petitioner necessarily holds herself out not only as a CPA,

but also as a CPA licensed and regulated by the State in that

capacity.

Petitioner and Amici Curiae, however, argue that this Court's

decision in Peel grants her the right to advertise her certificate as

truthful, biographical information. First, Florida does not prohibit

the disclosure of CPA status where the intent is to provide bio-

graphical information. The record reflected that procedures have

been established by the Board to permit the disclosure of that infor-

mation. (R. 0236, 0624-25) Petitioner simply chose not to utilize

those procedures. Florida's regulation, therefore, does not con-

stitute a total ban and Peel's concerns about truthful, biographical

information does not apply.

More importantly, Peel did not concern the right to advertise

such information where the certificate holder is not in compliance

21

with the standards for holding the certificate and, in fact, refuses to

comply. Contrary to Petitioner's and Amici Curiae’s argument, a

CPA certificate is not simply an “attainment”; rather, it is a profes-

sional license with concomitant responsibilities and regulations.

"[T}he CPA mark is clearly meaningful and denotes State licensure

status as a licensed CPA.” Petitioner's Initial Brief at 28. In these

circumstances, it would be misleading to permit the licensee to

advertise when the licensee does not comply, and refuses to comply,

with her regulatory responsibilities. Florida “has done no more

than require that commercial information about [accounting ser-

vices] ‘appear in such a form . . . as [is] necessary to prevent its

being deceptive."" Friedman vy, Rogers, 440 U.S. 1, 16 (1979)

(citation omitted).

Petitioner also argues that the Florida Legislature has granted

CPAs the absolute right to advertise their CPA status, asserting that

the legend on her CPA certificate provides that the recipient, “has

passed all examinations and has met all other requirements pre-

scribed by law and by rule of this Board for certification as an

expert public accountant and is therefore entitled to append the

letters CPA after this registrant's name to evidence registration by

this Board as a Certified Public Accountant.” (R. 0088) Under no

circumstances can the State's authorization for Petitioner to display

her CPA license somehow operate to deprive the State of its

continued licensure and regulation of Petitioner, including any

advertisement of her CPA license. The CPA certificate is, of

course, only evidence of a license and does not grant rights in and

of itself. Petitioner errs in arguing that having been granted CPA

status, the State thereafter lacks the ability to withdraw it or to

regulate the manner in which it may be displayed.

22

For the foregoing reasons, the State's imposition of sanctions

upon Petitioner for violating statutory provisions relating to li-

censure of professional service corporations is not a violation of the

First Amendment.

D. ;, : '

———--\ + -7 ing by the Use of a Title A

Like most states, Florida regulates public accountancy through

a “Title Act.” Florida's definition of the practice of public account-

ing is the same as that set forth in the Uniform Accountancy Act.

See American Institute of Certified Public Accountants & National

Association of State Boards of Accountancy, Uniform Accountancy

Act, Section 3(g), 1 C.C.H. Acct. L. Rotr. 4 1035. The American

Institute of Certified Public Accountants has adopted a similar

definition. See AICPA, Code of Professional Conduct, | C.C.H.

Acct. L. Rotr. { 1066.

In addition to Florida, a number of other states have adopted

the Model Act’s definition. See, e.g., Conn. Gen. Stat. Ann. § 20-

279(b)(7) (West 1993); Haw. Rev. Stat. § 466-3 (1992); Idaho

Code § 54-206(20) (Supp. 1993); lowa Code § 542C.2 (Supp.

1993); Me. Rev. Stat. Ann. tit. 32, § 12201 (West 1993); Mass.

Gen. L. Ann. Ch. 13 § 87A (Supp. 1993); Tex. Rev. Civ. Stat.

Ann. art 41A-1.2(a)(6)(A) (West Supp. 1994); Utah Code Ann.

§ 58-26-2(12) (Supp. 1993); Vt. Stat. Ann. tit. 26, § 13(7) (Supp.

1993); Wash. Rev. Code Ann. § 18.04.025(5S) (West 1994).

Another six states have adopted the Model Act’s definition of public

accounting in their administrative regulations. See Ark. Reg.

§ 1.12; D.C. Reg. § 2599; Ga. Comp. R. & Regs. r. 20-2-.11

(1978); Md. Regs. Code tit. 9, § 24.01.01(6)(a) (Supp. 1993); Neb.

23

Admin. R. & Regs., tit. 288, Ch. 3.001(16) (1989); 49 Pa. Code

§ 11.1 (1993).

Fifteen more states have enacted statutory or administrative

rule definitions of “the practice of public accounting” that also

include the term “holding out" and are similar to the definition in

the Model Act. See Rules and Regulations of the Mississippi State

Board of Accounting, 1 C.C.H. Acct. L. Rpts, 4 26,105(m); Okla.

Stat. tit. 59, § 15.1A(27) (1994); Ind. Code § 25-2-1-2(e) (1991);

La. Rev. Stat. Ann. § 37:72(1) (West 1994); Mich. Comp. Laws

Ann. § 339.702(1)(d) (West 1993); Minn. Stat. § 326.165(2) (West

1994); Mo. Code Regs. tit. 4, § 10-2.050(9)(A) (1993); Nev. Rev.

Stat. Ann. § 628.023 (Michie 1986); N.H. Rev. Stat. Ann. § 309-

A:1 (TV) (1992); N.M. Stat. Ann. § 61-28A-3.G & I (1993); NY.

Educ. Law § 7401 (McKinney 1993); N.C. Gen. Stat. § 93-1(2)(5)

(1993); Tenn. Code Ann. § 62-1-103(5) (1993); W. Va. Code § 30-

9-2 (1993); Wis. Stat. Ann. § 442.02 (1988).

Enacted to protect the public safety and welfare, title acts and

their requirements for licensure permit the state to provide addi-

tional competence in a field without completely occupying it. See,

¢.g., Gellhorn, Occupational Licensing~A Nationwide Delemma,

J. Acct. 39, 42-43 (Jan. 1960); Moore, The Purpose of Licensing,

4J.L. & Econ. 93, 104 (1961). Title acts are utilized for a wide

variety of services, including, for example, psychology. See, ¢.g..

Fischer, State Regulation of Psychologists, 58 Wash. U.L.Q. 639

(1980). All title acts, however, have as part of their regulation a

“holding out” requirement so that those who want to take advantage

of being a licensee can do so, subject to concomitant regulation,

while at the same time permitting those who either do not meet the

requirements or do not want to be subject to the regulation, to also

24

practice in that area so long as they do not “hold out" as possessing

a license.

Petitioner and Amici Curiae argue that regulation by the Board

is unnecessary because she is also subject to regulation by The

Florida Bar. The Board’s concerns, however, apply not just to

lawyers, but to any individual who holds themselves out as a CPA

and provides public accounting services. Florida's concerns apply

whether the CPA is an attorney or a bookkeeper. Suppose, for

example, a licensed CPA decides to limit their practice to the

preparation of tax returns. No license is required to provide this

service. Under Petitioner's argument, such a licensee could tell the

public that I am a CPA, “a truthful fact,” but tell the Board | am

not practicing public accounting. Absent a holding out requirement,

there is simply no workable definition of the practice of public

accounting. When a licensee holds out to the public they are a CPA

and provides public accounting serves, the Board seeks to assure

consumers that the CPA is subject to regulation in providing public

Petitioner’s challenge threatens the very foundation of title acts

and the states’ ability to utilize them effectively. If this Court

grants Petitioner the relief she seeks, the effect will be to eviscerate

the states’ ability to regulate through title acts. By assuring

consumers that practitioners in a licensed field have met certain

standards, the states have provided consumers with additional

information as to the standard of care and conduct that will be

provided. Permitting licensees to hold out that they are licensed but

deny they are subject to regulation, will require the public to engage

in additional research as to the standard of conduct and care that

will be applicable. This will result in an increase in consumer

25

confusion, not a reduction. Because the distinction between such

Statuses would be confusing, permitting licensees to hold out would

result in consumers receiving less protection. This Court should

therefore affirm the decisions below.

Il, THE STATE OF FLORIDA’S REGULATION OF THE

USE OF THE TERM "CERTIFIED" DOES NOT VIO-

LATE THE FIRST AMENDMENT.

A ; -

<: oy am ny blic A ing Servi

Count II of the Amended Administrative Complaint alleged

that Petitioner’s use of the CPA and CFP designations after her

name violated section 473.323(1)(f) and Rule 21A-24.001(i). The

Department also submitted clear and convincing evidence in support

of these allegations. The rule at issue prohibits the use by a CPA

of designations which contain the terms “certified,” “public,” or

“auditor” because the use of those terms in conjunction with CPA

is confusing and deceptive as implying state licensure.

In 1991, Florida’s Board of Public Accountancy adopted the

current version of Rule 21A-24.001(j), which allows licensees to

utilize certain designations with the disclosure of certain informa-

tion. However, in order to avoid obvious confusion with state

licensing requirements, the Board also adopted Rule 21 A-24.001(i),

which prohibits certified public accountants from using the use term

“certified” in connection with designations it has not approved.

Under the clear terms of the prohibition, Petitioner's use and

advertisement of her CFP status while engaging in the practice of

public accounting violated Rule 21A-24.001(i) and the Department

carried its burden of showing that Petitioner advertised her “CFP”

26

designation in violation of that Rule. (J.A. 36-40, 48) The First

Amendment does not shelter Petitioner’s intentional violation of

Florida law.

B. The State of Florida’s Regulation of the Use of the Term

CFP When the Term is Used by CPAs Does Not Viol

the First Amendment,

Under Central Hudson’s test, it is inherently misleading to

permit the use of designations which include the term “certified” in

conjunction with the term “certified public accountant.” When such

terms are used in conjunction with each other, their use will create

confusion in the minds of the public as to whether the other “certi-

fied" designation is licensed by the State. For that reason, the State

may limit its use so as not to be misleading.

If the use of that term is not inherently misleading, then the

second element requires that the State’s interest be substantial before

the State may prohibit the use of the term “certified.” In Peel,

Justice Marshall in his concurrence, noted that it would be potential-

ly misleading for a state to permit a CPA to advertise his CPA li-

cense in conjunction with another designation that contained the

term “certified,” as the public might understanc at as connoting

governmental authorization or certification. 496 U.S. at 113. This

is the State’s concern and it establishes the State’s substantial inter-

est in regulating the use of the term “certified” in conjunction with

the term CPA.

As to the third element, the prohibition directly advances the

State’s concerns. Because the terms CPA and CFP are similar

when used in conjunction with each other, the State may regulate

their use so as to limit the confusion that will be created in the

minds of the public as to which designations are licensed by the

27

State. The regulation directly advances that interest by regulating its

use.

With regard to the fourth element of Central Hudson, that the

regulation be no more extensive than necessary, Florida’s regula-

tions are carefully tailored. Since 1982, the Board has consistently

issued letter opinions that the designation “certified financial

planner" is an accountancy specialization which has not been ap-

proved by the Board. (Recommended Order, J.A. 157) Except

where prohibited by Rule 21A-24.00(1)(i), Rule 21A-24.001(1)(j)

permits a licensee to disclose any formal recognition as long as “the

statement contains a disclaimer stating that the recognizing agency

is not affiliated with or sanctioned by the state or federal govern-

ment ... [and that it] contain the agency’s requirements for

recognition, including, but not limited to, education, experience and

testing."'’ Petitioner errs in asserting that Florida’s regulation does

not permit the disclosure of information as required by Peel. See

Rule 21A-24.001(j). This rule meets the requirements of Peel.

Unfortunately, as with other requirements of Florida law, Petitioner

made no attempt to comply with the provisions of the statute.

Petitioners rely heavily upon Peel, which struck Arizona's

prohibition because the First Amendment allows the disclosure of

truthful information where disclaimers are available to address the

State’s concerns. However, because the Board has found the use of

the term "certified" to be contusing, it can only be used when

approved by the Board. As the Final Order noted, "no request has

ever been made for approval either by Respondent or by the parent

organization which awarded her the certificate..." (J.A. 194)

"It should be noted that Petitioner has not challenged the constitution-

ality of this provision.

28

Florida’s regulation, therefore, is narrowly tailored to its concerns

and permits alternatives which Petitioner chose not to pursue.

CONCLUSION

For the foregoing reasons, the decision of the First District

Court of Appeal of Florida should be affirmed.

Respectfully submitted,

KENNETH R. HART and

STEVEN P. SEYMOE of

MACFARLANE AUSLEY

FERGUSON & McMULLEN

Post Office Box 391

227 South Calhoun Street

Tallahassee, FL 32302

(904) 224-9115

March 30, 1993 Counsel for Amicus Curiae

Florida Institute of Certified

Public Accountants

29