Fla. Admin. Code R. 61H1-36.004

Current through Reg. 50, No. 119; June 18, 2024

Section 61H1-36.004 - Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

(1)

(a) The board sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon practitioners guilty of violating Chapter 473, F.S. The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties which will normally be imposed upon violations of particular provisions of Chapter 473, F.S. The disciplinary guidelines are based upon a single count violation of each provision listed. The brief description of each violation is provided for quick reference and is not meant to convey all elements of any given statutory provsion; the full language of each statutory provision cited must be consulted in order to determine the conduct involved. All penalties at the upper range of the sanctions set forth in the guidelines, i.e., suspension, revocation, etc., include lesser penalties, i.e., fine, probation or reprimand which may be included in the final penalty at the board's discretion.

(b) Standard probationary terms will include, as applicable, a review of the licensee's practice, including analysis of selected financial statements (including working papers), restriction of the scope of the licensee's practice and review of internal controls put in place by the licensee in order to eliminate the violation. All of the above will usually include the use of a CPA consultant employed by the Department of Business and Professional Regulation or approved by the Board and will usually require the licensee to assume the cost of the consultant's activities. Additional continuing education may also be required of a licensee where deficiencies in a particular practice area are noted. In all cases of probation or suspension a report showing compliance with the terms of the final order must be received and accepted by the Board prior to the termination of the probation or suspension. Other specific terms of probation or suspension may be imposed, as necessary, by the Board.

(2) The following disciplinary guidelines shall be followed by the board in imposing disciplinary penalties upon licensees for violation of the below mentioned statutes and rules:

VIOLATION	PENALTY RANGE
	MINIMUM	MAXIMUM
(a) Attempting to procure license by bribery or fraudulent misrepresentation (Sections 455.227(1)(h), 473.323(1)(b), F.S.)	Revocation and $5,000 fine if licensed (denial of license and refer to State Attorney if not licensed)
(b) CPA License disciplined by another jurisdiction (Sections 455.227(1)(f), 473.323(1)(c), F.S.)	Same penalty as imposed in other jurisdiction or imposition of same range of penalties as those set forth in those rules for the same type of violation
(c) Criminal conviction relating to accountancy (Sections 455.227(1)(c), 473.323(1)(d), F.S.)	Misdemeanor: Reprimand Felony: One (1) year suspension; two (2) year probation $5,000 fine	Reprimand and $5,000 fine and two (2) year probation one (1) year suspension Revocation and $5,000 fine
(d) Knowingly making or filing false report (Sections 455.227(1)(g), (1)(l), 473.323(1)(e), F.S.)	Reprimand one (1) year probation	Revocation and $5,000 fine Reprimand, one (1) year probation and $5,000 fine
(e) Fraudulent, false, deceptive or misleading advertising (Section 473.323(1)(f), F.S.) (Rule 61H1-24.001, F.A.C.)	$250 fine	$1,000 fine
(f) Incompetence (mental or physical impairment) (Section 473.323(1)(g), F.S.)	Suspension until ability to practice proved, followed by probation
(g) Fraud, deceit or misleading (Sections 455.227(1)(a), (m), 473.323(1)(g), (k), F.S.)	Reprimand, one (1) year suspension; two (2) years probation and $5,000 fine	$5,000 fine and revocation
(h) Negligence or misconduct (Section 473.323(1)(g), F.S.)	$250 fine	Reprimand and one (1) year probation (continuing Education and review of practice at licensee's expense and limited area of practice) and $5,000 fine
1.Technical standards and professional competence (Sections 455.227(1)(o), 473.315, F.S.) (Rule 61H1-21.006 and Chapter 61H1-22, F.A.C.)	Reprimand, probation, and $500 fine	Suspension and $5,000 fine
2. Lack of independence (sections 473.315, 473.3205, F.S.) (Rule 61H1-21.001, F.A.C.)	Reprimand, one (1) year probation with review of practice and continuing education	Revocation and $5,000 fine
3. Commissions and contingent fees (Rules 61H1-21.003, 61H1-21.005, F.A.C.)	Reprimand	One (1) year suspension, two (2) years probation and $2,500 fine
4. Client records disposition (Rule 61H1-23.002, F.A.C.)	$250 fine	Suspension until records are returned and $1,000 fine
(i) Practicing on suspended or revoked license (Section 473.323(1)(i), F.S.)	Revoke if previously suspended; refer to State Attorney if previously revoked
(j) Practicing on inactive or delinquent license (Sections 455.271, 473.323(1)(i), F.S.)	Reprimand and fine based on length of time in practice while inactive; $100/month or $5,000 maximum (penalty will require licensure or cease practice)
(k) Licensees practicing in an unlicensed firm (including sole proprietors) or otherwise in violation of (Sections 473.309, 473.3101, and 473.323(1)(g), F.S.) (Rule 61H1-26.001, F.A.C.)	Reprimand and $100 per maximum of $5,000 and suspension of right to practice until corrected
(l) Suspension or revocation of right to practice in front of any state or federal agency, including the Public Company Accounting Oversight Board. (Sections 455.227(1)(f), 473.323(1)(j), F.S.)	Same penalty as imposed by agency or imposition of same range of penalties as those set forth in those rules for the same type of violation
(m) Lack of Good Moral Character (Section 473.323(1)(l), F.S.)	Reprimand; and one year probation	Revocation
(n) Failure to pay fines or administrative cost imposed by final order or citations set for in Rule 61H1-36.005, F.A.C.	$100 per month late fee for every month the licensee is late to a maximum of $5,000	Revocation
(o) Violation of CE requirements (Sections 473.323(1)(a) by 473.312 or 473.323(1)(h), 455.227(1)(q), F.S., by Rule 61H1-33.003 and/or 61H1-33.0035, F.A.C.)	Reprimand, probation, make up missed CEs and penalty CEs	Suspension and $1,000 fine
(p) Violation of client Confidentiality (Section 455.227(1)(q), F.S., by Rule 61H1-23.001, F.A.C.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
(q) Misleading or deceptive name (section 473.321, F.S.)	Reprimand, probation, and $1,000 fine	Suspension and $1,000 fine
(r) Violation of Section 473.323(1)(a), F.S. by Section 473.322, F.S.:
1. Present license of another as one's own (Section 473.322(1)(d), F.S.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
2. Give false or forged evidence to Board or member thereof (Section 473.322(1)(e), F.S.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
3. Use or attempt to use license that has been suspended, revoked, or placed on inactive or delinquent status (Section 473.322(1)(f), F.S.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
4. Employ unlicensed persons to practice public accounting; aiding or assisting unlicensed practice public accounting (Section 473.322(1)(g), F.S.)	Reprimand, probation, and $1,000 fine	Suspension and $5,000 fine
5. Conceal information relative to violations of chapter 473, F.S. (Section 473.322(1)(h), F.S.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
(s) Failure to provide legally-required written disclosure to client or public (violation of Section 473.323(1)(m), F.S.	Reprimand, probation, and $1,000 fine	Suspension and $5,000 fine
(t) Violation of Section 473.323(1)(a), F.S., by Section 455.227(1), F.S.:
1. Improper influence on client (Section 455.227(1)(n), F.S.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
2. Improper delegation of professional responsibilities (Section 455.227(1)(p), F.S.)	Reprimand, probation, and $1,000 fine	Suspension and $5,000 fine
3. Improper interference with investigation or disciplinary proceeding (Section 455.227(1)(r), F.S.)	Reprimand, probation, and $1,000 fine	Revocation and $5,000 fine
4. Failure to perform statutory/legal obligations (Section 455.227(1)(k), F.S.)	Reprimand, probation and $1,000 fine	Suspension and $1,000 fine
(u) Failure to maintain current address (violation of Sections 455.275, 455.227(1)(q), and 473.323(1)(h), F.S., by violating Rule 61H1-26.005, F.A.C.)	Reprimand and $500 fine	Suspension and $1,000 fine
(v) Violation of Sections 473.323(1)(h) and 455.227(1)(q), F.S., by Rule 61H1-25.001, F.A.C. Same as subparagraph (t)2.	Reprimand, probation, and $1,000 fine	Suspension and $5,000 fine
(w) Minimum capital (violation of and Sections 455.227(1)(q) and 473.323(1)(h), F.S., by Rule 61H1-26.002, F.A.C.)	Reprimand, probation, $1,000 fine and corrective action. Must document required capital	Suspension and $1,000 fine
(x) Licensure of firm names and changes (violation of Sections 455.227(1)(q) and 473.323(1)(h), F.S., by Rules 61H1-26.003 and 61H1-26.004, F.A.C.)	Reprimand, probation, $100/ month fine and corrective action. Must document licensure	Suspension and $1,000 fine
(y) Failure to report discipline violation (Section 455.227(1)(i), F.S.)	Reprimand, probation, and $1,000 fine	Suspension and $5,000 fine
(z) Failure to timely report being convicted or found guilty of, or entering a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction (more than 30 days late) (Section 455.227(1)(t), F.S.)	Reprimand	Suspension and $5,000 fine
(aa) Failure to obtain continuing professional education hours (section 473.312, F.S., Rule 61H1-33.003, F.A.C.)
First Offense
NUMBER OF HOURS LACKING	Minimum	Maximum
1 to 16 hours	$1,000 fine, mandatory CPE audit participation for the next two re-establishment periods, and within 90 days of final order, makeup missing hours plus 20 additional penalty hours in the same category as those missed. If missing hours are ethics, penalty hours would consist of accounting/auditing.	$2,000 fine, mandatory CPE audit participation for the next two re-establishment periods, and within 90 days of final order, makeup missing hours plus 20 additional penalty hours in the same category as those missed. If missing hours are ethics, penalty hours would consist of accounting/auditing.
17 to 80 hours	$1,000 fine, makeup missing hours plus additional penalty hours equal to the number of those missed in the same category as those missed, suspension until all hours are completed, and mandatory CPE audit participation for the next two re-establishment periods.	Suspension, $5,000 fine, makeup missing hours plus additional penalty hours equal to the number of those missed and within same category as those missed, and mandatory CPE audit participation for the next two re-establishment periods.
Second Offense
NUMBER OF HOURS LACKING
1 to 16 hours	$2,000 fine, mandatory CPE audit participation for the next two re-establishment periods, makeup missing hours plus 20 additional penalty hours in the same category as those missed. If missing hours are ethics, penalty hours would consist of accounting/auditing. Suspension until all hours are completed.	$5,000 fine, mandatory CPE audit participation for the next two re-establishment periods, makeup missing hours plus 20 additional penalty hours in the same category as those missed. If missing hours are ethics, penalty hours would consist of accounting/auditing. Suspension until all hours are completed.
17 to 80 hours	$2,500 fine, makeup missing hours plus additional penalty hours equal to the number of those missed in the same category as those missed, suspension until all hours are completed, and mandatory CPE audit participation for the next two re-establishment periods.	Suspension, $5,000 fine, makeup missing hours plus additional penalty hours equal to the number of those missed, in the same category as those missed, and mandatory CPE audit participation for the next two re-establishment periods.
(bb) Fraudulent renewal of a license (section 473.312, F.S., Rule 61H1-33.003, F.A.C.)	Suspension, $5,000 fine, makeup missing hours plus additional penalty hours equal to the number of those missed and in the same category as those missed, and mandatory CPE audit participation for the next two re-establishment periods.	Revocation and up to $5,000 fine.
(cc) Failure to enroll in peer review program when required (sections 473.323(1)(a) and 473.3125(4), F.S.)	Suspension until enrollment and a reprimand	Revocation and $5,000 fine
(dd) Utilizing CPA designation without an active license (Section 473.323(1)(a), F.S., through a violation of section 473.322(1)(b), F.S.)	Reprimand, completion of four penalty hours of Board-approved ethics continuing professional education hours	Suspension and $5,000 fine
(ee) Performing work described in sections 473.302(8)(a), (d), F.S., (e.g. - audits, reviews, compilations, or attestation engagements) without an active individual and/or firm license (section 473.323(1)(a), F.S., through a violation of section 473.322(1)(c), F.S.)	Reprimand, $5,000 fine, completion of four penalty hours of Board-approved ethics, and eight penalty hours of Accounting and Auditing continuing professional education hours.	Suspension, $5,000 fine, and completion of eight penalty hours of Accounting and Auditing continuing professional education hours.

(3) The Board shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence presented to the Board prior to the imposition of a final penalty.

(a) Aggravating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the enhancement of a penalty beyond the maximum level of discipline in the guidelines shall include but not be limited to the following:

1. History of previous violations of the practice act and the rules promulgated thereto.

2. In the case of negligence; of the magnitude and scope of the engagement and the damage inflicted upon the general public by the licensee's misfeasance.

3. Evidence of violation of professional practice acts in other jurisdictions wherein the licensee has been disciplined by the appropriate regulatory authority.

4. Violation of the provision of the practice act wherein a letter of guidance as provided in Section 455.225(3), F.S., has previously been issued to the licensee.

5. Multiple convictions of violations of the same provision of Chapter 473, F.S., or the rules promulgated thereto contained in the same administrative complaint.

(b) Mitigating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the lessening of a penalty beyond the minimum level of discipline in the guidelines shall include but not be limited to the following:

1. In cases of negligence, the minor nature of the engagement in question and lack of danger to the public health, safety and welfare resulting from the licensee's misfeasance.

2. Lack of previous disciplinary history in this or any other jurisdiction wherein the licensee practices his profession.

3. Restitution of any damages suffered by the licensee's client.

4. The licensee's professional standing among his peers including continuing education.

5. Steps taken by the licensee or his firm to insure the non-occurrence of similar violations in the future.

6. The degree of financial hardship incurred by a licensee as a result of the imposition of fines or the suspension of his practice.

7. Cooperation with the Department of Business and Professional Regulation and the Board including understanding and admission of the violation by the Respondent.

Fla. Admin. Code Ann. R. 61H1-36.004

Rulemaking Authority 455.2273, 473.304, 473.323 FS. Law Implemented 455.2273, 473.323 FS.

New 1-7-87, Amended 9-16-87, 8-25-88, 6-18-91, 12-30-91, Formerly 21A-36.004, Amended 12-7-93, 5-23-94, 8-16-99, 1-31-05, 7-28-10, Amended by Florida Register Volume 41, Number 077, April 21, 2015 effective 5/6/2015, Amended by Florida Register Volume 41, Number 179, September 15, 2015 effective 9/30/2015, Amended by Florida Register Volume 43, Number 015, January 24, 2017 effective 2/6/2017, Amended by Florida Register Volume 44, Number 011, January 17, 2018 effective 1/31/2018, Amended by Florida Register Volume 44, Number 109, June 5, 2018 effective 6/18/2018, Amended by Florida Register Volume 45, Number 196, October 8, 2019 effective 10/24/2019, Amended by Florida Register Volume 48, Number 199, October 12, 2022 effective 10/30/2022, Amended by Florida Register Volume 48, Number 203, October 18, 2022 effective 10/30/2022.

New 1-7-87, Amended 9-16-87, 8-25-88, 6-18-91, 12-30-91, Formerly 21A-36.004, Amended 12-7-93, 5-23-94, 8-16-99, 1-31-05, 7-28-10, 5-6-15, 9-30-15, 2-6-17, 1-31-18, 6-18-18, 10-24-19, 10-30-22.