00-003234PL Department Of Business And Professional Regulation, Board Of Accountancy vs. John C. Mese Status: Closed Recommended Order on Thursday, December 28, 2000.

Summary: Accountant`s conviction of attempted murder, money laundering, and forgery warrants license revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) Case No. 00-3234

)

JOHN C. MESE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 2, 2000, via telephone conference call, before

Florence Snyder Rivas, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David K. Minacci, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: John Carl Mese, pro se

Dade Correctional Institute

Suite 300, Unit H3108

19000 Southwest 377th Street

Florida City, Florida 33034

STATEMENT OF THE ISSUES

The issues are whether Respondent has been found guilty of

crimes directly relating to the practice of public accounting, in

violation of Section 473.323(1)(d), Florida Statutes; has

performed a fraudulent act while licensed to practice public

accounting, in violation of Section 473.323(1)(k), Florida

Statutes; has failed to maintain good moral character, in

violation of Section 473.323(l)(m), Florida Statutes; all as

charged in the Administrative Complaint dated May 23, 2000, and

if so what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 23, 2000, Petitioner

alleged that, on May 5, 1998, Respondent was found guilty of

numerous charges arising out of his participation in the

kidnapping and attempted murder of one Marcello Schiller.

Respondent was convicted of crimes which involve forcing Schiller

to sign blank checks which were later deposited into the

Respondent's operating and escrow accounts. Other documents

which Schiller was forced to sign were forged, fraudulently

notarized, or uttered by Respondent to other parties.

The Administrative Complaint alleges that the charges of

which Respondent was convicted directly relate to the practice of

public accounting or the ability to practice public accounting,

in violation of Section 473.323(1)(d), Florida Statutes.

Further, the Administrative Complaint alleges that these crimes

constitute the performance of a fraudulent act while licensed to

practice public accounting, in violation of Section

473.323(1)(k), Florida Statutes, and that they further

demonstrate a failure to maintain good moral character in

violation of Section 473.323(l), Florida Statutes.

Resp ondent timely requested a formal hearing.

At the hearing, Petitioner offered one exhibit, which was

received in evidence without objection. Respondent does not

dispute any of the material facts of this case.

The transcript was filed on December 6, 2000. Proposed

recommended orders were timely filed by the parties and have been

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all material times, Respondent, John C. Mese ( Mese)

has been licensed as a certified public accountant, holding

license number AC000247000. The record reveals no prior

discipline.

2. Mese is presently incarcerated in the Dade Correctional

Institute, having been convicted on May 5, 1998, in the Circuit

Court of the 11th Judicial Circuit of attempted first degree

murder; kidnapping, robbery and extortion with a firearm; nine

counts of money laundering; and 18 counts relating to forgery or

the uttering of forged instrument(s).

3. Mese was convicted of additional charges which were the

subject of a judgment notwithstanding the verdict entered by the

trial court on July 20, 1998.

4. Mese's appeal of the foregoing charges is, as of this

writing, pending in the Third District Court of Appeal.

5. From the time of his arrest through the present, Mese

maintains his innocence of all charges.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the subject matter. Section 120.57(1), Florida Statutes.

7. Section 473.323(3), Florida Statutes (2000), authorizes

Petitioner to discipline licensees or registrants in the State of

Florida and provides, in pertinent part, as follows:

(2) when the Board finds any licensee guilty

of any of the grounds set forth in subsection

(1), it may enter an order imposing one or

more of the following penalties: (a) Denial

of an application for licensure. (b)

Revocation or suspension of a license. (c)

Imposition of an administrative fine not to

exceed $5000 for each count or separate

offense. (d) Issuance of a reprimand. (e)

Placement of the licensee on probation for a

period of time and subject to such conditions

as the board may specify, including requiring

the licensee to attend continuing education

courses or to work under the supervision of

another licensee. (f) Restriction of the

authorized scope of practice by the certified

public accountant.

8. Section 473.323(1), Florida Statutes (2000), provides in

pertinent part, that the following acts constitute grounds for

which the disciplinary actions in subsection (3) may be taken:

(d) being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of public accounting or the ability

to practice public accounting.

(k) performing a fraudulent act while

holding a license to practice public

accounting.

(l) failing to maintain a good moral

character as provided in Section 473.306.

9. A jury verdict of guilty constitutes a "conviction"

within the meaning of Section 473.323(1)(d), Florida Statutes.

10. Rule 61H1-36.004, Florida Administrative Code, sets the

penalty guidelines for the violations charged, which include

imposition of a $5,000 fine per offense, and revocation of

license.

11. Because Petitioner seeks to revoke Mese's license, it

must prove the material allegations by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern and

Company, Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2nd 292 (Fla. 1987).

12. Petitioner has proved by c lear and convincing evidence

violations of Sections 473.323(1)(d), (k), and (l).

13. While admitting that he stands convicted of crimes

which constitute the violations charged in the Administrative

Complaint, Mese urges that the Petitioner stay its disciplinary

proceedings during the pendency of his appeal(s). He argues that

the District Court of Appeal may reverse his conviction, a hope

bolstered, in his mind, by the fact that the trial court entered

a judgment notwithstanding the verdict in his favor on several of

the counts upon which the jury convicted.

14. The law is to the contrary.

15. Petitioner's proof, and Mese's admission, that he

stands convicted of serious felonies, is ample justification to

take action against Mese's license. Ashe v. Department of

Professional Regulation, Board of Accountancy , 467 So. 2d 814

(Fla. 5th DCA 1985); Greenwald v. Department of Professional

Regulation , 501 So. 2d 740 (Fla. 3d DCA 1987); Rife v. Department

of Professional Regulation , 638 So. 2d 542 (Fla. 2d DCA 1994);

Department of Professional Regulation, Board of Accountancy v.

Leider , DOAH Case No. 90-6424; and Brogan v. Smith , DOAH Case

No. 94-6356 (Recommended Order December 26, 1997). It could not

be seriously argued that the crimes for which Mese is imprisoned

are unrelated to the practice of public accounting. Many of the

charges on which Mese was convicted constitute fraud, and each

charge belies good moral character.

16. Mese also suggested that the undersigned should review

the criminal trial record and make an independent determination

as to his guilt. Mese has not submitted the trial record, making

de novo review impossible. More to the point, the undersigned is

without power to "go behind" the jury's determination of guilt.

See The Florida Bar v. Vernell , 374 So. 2d 473 (Fla. 1979);

McGraw v. Department of State , 491 So. 2d 1193 (Fla. 1st DCA

1986); Burket v. State , 518 So. 2d 1363 (Fla. 1st DCA 1988);

Department of Health and Rehabilitative Services v. K. M. F. ,

DOAH Case No. 91-2910C (Final Order June 1, 1992); and Brogan v.

Smith , supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Accountancy enter a final

order finding Respondent guilty of violating the provisions of

Chapter 473.323(1), Florida Statutes (1994), as alleged in

Counts I, II, III, and IV of the Administrative Complaint; impose

a administrative fine of $5000; and revoke Respondent's license

with leave to reapply in the event his conviction is reversed or

the criminal charges are otherwise disposed of in Mese's favor.

DONE AND ENTERED this 28th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of December, 2000.

COPIES FURNISHED:

David K. Minacci, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

John Carl Mese

MI5699

Dade Correctional Institute

Suite 300, Unit H 3108

19000 Southwest 377th Street

Florida City, Florida 33034

Martha Willis, Executive Director

Division of Certified Public Accounting

Department of Business and

Professional Regulation

2610 Northwest 43rd Street, Suite 1A

Gainesville, Florida 32606

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order must be filed with the agency that will

issue the final order in this case.