01-002598PL Department Of Business And Professional Regulation, Board Of Accountancy vs. Robert Jarkow
 Status: Closed
Recommended Order on Tuesday, December 4, 2001.


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Summary: Delay in prosecuting case did not prejudice Respondent and does not support laches. If anything, Respondent benefited from lack of witnesses.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16BOARD OF ACCOUNTANCY, )

20)

21Petitioner, )

23)

24vs. ) Case Nos. 01 - 2597PL

31) 01 - 2598PL

35ROBERT JARKOW, )

38)

39Respondent. )

41____________________________ _____)

43RECOMMENDED ORDER

45Pursuant to notice, a formal hearing was held in

54this case by video teleconference on September 11, 2001,

63with the parties appearing from Miami, Florida, before J.

72D. Parrish, a designated Administrative Law Judge of the

81Divisio n of Administrative Hearings.

86APPEARANCES

87For Petitioner: Charles F. Tunnicliff, Esquire

93Department of Business and

97Professional Regulation

991940 North Monroe Street, Suite 60

105Tallahass ee, Florida 32399 - 2202

111For Respondent: Victor K. Rones, Esquire

117Law Offices of Rones & Navarro

12316105 Northeast 18th Avenue

127North Miami Beach, Florida 33162

132STATEMENT OF THE ISSUE

136Whether the Resp ondent committed the violations

143alleged in the A dministrative C omplaint dated February 5,

1531999, and, if so, what penalty should be imposed. The

163Respondent maintains that the instant action is barred by

172laches and violates Section 455.225, Florida Statutes .

180PRELIMINARY STATEMENT

182On February 5, 1999, the Petitioner, Department of

190Business and Professional Regulation (Department) on

196behalf of the Board of Accountancy filed an

204Administrative Complaint against the Respondent, Robert

210Jarkow. The complaint alle ged that the Respondent had

219violated Florida law in connection with accounting work

227performed for Sound Advice, Inc. Respondent disputed the

235allegations of fact in that matter and requested a formal

245hearing. When the case was referred to the Division of

255Administrative Hearings for formal proceedings it was

262assigned DOAH Case No. 01 - 2597PL.

269A second case, DOAH Case No. 01 - 2598PL, was also

280referred to the Division of Administrative Hearings

287regarding this Respondent. The Administrative Complaint

293in DOAH Ca se No. 01 - 2598PL was also filed by the

306Department on February 5, 1999. The two counts of this

316case alleged violations stemming from accounting work

323performed for an individual named Kasman who operated a

332company known as "Traditions Workshop, Inc."

338The two cases were consolidated for hearing by order

347entered July 16, 2001. Thereafter the matter was

355scheduled for final hearing.

359At the hearing, the Petitioner announced its

366intention to dismiss the allegations found in DOAH Case

375No. 01 - 2597PL. According ly, that case is hereby closed.

386All findings therefore relate to the allegations

393found in DOAH Case No. 01 - 2598PL. The evidence has been

405considered only as to issues set forth in that case.

415The Petitioner presented testimony from Thomas

421Reilly, a certifie d public accountant who was accepted as

431an expert in accounting and auditing; and Marlyn Felsing,

440also an expert in accounting. The Petitioner's E xhibits

449numbered 1 and 2 were admitted into evidence.

457The Respondent testified in his own behalf.

464Responden t's E xhibits numbered 1 and 2 were admitted into

475evidence.

476Official recognition has been taken of the

483provisions of Chapter 61H1, Florida Administrative Code,

490as well as the Codification of Statement on Standards for

500Accounting and Review Services (SARS) as referenced by

508the parties.

510The transcript of the proceedings was filed on

518October 18, 2001. T hereafter, the Petitioner requested

526additional time to file a Proposed Recommended Order.

534Such motion was granted by order entered October 24,

5432001. Petitio ner's second motion for an extension of

552time to file a proposed order is hereby granted.

561The parties filed proposed orders that have been

569fully considered in the preparation of this Recommended

577Order. The Petitioner's proposed order was filed with

585the D ivision of Administrative Hearings on November 9,

5942001.

595FINDINGS OF FACT

5981. Petitioner is the state agency charged with the

607responsibility of regulating the practice of certified

614public accountants licensed within the state.

6202. At all times material to t he allegations of this

631case, the Respondent, Robert Jarkow, has been licensed in

640Florida as a certified public accountant, license number

648AC0010963.

6493. On or about December 1996, the Respondent orally

658agreed to provide accounting services for an individua l

667named Kasman who was doing business as Traditions

675Workshop, Inc. (Traditions).

678aditions manufactured uniforms and listed the

684federal government among its clients. Revenues to the

692company from the sale of uniforms were presumably posted

701in accordan ce with written contracts.

7075. Although the Respondent participated in the

714monthly completion of financial records for the company,

722the exact description of his responsibilities for the

730company and the individual are not known.

7376. It is undisputed tha t Ms. Kasman asked the

747Respondent to provide a financial statement for the

755company as part of an effort to secure a line of credit

767from a bank in New York. It is also undisputed that Ms.

779Kasman refused to pay for the statement. According to

788the Responden t, based upon that refusal, he declined to

798prepare the instrument.

8017. Nevertheless, a document entitled "Financial

807Statements" was generated with a notation "MANAGEMENT USE

815ONLY - NOT FOR DISTRIBUTION." The Respondent maintains

823that the document was not prepared as a financial report

833and that if generated using his data disk it was done

844without any intention on his part for the product being

854used to secure a line of credit.

8618. The document did not comply with provisions of

870accounting practice.

8729. The Re spondent admitted that when his

880relationship with the party deteriorated, and payment for

888services was not rendered, he did not release information

897to a succeeding accountant.

90110. Ms. Kasman needed the information, depreciation

908schedules, in order to ac curately complete tax records

917for Traditions.

91911. The Respondent attempted to locate Ms. Kasman

927and her bookkeeper for hearing but was unable to do so.

93812. Ms. Kasman filed a complaint with the

946Petitioner against the Respondent that was not

953investigate d until several months after it was filed.

962The Respondent obtained a civil judgment against

969Traditions for unpaid accounting fees.

97413. The Administrative Complaint filed in this case

982was submitted over a year after the consumer complaint.

99114. Neither party presented testimony from the

998complainant, her bookkeeper, or her succeeding

1004accountant.

1005CONCLUSIONS OF LAW

100815. The Division of Administrative Hearings has

1015jurisdiction over the parties to and the subject matter

1024of these proceedings. Section 120.57, Florida Statutes.

103116. The Petitioner bears the burden of proof in

1040this case to establish by clear and convincing evidence

1049the violations alleged to have been committed by this

1058Respondent. While the Petitioner has established that

1065the documents evidence violations of the SARS and rules

1074of the administrative code, there is insufficient

1081evidence to attribute the violations to the Respondent.

1089Since the Respondent's relationship to the complainant

1096and Traditions was based on an oral agreement, it cannot

1106be c oncluded that the Respondent erroneously completed

1114work for that entity. The work submitted did contain

1123incomplete and erroneous accounting information as

1129alleged by the Petitioner but such errors cannot wholly

1138be attributed to the Respondent. The violat ions

1146demonstrated on the "financial statement" cannot be

1153attributed to the Respondent since he maintains he was

1162not retained to create a financial statement. The

1170contradictory testimony does not meet the burden of proof

1179as to Count I of the Administrative Complaint.

118717. As to Count II, the Respondent has admitted

1196that he failed or refused to provide the depreciation

1205schedules to the succeeding accountant.

121018. Rule 61H1 - 23.002, Florida Administrative Code,

1218provides in part:

1221(1) A licensee shall furnis h to a

1229client or former client within a

1235reasonable time after request of the

1241document the following if they are in

1248the licensee's possession or control

1253at the time of the request: Any

1260accounting or other records belonging

1265to the client which the licensee m ay

1273have had occasion to remove from

1279client's premises, or to receive for

1285the client's account, including

1289records prepared as part of the

1295service to the client which would be

1302needed to reconcile to the financial

1308statements or tax return prepared and

1314issued by the certified public

1319accountant. If the tax return or

1325financial statement has not been

1330issued, the certified public

1334accountant must only return records

1339received from the client, but this

1345shall not preclude the licensee from

1351making copies of such docume nts when

1358same form the basis of work done by

1366the licensee.

13682) This rule shall not preclude a

1375licensee from making reasonable

1379charges for costs incurred. A

1384licensee shall not withhold those

1389items contemplated

1391above under any circumstances

1395following a de mand for same from the

1403client.

140419. Based upon the foregoing, the Petitioner has

1412established a violation of Count II.

141820. Having considered the violation, and the

1425aggravating circumstances presented, the Respondent's

1430request for dismissal for laches mu st be addressed.

143921. Section 455.225, Florida Statutes, provides, in

1446part:

1447(2) The department shall allocate

1452sufficient and adequately trained

1456staff to expeditiously and thoroughly

1461determine legal sufficiency and

1465investigate all legally sufficient

1469comp laints. When its investigation is

1475complete and legally sufficient, the

1480department shall prepare and submit to

1486the probable cause panel of the

1492appropriate regulatory board the

1496investigative report of the

1500department. The report shall contain

1505the investigati ve findings and the

1511recommendations of the department

1515concerning the existence of probable

1520cause.

152122. The Respondent maintains that the Petitioner

1528did not "expeditiously" complete the investigation of

1535this case and that, as a result, the Respondent ha s been

1547prejudiced by the inability to secure witnesses. Under

1555the circumstances of this case, it is inconceivable how

1564the inability to secure witnesses has prejudiced the

1572Respondent. As to the violations outlined in Count I of

1582the complaint, the lack of witnesses benefited the

1590Respondent. Because the Petitioner did not secure the

1598testimony of the complainant, her bookkeeper, or her

1606succeeding accountant, the Respondent was given the

1613benefit of the doubt as to the violations and

1622deficiencies in the work p roduct. As to Count II, the

1633Respondent admitted the violation. Additional witnesses

1639would not have reduced the violation. The Respondent did

1648not release records because he had not been paid.

1657Nothing in the rule grants that unilateral protection.

1665Thus it is concluded that Respondent's admission was

1673sufficient to establish the Count II violation.

168023. Finally, it is concluded that any delay in the

1690prosecution of this case must be considered "harmless

1698error" under the terms of Carter v. Department of

1707Pr ofessional Regulation, Board of Optometry , 633 So. 2d 3

1717(Fla. 1994). The claims in this case were not so stale

1728that due process considerations preclude the advancement

1735of the Petitioner's cause. In this case the delay did

1745not prejudice the Respondent, ac cordingly, no harm has

1754been demonstrated. The Respondent's claim of laches is

1762denied.

1763RECOMMENDATION

1764Based on the foregoing Findings of Fact and

1772Conclusions of Law, it is RECOMMENDED that the Department

1781of Business and Professional Regulation enter a fina l

1790order finding the Respondent violated Rule 61H1 - 23.002,

1799Florida Administrative Code, as set forth in Count II of

1809the Administrative Code; imposing an administrative fine

1816in the amount of $1000; and placing the Respondent on

1826probation for one year subject to terms as may be

1836specified by the Board of Accountancy.

1842DONE AND ENTERED this 4th day of December, 2001, in

1852Tallahassee, Leon County, Florida.

1856___________________________________

1857J. D. PARRISH

1860Administrative Law Judge

1863Division of Administrative

1866Hearings

1867The DeSoto Building

18701230 Apalachee Parkway

1873Tallahassee, Florida 32399 - 30 60

1879(850) 488 - 9675 SUNCOM 278 - 9675

1887Fax Filing (850) 921 - 6847

1893www.doah.state.fl.us

1894Filed with the Clerk of the

1900Division of Ad ministrative

1904Hearings

1905this 4th day of December, 2001.

1911COPIES FURNISHED:

1913Charles F. Tunnicliff, Esquire

1917Department of Business and

1921Professional Regulation

19231940 North Monroe Street, Suite 60

1929Tallahassee, Florida 32399 - 2202

1934V ictor K. Rones, Esquire

1939Law Offices of Rones & Navarro

194516105 Northeast 18th Avenue

1949North Miami Beach, Florida 33162

1954Martha Willis, Division Director

1958Division of Certified Public Accounting

1963Department of Business and

1967Professional Regulation

1969240 Northwes t 76 Drive, Suite A

1976Gainesville, Florida 32607

1979Hardy L. Roberts, III, General Counsel

1985Department of Business and

1989Professional Regulation

19911940 North Monroe Street

1995Tallahassee, Florida 32399 - 2202

2000NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2006All parties ha ve the right to submit written exceptions

2016within 15 days from the date of this Recommended Order.

2026Any exceptions to this Recommended Order should be filed

2035with the agency that will issue the Final Order in this

2046case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/24/2002
Proceedings: Final Order filed.
PDF:
Date: 05/17/2002
Proceedings: Agency Final Order
PDF:
Date: 03/22/2002
Proceedings: Reply to the Response to Exceptions to Recommended Order filed by Respondent.
PDF:
Date: 12/19/2001
Proceedings: Exceptions to Recommended Order filed by Respondent.
PDF:
Date: 12/04/2001
Proceedings: Recommended Order
PDF:
Date: 12/04/2001
Proceedings: Recommended Order issued (hearing held September 11, 2001) CASE CLOSED.
PDF:
Date: 12/04/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 11/09/2001
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 11/02/2001
Proceedings: Petitioner`s Motion for Extension of Time to File proposed Recommended Order (filed via facsimile).
PDF:
Date: 10/29/2001
Proceedings: (Proposed) Recommended Order filed by Respondent
PDF:
Date: 10/24/2001
Proceedings: Order granting Motion for Extension of Time to File Proposed Recommended Order issued.
PDF:
Date: 10/23/2001
Proceedings: Petitioner`s Motion for Extension of Time to File Proposed Recommended Order (filed via facsimile).
Date: 10/18/2001
Proceedings: Transcript filed.
PDF:
Date: 09/19/2001
Proceedings: Notice of Filing Trial Exhibits filed by Respondent.
Date: 09/11/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 09/07/2001
Proceedings: Unilateal Pre-Hearing Stipulation (filed by Petitioner via facsimile).
PDF:
Date: 09/07/2001
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for September 11, 2001; 9:00 a.m.; Miami and Tallahassee, FL, amended as to video and location).
PDF:
Date: 09/06/2001
Proceedings: Order Denying Petitioner`s Motion for Continuance issued.
PDF:
Date: 08/31/2001
Proceedings: Petitioner`s Motion to Continuance (filed via facsimile)
PDF:
Date: 07/17/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 07/17/2001
Proceedings: Notice of Hearing issued (hearing set for September 11, 2001; 9:00 a.m.; Miami, FL).
PDF:
Date: 07/16/2001
Proceedings: Order Granting Motion to Consolidate issued. (consolidated cases are: 01-002597PL, 01-002598PL)
PDF:
Date: 07/16/2001
Proceedings: Answer to Administrative Complaint filed by Respondent
PDF:
Date: 07/16/2001
Proceedings: Compliance With Initial Order filed by Respondent
PDF:
Date: 07/12/2001
Proceedings: Motion to Consolidate (with Case No. 01-2587) filed by Petitioner via facsimile.
PDF:
Date: 07/12/2001
Proceedings: (Joint) Response to Initial Order (filed via facsimile).
PDF:
Date: 07/12/2001
Proceedings: Notice of Appearance (filed by C. Tunnicliff via facsimile).
PDF:
Date: 07/03/2001
Proceedings: Initial Order issued.
PDF:
Date: 07/02/2001
Proceedings: Response to Motion for Final Order by Hearing not Involving Disputed Issues of Material Fact (filed via facsimile).
PDF:
Date: 07/02/2001
Proceedings: Answer to Administrative Complaint filed.
PDF:
Date: 07/02/2001
Proceedings: Administrative Complaint (filed via facsimile).
PDF:
Date: 07/02/2001
Proceedings: Agency referral (filed via facsimile).

Case Information

Judge:
J. D. PARRISH
Date Filed:
07/02/2001
Date Assignment:
09/07/2001
Last Docket Entry:
05/24/2002
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (2):