15-001569PL Department Of Business And Professional Regulation, Board Of Accountancy vs. Irene Picca Status: Closed Recommended Order on Thursday, December 31, 2015.

Summary: Petitioner exploited a client for financial gain and failed to maintain good moral character when she used over $310,000 of her client's funds for her personal use. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, BOARD

OF ACCOUNTANCY,

Petitioner,

vs. Case No. 15 - 1569PL

IRENE PICCA,

Respondent.

_______________________________/

RECOMMEND ED ORDER

Administrative Law Judge Lisa Shearer Nelson of the Division

of Administrative Hearings (the Division) conducted a duly -

noticed disputed - fact hearing pursuant to section 120.57(1),

Florida Statutes (2015), on September 1, 2015, in Tallahassee,

Fl orida.

APPEARANCES

For Petitioner: Cristin Erica White, Esquire

Chevonne Christian , Esquire

Department of Business and

Professional Regulation

Office of the General Counsel

Suite 42

1940 North Monroe Street

Tallahassee , Florida 32399 - 2202

For Respondent: Amie K. Patty, Esquire

Anderson Law Group

Suite 500

13577 Feather Sound Drive

Clearwater, Florida 33762

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent violated

sectio n 455.227(1)(n) , and section 473.323(1)(g) and (l), Florida

Statutes (2013), with respect to her actions in connection with

the financial affairs of Judith Jamison, and if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

On August 14, 2014, Petiti oner, the Department of Business

and Professional Regulation (the Department), filed an

Administrative Complaint against Respondent, Irene Picca,

asserting that she violated section 455.227(1)(n), and section

473.323(1)(g) , (k), and (l) . Respondent disput ed the allegations

in the Administrative Complaint and on March 20, 2015, the case

was referred to the Division for assignment of an administrative

law judge.

A Notice of Hearing was issued on March 25, 2015, scheduling

the hearing for May 27, 2015. At th e request of Respondent, the

hearing was rescheduled for August 4, 2015. A second request for

continuance was denied. However, due to unusual flooding in the

Tampa area which prevented RespondentÓs counselÓs ability to

attend the hearing, the hearing was rescheduled for September 1,

2015. At hearing, Petitioner presented the testimony of John

Gruppioni and Barbara Houston, and PetitionerÓs Exhibits 1 - 4, 6,

9 - 10, 13 - 16, 19 - 21, 25 - 26, and 29 - 33 were admitted into evidence .

Included in the PetitionerÓs exh ibits are the depositions of

Judith Jamison, Jonathan Smith, Esquire, Ian Jamison, Chase

Jamison, Daniel Soud, Linda Traylor, and Pamela Duggar.

Respondent testified on her own behalf and presented the

testimony of John Gruppioni, William Stanwix - Hay , and Steve

Rawlins , and RespondentÓs Exhibits 1 and 2 were admitted into

evidence.

PetitionerÓs Motions for Official Recognition , filed July 2

and July 27, 2015, were granted. Respondent moved to strike

Count III of the Administrative Complaint because this count was

not approved by the probable cause panel of the Board of

Accountancy , and the Department indicated its intentio n not to

proceed with this Charge .

The Transcript of the hearing was filed with the Division on

September 14, 2015. At the request of the parties, the deadline

for submitting proposed recommended orders was set for

November 2 , 2015. Petitioner filed a Proposed Recommended Order

on October 30, 2015, and RespondentÓs Proposed Recommended Order

was filed November 3, 2015. Both submissions have been carefully

considered in the preparation of this Recommended Order.

FINDING S OF FACT

Based on the evidence and the testimony of witnesses

presented, and the entire record in this proceeding, the

following findings are made:

1. Petitioner is the state agency charged with the

licensing and regulation of the practice of public accountancy

pursuant to section 20.165 and chapters 455 and 473, Florida

Statutes.

2. At all times relevant to the proceedings in this case,

Respondent was licensed as a cer tified public accountant (CPA) in

the State of Florida.

3 . Respondent is a native of Naples, Italy , and moved to

the United States while a teenager. She received a bachelorÓs

degree in accounting from Jacksonville University in 1992.

Respondent receiv ed her CPA c ertification, license number

AC 31511, in 1998.

4 . RespondentÓs license is currently active and expires on

December 31, 2015.

5. After receiving her CPA license, Respondent worked for

the CPA firm of Hunter and Associates for approximately a year.

She then moved to a larger firm, Masters, Smith, & Wisby, P.A.

(MS&W) , in September 2001, until June 2005. She left both firms

on good terms with her former employers.

6. While working as a staff accountant for MS&W, Respondent

was assigned a new client named Judith Jamison. Respondent was

given the task of preparing Ms. JamisonÓs tax returns. She

continued to prepare Ms. JamisonÓs returns for the 2005 and 2006

calendar years, after leaving the firmÓs employ.

7. When Respondent first met Ms. Ja mison, Ms. JamisonÓs

income was derived from the proceeds of timber rentals from her

share of a family inheritance.

8. After Respondent left MS&W, she went to Italy for

approximately three months before returning to the United States .

Upon her return, she began to r eceive telephone calls from

Ms. Jamison. Initially those calls were in the wake of the death

of Ms. JamisonÓs mother, and it appears that she simply needed

someone with whom to confide. Ms. JamisonÓs telephone calls

spanned a period of time in RespondentÓs life when she was

diagnosed with breast cancer, and was receiving treatment for her

condition.

9. Ms. Jamison was described by most of the witnesses who

testified as being a frail woman who is a loner , and somewhat

needy and eccentric . She was also characterized as a bright

woman who ha s a problem with alcohol abuse and is perhaps easily

manipulated . The record in cludes a sworn statement by

Ms. Jamison, as well as her deposition taken in this case. Her

statements in the two documents are w ildly divergent, and the

undersigned did not have the opportunity to observe her demeanor

and assess her credibility. Therefore, little reliance is placed

on her testimony, unless it is corroborated by the testimony of

another witness in this case.

10. I n March 2007, Ms. Jamison called Respondent and asked

for help in removing a man referred to as ÐFlashÑ from her

residence. Respondent helped Ms. Jamison extricate Fl ash from

her home, and helped her deal with an illness in April 2007.

1 1 . It is clear fr om the evidence presented at hearing that

Respondent and Ms. Jamison established a close friendship during

this time. Over the next few years, they spent a great deal of

time together, and Respondent frequently helped Ms. Jamison when

she was ill, includi ng taking her to the doctor and the hospital

when it was necessary. It is equal ly clear that Respondent

grossly abused that friendship.

1 2 . At some point, Respondent was added as an authorized

signatory on Ms. JamisonÓs bank account at Wachovia Bank (acc ount

number 1010170548766) . W ho instigated the addition is not clear

from the record, but it can be inferred that Respondent suggested

it . Ms. Jamison underst ood that Respondent, who she considered

to be both her friend and her CPA, would be better able to help

her pay her bills and manage her money if she had access to the

account. Ms. Jamison and Respondent were the only authorized

signator ie s on the account. No CPA who testified, other than

Respondent, identified a legitimate reason for a CPA to be a n

authorized signatory on an individual clientÓs personal bank

account. No legitimate reason existed here.

1 3 . In approximately October of 2008, the timberland which

provided the rent proceeds for Ms. JamisonÓs income was sold. As

a result of the sale, Ms. Jamison received inheritance funds of

approximately 3.9 million dollars. Respondent was aware of the

inheritance and introduced Ms. Jamison to Daniel Soud, an

investment advisor, to assist Ms. Jamison in investing the funds ,

and to Tom Watson, Esquire , to handle legal matters related to

them . Mr. Watson did not testify . M r. Soud understood

Ms. Jamison to be RespondentÓs CPA client.

14 . At this point, Respondent was representing to others,

including Mr. Watson and Mr. Soud, that she was RespondentÓs CPA.

For example, Mr. Watson apparently questioned her role in

Ms. JamisonÓs affairs, and on October 13, 2008, Respondent

provided the following response via email to Mr. Watson, and

copied to Mr. Soud:

Mr. Watson:

Since early 2002 Ms. Jamison has been m y tax

client. My services were tax related until

March 2007 when she began to need my

services at an exceptional rate. Numerous

documentation was required to finance her

present home, then my services were retained

to manage the entire move, manage the

p rocess for her Labrador dogÓ s knee surgery

(twice) and extricate her from a fraudulent

business relationship, manage all that was

required to enact repairs and home

maintenance, other legal matters in addition

to the Atlanta home lawsuit, research and

appl ication for any borrowings, and the list

goes on for all that has been required to

manage Ms. JamisonÓs financial related

matters. I must mention that I never billed

her for any of the nights or 24 hour care I

provided through the various crisis,

illnesse s and three injuries she

experienced, all times that has expanded a

business relationship to one of deep

affection and commitment to her well - being.

It has been a challenge to navigate billing

for my services and giving her my time as

her closest friend. As her attorney, your

question of what makes up the $80,000.00 I

listed as due me is a reasonable question.

The answer is that from March 2007 to August

2007 alone (while I was undergoing

chemotherapy) I spent from 40 hours a week

handling every aspect o f her affairs. At my

lowest billing rate of $100.00 (40* 4*6=960)

that calculates to $96,000.

September 2007 - September 2008 incurred

average 20 hours per week (80 hrs per

mo*12=960) that calculates to $96,000.

Thus far that total is $192,000 of which she

has paid $60,000. I will provide a more

detailed accounting if you require it, but

the $80,000 I listed was a deeply discounted

amount. It is hard to put a price tag on

the safety and protection I have provided

Ms. Jamison over the last eighteen months of

my services. You may ask Danny Soud how

many times he has had to reschedule our

appointments due to a new crisis, injury or

illness.

The Delaware Irrevocable Trust I proposed to

Ms. Jamison was only after conferring with

you on her behalf. I am aware of the

inherent dangers for Ms. Jamison in setting

up such a Trust but believe I am well

qualified by trust ed service to be the

trustee with her eldest son Chase Jamison as

successor or replacement Trustee. Please

let me know if you have any other conce rns

that I may clarify for you. [1/] [Emphasis

added.]

1 5 . On October 17, 2008, JAJ Partners, LLC , was formed,

listing Judith Jamison and Irene Picca as general partners, and

Tom Watson, Esquire , as registered agent. Respondent claimed

that she simply le nt her name to the partnership , but never used

it. She also claimed that she did not want to be involved in

Ms. JamisonÓs financial planning. However, her actions tell a

different story , and her testimony that she did not want to be

involved in Ms. Jamis onÓs financial affairs is rejected as not

credible .

16. Soud, Jamison, and Respondent then met to devise an

investment strategy for Ms. Jamiso n. According to Mr. Soud,

$1 million of the inheritance was placed in an annuity designed

to grow over time and provide income to Ms. Jamison later on .

$1.5 million of the inheritance was placed in a stock and bond

fee - based account with Glenworth Financial. At least some, if

not all, of the remaining funds were used to pay inheritance

taxes. The plan was to have systematic withdrawals from the

Glenworth account and leave the annuity alone for ten years. The

Glenworth account was designed based on the risk profile

developed for Ms. Jamison, but should have provided income for

her for a substantial length of time.

1 7 . Respondent sat in on the meeting to develop the risk

profile for Ms. Jamison. The Glenworth Financial account was

opened on October 22, 2008, and was in the name of JAJ Partners,

LLC, with Ms. Jamison and Respondent listed as the co - owners .

N one o f the funds deposited in the Glenworth Financial accounts

or the Wachovia bill - pay account were provided by Respondent , and

Respondent claimed at hearing that she did not remember the

purpose of the JAJ Partners, LLC , account .

1 8 . While the purported reas on for RespondentÓs ability to

access Ms. JamisonÓs accounts was to help manage her money,

Respondent routinely used funds in the account to pay her

personal bills. When asked about doing so, she related a story

about Ms. Jamison having her telephone acco unt restored when she

learned that Respondent was unable to pay it. However, this

simple kindness led to RespondentÓs use of Ms. JamisonÓs accounts

as if the money were her own , despite the reality that she never

contributed as much as a dime . Indeed, sh e stated at hearing, Ð I

was joint on the account. I thought that that was my account,

too; IÓm joint on it.Ñ She used funds from the Wachovia bill - pay

account to pay for expenses including her home mortgage , her

Comcast cable bill , her electric bill , her AT&T telephone bill ,

health insurance premiums , dental bills , expensive restaurant

charges , hair and nail appointments, and massage appointments.

Many of the recurring bills, such as the telephone, health

insurance, and cable bills, were set up to be pai d automatically

from the bill - pay account , funded solely by Ms. JamisonÓs money.

1 9 . Respondent acknowledged receiving approximately $45,102

from Ms. JamisonÓs funds in 2008. She characterize s these funds

as gifts. She also acknowledged receiving approx imately $79,837

from Ms. Jamison in 2009. She characterizes these funds as gifts

as well, stating that none of the moneys she received were funds

that she was not supposed to have. Respondent claims that the

money she received from Ms. Jamison was like t he money that

Ms. Jamison gave her sons.

20 . However, Ms. Jamison did not give her sons the amounts

of money that Respondent was taking. Ms. Jamison has two sons,

Chase and Ian. Chase is a law enforcement officer with the City

of Atlant is Beach , and h a s been for ten years . He describes his

relationship with his mother as strained, and they have limited

contact. There was no evidence presented to indi cate that

Ms. Jamison gave him large amounts of money similar to what

Respondent received , or any mone y at all . During the time

relevant to these proceedings, Ian was attending a private

college in Orlando, and Ms. Jamison was paying the tuition and

his living expenses while he went to school. Respondent was

actively involved in those payments, and may h ave provided to Ian

less than his mother intended him to have. Ian now has a full -

time j ob and receives no financial assistance from his mother.

They share a cell phone account, more for convenience than

assistance, and Ms. Jamison pays only her proporti onate share.

Despite RespondentÓs claims regarding the amount of Ms. JamisonÓs

funds she was accessing for personal use, paying tuition and

expenses for oneÓs own child is not considered unusual behavior.

Paying similar expenses for oneÓs CPA is far outs ide the norm.

21. It is unclear how much knowledge Ms. Jamison actually

had about RespondentÓs use of the funds. While she testified

that she was unaware of many of the purchases Respondent made,

Mr. Soud testified that at times Ms. Jamison would complai n to

him about RespondentÓs spending and what she, Ms. Jamison, was

paying for, such as helping IreneÓs mother buy a house , to buying

RespondentÓs son a car, to paying for all of the food for a party

at the opening of RespondentÓs new CPA office. To the e xtent

that she was aware of the withdrawal of funds from her account,

she seemed powerless to stop it.

22. Respondent seemed to be the person in control, despite

the fact that the money belonged to Ms. Jamison. In fact, while

Ms. Jamison had several ex tended family members in the area in

addition to her sons, in February 2009, Ms. Jamison signed a

nomination of guardianship naming Respondent as her guardian. In

her deposition , she could not remember signing the guardianship

nomination, as well as many other documents bearing her

signature. Ms. Jamison testified that Respondent often gave her

documents to sign. She apparently signed whatever Respondent

presented to her . Neither of Ms. JamisonÓs sons were consulted

about the possibility of guardianship , and both found it

upsetting when it wa s later discovered.

2 3 . On December 1, 2009 , Ms. Jamison and Respondent signed

a withdrawal request to transfer $275,000 from the Glenworth

Financial Account to account number 2000045179978 at a Wachovia

Bank locat ion in Jacksonville. Mr. Soud understood the funds

were withdrawn in order to fund a mortgage for RespondentÓs ex -

husband. Respondent told him that the mortgage would be paid at

eight percent interest. He asked Respondent whether her ex -

husband still ow ed her money from their divorce , and she

indicated that he did. Mr. Soud was concerned that this flow of

funds from Ms. JamisonÓs inheritance through the partnership

would benefit Respondent directly, but had no authority to stop

the transfer, as both Ms. Jamison and Respondent authorized it.

Respondent claimed that she did not want Ms. Jamison to fund the

mortgage for her ex - husband, but was involved in negotiating the

eight percent interest rate on the note. Her testimony regarding

her reluctance to be involved is rejected as not credible.

2 4 . In December 2009, Respondent also found a CPA firm

client list that she could purchase in order to bring assets into

a CPA partnership with CPAs Linda Traylor and Pamela Duggar. She

asked Ms. Jamison to give her the money to purchase the client

list and to buy startup supplies, such as computers, software,

and furniture. The amount of money used for this purpose was

$185, 440.37, all of which came from Ms. Jamison. Respondent

started with the firm known as Dugga r , Traylor & Picca , beginning

January 1, 2010 .

2 5 . By 2010, both Mr. Soud and Ms. JamisonÓs sons were

concerned about the amount of money pouring out of Ms. JamisonÓs

accounts. Mr. Soud was especially concerned because the

financial planning strategy or iginally devised after Ms. Jamison

received her inheritance depended on keeping spending within

certain limits, and it appeared that Ms. Jamison was spending the

money at a significantly faster pace. The spending rate was such

that her funds would not sup port her as planned until the annuity

funds would be available. Mr. Soud contacted Chase and Ian

Jamison to discuss his concerns.

2 6 . Ian Jamison also had become increasingly concerned not

only about his motherÓs finances , but about the control

Responden t seemed to have over his mother and her decision -

making. There were many instances in which he felt Respondent

was limiting his access to his mother, or was attempting to

convince her that Ian was the problem as opposed to Respondent.

His feelings were based upon multiple instances where he and his

mother would speak privately about RespondentÓs role in

Ms. JamisonÓs life , and Ms. Jamison would seem to understand his

concerns. I n a matter of days, her position would change

completely, and she would accu se Ian of being the problem. His

concerns were also based in part on a conversation he overheard

between his mother and Respondent , in which Respondent was crying

and claimed that Ian would Ðruin everything . Ñ

2 7 . In March 2010, he asked for and receive d permission

from his mother to look at her bank records and began to ask

questions about many of the expenditures he saw documented in the

bank statements. That same month, RespondentÓs name was removed

from Ms. JamisonÓs bank accounts as an authorized s ignatory . In

response to some of IanÓs questions regarding expenditures,

Respondent wrote to Ian on March 29, 2010, stating, ÐAs I

understand it, your mother, Judith Jamison, agrees that an

accounting of her financial status is to be prepared for your

rev iew. I will be happy to prepare that for you. As tax season

is underway, the earliest I can co mplete the report will be

April 30, 2010. I hope that is acceptable to you.Ñ Respondent

also canceled the arrangements to have her bills automatically

paid ou t of Ms. JamisonÓs account, although the two final

accounts were not removed until April 6, 2010.

2 8 . About this time, Respondent began to fear that IanÓs

inquiries could pose problems for her, and Ian freely admitted in

his deposition that he threatened her, telling Respondent that

she needed to extract herself from his motherÓs finances and her

life, and that he would come after her with everything he had

because she was ruining his motherÓs life. 2/ As a result,

Respondent took several steps that are cl early designed to

protect herself as opposed to wo rking for the benefit of

Judith Jamison.

2 9 . First, on April 16, 2010, Respondent wrote a lengthy e -

mail to Chase and Ian Jamison, attempting to justify her actions

as being taken in an effort to serve as their motherÓs Ðunfailing

protector.Ñ The e - mail is self - serving and only highlight s the

extent to which she had ingratiated herself into Ms. JamisonÓs

life.

30 . Second, Respondent hired a criminal lawyer to advise

her (at Ms. JamisonÓs expense). She to ok Ms. Jamison to the

lawyer, a Mr. Seth Schwartz, to provide a sworn statement

indicating that she knew what was going on with her accounts;

that she and Respondent were close friends; and that she paid

expenses on R espondentÓs behalf willingly. A cold r eading of the

transcripts indicates to a reasonable person that Ms. Jamison was

erratic at best that day. When asked about the sworn statement

in her deposition, she did not remember giving it. Respondent

was present in the room while Ms. Jamison gave th e statement.

31 . Respondent also created invoices under the name of CPA

Services - Jax, LLC, for the months of January 2008 through May

2008 . The invoices dated January 31, 2008, February 28, 2008,

and March 31, 2008 , are identical except for the date on e ach

invoice and provide the following description of services and

billed amount s :

Date Description Amount

Monthly financial service in 6,000.00

budgeting - maintain vendor

accounts - pay bills - maintain

bank accounts - research and

hire repairmen for home

maintena nce: conference with

financial and legal

professiona l s: 10 hours per

week x 4 weeks each month

Companion care - assistance in 2,000.00

shopping - organizing

appointments Î prescription pick

up

Total $8,0 00.00

Payments/Credits $0.00

Balance Due $8,000.00

32 . The invoice for May 31, 2008, is for a total of

$30,800. It includes the same entries as the previous invoices

for Ðmonthly financial services,Ñ etc ., for the months of April

and May, and also includes a charge for $18,800. The description

of services for this charge states:

Companion c are for wrist fracture on

March 31, 2008: taking to Baptist Hospital

emergency room - 24 hour care for one week

before surgery Ï overseeing JOI set up of

surgery and one week bedside care plus

ongoing assistance in recovery of 4 weeks

with 6 week physical therapy visits through

May 2008 (24*14=336 hrs=40 hrs physical

therapy @50.00 per hr).

33 . These invoices were never actually sent. Respondent

created them on the computers at the offices of Duggar, Traylor &

Picca, and showed them to Linda Traylor. Msaylor reminde d he r

that if she i nvoiced these amounts, she would have to file amended

tax returns to account for th e additional income received, and pay

taxes on these amounts. 3/

3 4 . Respondent did not wish to incur these costs, so she

arrange d for Ms. Jamison to retain Mike Jorgensen, Esquire, to

prepare a promissory note in the amount of $185, 440.37,

representing the Ðbusiness loan,Ñ as well as the preparation of

gift tax returns for money u sed for personal expenses.

Mr. Jorgenson was retained on May 28, 2010, and the promissory

note was executed most likely in late May 2010, notwithstanding

that the undated sign ature page has typed underneath each

signature, ÐEffective August ___, 2008.Ñ

35. While Respondent characterizes the promissory note as

evidencing her steadfast intention to pay her dear friend back the

money related to the purchase of the business, the language of the

promissory note tells a somewhat different story. For example,

the note provides that the note and any obligation thereunder is

canceled upon the death of Ms. Jamison, and Ðthe unpaid balance is

not intended to be offset against any inher itance or devise the

lender is leaving to the borrower, if any.Ñ The note also

provides that the payments are Ðintended to be contingent.Ñ

Further, while not reflected in the actual language of the note,

Respondent told Msaylor that the payment terms were going to

be interest only, paid annually, and that Ms. Jamison would

forgive the interest payments as gifts, meaning that Respondent

would actually pay nothing. The note itself provided that

Respondent would make annual payments of $14,836.68 , plus interest

since the last payment, beginning December 31, 2010, and each year

thereafter for 10 years. Respondent did not make the December 31,

2010 , payment.

3 6 . G ift tax returns for the tax years 2008 and 2009 were

also prepared and presented to Ms. Jami son for signature on

July 10, 2010 . Ms. Jamison could identify her signature , but

really did not know what the forms were for. The gift tax returns

were never filed with the IRS.

3 7 . During 2010 and early 2011, things also were not going

well for Respon dent professionally. Soon after beginning with

the new firm, Respondent was served with a lawsuit, which is

unrelated to the facts of this case. This lawsuit was apparently

a significant distraction for her, because according to both

Linda Traylor and Pa mela Duggar, Respondent performed very little

accounting work for either the 2010 or 2011 tax seasons. 4/ Both

of her partners were perturbed because they were handling the

bulk of the tax work that was supposed to be split three ways,

and neither was plea sed with the quality of the work she did

perform. Moreover, Respondent was ha rsh with both clients and

staff, and both women soon found the working arrangement to be

untenable.

3 8 . On approximately Apri l 27, 2011, Msaylor and

Ms. Duggar determined that the partnership needed to be

dissolved, and notified Respondent accordingly. They devised

what they believed to be an equitable distribution of assets,

including clients, between themselves and Respondent. While

Respondent believes that she was vict imized terribly during this

parting of the ways, her testimony is not credited, and the

details related to the dissolution of the firm are only

tangentially relevant to these proceedings.

3 9 . By June 2011, Ms. Jamison stopped accepting

RespondentÓs calls. Apparently, she had begun to realize that

she was being manipulated and drained of her finances. The

following month, she contacted Duggar and Traylor to handle her

accounting affairs.

40 . In the meantime, as noted above, Respondent did not

make the fi rst payment on the promissory note. On October 18,

2011, Jonathan Smith, Esqu ire, wrote to Respondent on

Ms. JamisonÓs behalf, and demanded payment on the note in the

amount of $1 5,578.51. Mr. Smith notified Respondent that she was

in default and that sh e had 15 days from the date of the letter

to cure the default, and failur e to do so could result in filing

suit against her to obtain a judgment on the note. Respondent

did not respond to cure the default , and at some point

Ms. Jamison filed suit in the F ourth Judicial Circuit, in and for

Duval County, which was docketed as 16 - 2012 - CA - 009378 .

41 . On October 15, 2012, Respondent entered into a

Stipulation for Payment with respect to the suit on the

promissory note. The Stipulation for Payment provided tha t she

would pay as follows: monthly payments of $50, beginning on

October 15, 2012 ; an increase to $200.00 a month on February 15,

2013 ; an increase to $500.00 on February 15, 2014 ; an increase to

$1,000.00 on February 15, 2016 ; and an increase to $1,500. 00 on

February 15, 2017 , and thereafter , until all sums under the note,

including interest, court costs, and attorneyÓs fees, are paid.

42 . Respondent did not make the first payment until

January 3, 2013, and RespondentÓs check was returned for

insufficie nt funds. Ms. Jamison moved for judgment on the note

and on January 28, 2013, a Final Judgment was issued against

Respondent.

43 . The evidence is clear and convincing that Respondent

took advantage of a vulnerable client for her personal gain. She

ingra tiated herself into Ms. JamisonÓs life and injected herself

into her personal finances so as to benefit herself, and quite

frankly, spent Ms. JamisonÓs money as if it were a pot of gold

with no bottom. Respondent insist ed that during the time she had

acce ss to Ms. J amison Ós bank accounts she was acting as her

friend, but not as her CPA. However, several people, including

Danny Soud, Chase and Ian Jamison, Linda Traylor, and Pamela

Duggar , all understood Ms. Jamison to be her client as well as

her friend. Further, she described Ms. Jamison as one of her tax

clients in the e - mail to Tom Watson, described in paragraph 14 .

44. Her claims that she never identified Ms. Jamison as a

client when working at Duggar, Traylor and Picca are also

rejected. Responden t insisted that the designation Ð3IPÑ in

billing records for the firm meant that any account so designated

was in the Ðfriends and familyÑ category that did not get billed.

Contrary to her testimony, the 3IP designation is in the column

labeled as indicat ing the staff member whose work is recorded.

Msaylor , whose testimony is credited, indicated that

RespondentÓs staff number for this program was 3IP.

45 . RespondentÓs claim that she was entitled to be

compensated for the many personal services that she provided to

Ms. Jamison as a friend is likewise rejected. When Chase Jamison

confronted her about the amount of money being spent, Respondent

told him that she was providing a service to his mother.

Respondent told Chase, ÐI would do things for your mom. I wasnÓt

working for free.Ñ Chase was floored, and testified, ÐI am no

expert, but IÓm pretty sure accountants arenÓt that expensive.Ñ

He was especially astonished at the idea that she was charging

for non - CPA - type services because he believed tha t Respondent and

his mother were friends. As he stated, ÐI donÓt understand what

services she was rendering other than just trying to be her

friend. . . . Even today I still donÓt understand what Î

basically [she] felt [she] needed to be paid for being Î just

being there. I could have gotten someone much cheaper than

that.Ñ Simply put, friends do not ask for payment for doing

those things that friends do for one another.

4 6 . While not a n expert witness, Chase JamisonÓs testimony

crystalized the crux of PetitionerÓs case against Respondent: he

felt that Respondent failed to maintain good moral character

because she knew that Ms. Jamison had issues to deal with, and

that in that circumstance an accountant should be even more

diligent to make sure everyth ing is deal t with properly.

Instead, Respondent exploited those vulnerabilities for her own

benefit. Chase believes, correctly, that a CPA has a fiduciary

duty to his or her client to make sure that expenditures are

properly accounted for, especially whe n the CPA understands the

clientÓs financial status. That certainly did not happen here.

4 7 . Chase JamisonÓs lay opinion is consistent with the

expert opinion of Barbara Houst on, CPA, who testified that

Ms. Jam ison was justified in considering Irene Picc a to be her

CPA throughout their relationship; that Respondent owe d no less

of a duty to Ms. Jamison than she owe d to any other client simply

because she and Ms. Jamison became friends; that Respondent

exhibited significant influence over Ms. Jamison for t he purpose

of personal financial gain ; and that her actions evidenced a

failure to maintain good moral character. Ms. HoustonÓs opinion

is accepted as credible .

CONCLUSIONS OF LAW

4 8 . The Division of Administrative Hearings has

jurisdiction over the part ies and the subject matter pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015).

4 9 . This is a proceeding in which Petitioner seeks to

revoke Respondent's license as a certified public accountant .

Because disciplinary proceedings are consi dered to be penal in

nature, Petitioner is required to prove the allegations in the

Administrative Complaint by clear and convincing evidence. DepÓt

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 29 2 (Fla. 1987).

50 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Sup reme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting, with

ap proval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

ÐAlthough this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1991). Moreover, the allegations against Respondent must be

measured against the law in effect at the time of the commission

of the acts alleged to warrant imposition of discipline.

M cCloskey v. DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5 th DCA

2013). Therefore, notwithstanding the Administrative ComplaintÓs

reference to the 2013 codification of the Florida Statutes, the

appropriate codification against which RespondentÓs conduct mus t

be measured would be the statutes in effect from 200 8 to 201 2 .

51 . In Count One of the Administrative Complaint,

Petitioner charges that Respondent violated section

455.227(1)(n) , by Ðexercising influence over Ms. Jamison while

Ms. Jamison was a client for the purpose of financial gain

relating to the payment of the RespondentÓs personal affairs.Ñ

Section 455.227(1)(n) , Florida Statutes (2011) did not change

since 2007 in any manner relevant to the allegations in this

proceeding and provide d :

455.227 Gr ounds for discipline; penalties;

enforcement. Ï

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

***

(n) Exercising influence on the patient or

client for the purpose of financi al gain of

the licensee or third party.

52 . Section 455.227(2) authorizes disciplinary penalties

including suspension or permanent revocation of a license;

restriction of practice; administrative fines up to $5,000 for

each count or offense; issuance of a reprimand; probation, with

conditions specified by the applicable board; and corrective

action. The board is also authorized pursuant to section

455.227(3)(a) to impose investigative costs.

53 . The Department has proven Count One by clear and

convinc ing evidence. Respondent met Ms. Jamison through her work

for her as a CPA, and she continued to prepare income tax returns

for her. Ms. Jamison repeatedly referred to Respondent as her

CPA, and Respondent identified herself in that capacity when

dealing with professionals such as Danny Soud and Tom Watson

handling Ms. JamisonÓs affairs . Her former partners also

understood Ms. Jamison to be her client, and the firmÓs computer

billing records clearly reference her in that manner.

54 . The evidence is e qually clear that Respondent exercised

undue influence over Ms. Jamison for her own financial gain. She

gained access to her bank accounts and had herself nominated as a

personal guardian for her. She controlled many of her social

situations and interfer ed with her relationships with her

children. The evidence is clear and convincing that Respondent

exercised her influence for the purpose of personal benefit, and

benefit she did.

55 . Count Two of the Administrative Complaint charges

Respondent with a v iolation of section 473.323(1)(g), by

committing an act of fraud or deceit, or of negligence,

incompetency, or misconduct, in the practice of accounting. Count

Four charges a violation of section 473.323(1)( l), by failing to

maintain good moral character as provided in section 473.308 or

using practice privileges pursuant to section 473.3141. 5 /

5 6 . In 2007, section 473.323 provided in pertinent part:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (3) may be ta ken:

* * *

(g) Committing an act of fraud or deceit,

or of negligence, incompetency or

misconduct, in the practice of public

accounting.

* * *

(l) Failing to maintain a good moral

character as provided in section 473.308.

5 7 . Section 473.308(6) provided:

(a) ÐGood moral characterÑ means a personal

history of honesty, fairness, and respect

for the rights of others and for the laws of

this state and nation.

5 8 . In 2009, section 473.323(1)(l) was amended to state

Ðfailing to maintain a good mo r al character as provided in

s. 473.308 while applying for licensure, or while licensed in

this state or using practice privileges pursuant to s. 473.3141.Ñ

§ 22, ch. 2009 - 54, Laws of Fla. The definition of good moral

character in section 473.308 remained the same. This change in

the language makes no difference in the application of the

subsection as alleged in this case.

5 9 . With respect to Count Two, the Administrative Complaint

alleges that RespondentÓs conduct violates section 473.323(1)( g)

Ðby com mitting multiple acts of misconduct in the practice of

public accountancy by withdrawing in excess of $310,000 over the

aforementioned period of years from Ms. JamisonÓs account for the

RespondentÓs own personal use while the Respondent had a

professional relationship with Ms. Jamison.Ñ

60 . The Department has proven the violation alleged in

Count Two by clear and convincing evidence. It is noted that

while the Administrative Complaint alleged , and the Department

demonstrated , that Respondent used over $3 10,000 of Ms. JamisonÓs

money for her own purposes, a much lower monetary figure also

would have sufficed to demonstrate a violation . T he fact that

the amount is over $3 1 0,000 simply shocks the conscience of the

factfinder , and RespondentÓs protestations that she believed she

was entitled to these funds is astounding.

61 . Moreover, any attempt to claim that Respondent was

entitled to use of the funds because of the many personal

services she provided to Ms. Jamison is completely without merit.

One does not expect payment to perform acts of friend ship.

Moreover, there is not a scintilla of credible evidence that

Respondent ever discussed with Ms. Jamison an intention to charge

her for services other than preparing her taxes. Any client,

even those consi dered to be friends, are entitled to be informed

of the intention to charge for services and the rate to be

charged prior to the service being performed. Here, Respondent

simply used her friendship as a vehicle for raiding Ms. JamisonÓs

bank accounts.

62 . Finally, Count Four alleges that Respondent violated

section 473.323(1)(l), by Ð e ngaging in withdrawals from

Ms. JamisonÓs account for the RespondentÓs own personal use while

holding a license to practice public accounting in the State of

Florida (licens e number AC31511) and by aiding Ms. Jamison in the

retroactive execution of the previously referenced promissory

note and federal gift tax returns and accompanying Quickbooks

statements and thus demonstrating a lack of honesty, fairness,

and respect for th e rights of others. Ñ

6 3 . The Department did not prove that Respondent ÐaidedÑ

Ms. Jamison in the retroactive execution of the promissory note

and federal gift tax returns and Quickbook statements. The more

compelling evidence demonstrated that Respondent initiated,

rather than aided, those activities. Respondent can only be

found guilty of those allegations specifically referenced in the

Administrative Complaint. Trevisani v. DepÓt of Health , 908 So.

2d 1108 , 1109 (Fla. 1st DCA 2005); see also , Christia n v. DepÓt

of Health , 161 So. 3 d 416, 417 (Fla. 2d DCA 2014); Ghani v. DepÓt

of Health , 714 So. 2d 1113, 1114 - 15 (Fla. 1st DCA 1998).

However, the Department did prove by clear and convincing

evidence that Respondent mad e numerous withdrawals from

Ms. Jam isonÓs account for RespondentÓs own personal use while

holding a license to practice public accounting. Her wanton use

of a clientÓs funds , as if they were her own , clearly

demonstrates a lack of honesty, fairness and respect for the

rights of others, the reby failing to maintain a good moral

character. Count Four has been proven by clear and convincing

evidence.

6 4 . The Board of Accountancy has adopted disciplinary

guidelines that identify the range of penalties normally imposed

for violations of chapter s 455 and 473, and rules adopted

pursuant to these statutory provisions. For each of the

violations charged, the maximum penalty includes revocation.

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 that Respondent committed the violations

alleged in Counts One, Two, and Four of the Administrative

Complaint. It is further recommended that the Board revoke

RespondentÓs license to practice public accoun tancy.

DONE AND ENTERED this 31st day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December , 2015 .

ENDNOTE S

1/ The Delaware Irrevocable Trust was never formed . Reference to

it is included, however, to illustrate just how enmeshed

Respondent was in Ms. JamisonÓs finances, and how much control

she was exerting or attempting to exert over Ms. JamisonÓs funds.

2/ Respondent claims that Ian was simply interested in preserving

the funds for h is own benefit, saying, for example, he had only

called during his college days when he wanted to go on a trip or

buy a new surfboard. However, Danny Soud testified that he

shared IanÓs concerns, as did IanÓs brother Chase. RespondentÓs

characterization of IanÓs motives is specifically rejected.

3/ Msaylor had met Respondent socially before the beginning

of the partnership. She first met Ms. Jamison through Respondent

in 2009. She observed that Respondent had signifi cant influence

over Ms. Jamison: for example, when they first met, Respondent

brought Ms. Jamison to an event and then stayed with her during

the event, so that no one could approach Ms. Jamison without

Respondent being there.

4/ Her lack of involvement in the firmÓs workload is especially

ironic, given her March 29, 2010, letter to Ian Jamison that

because of tax season, the earliest she could complete any

accounting of his motherÓs funds would be April 30, 2010. The

more likely need for delay was for Respondent to devise a

strategy to justify her actions.

5/ In that Count Three was stricken from the Administrative

Complaint at hearing, no further discussion of this Count is

necessary.

COPIES FURNISHED:

Chevonne Christian, Esquire

Department of B usiness and Professional Regulation

Office of the General Counsel

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Amie K. Patty, Esquire

Anderson Law Group

Suite 500

13577 Feather Sound Drive

Clearwater, Florida 33762

(eServe d)

Cristin Erica White, Esquire

Department of Business and Professional Regulation

Office of the General Counsel

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Veloria A. Kelly, Director

Division of Certified Public Acco unting

Board of Accountancy

Department of Business and Professional Regulation

240 North West 76th Drive, Suite A

Gainesville, Florida 32607

(eServed)

William N. Spicola, General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

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 Orde r should be filed with the agency that

will issue the Final Order in this case.