15-003940PL Department Of Business And Professional Regulation, Board Of Accountancy vs. Larry Richard Beard Status: Closed Recommended Order on Tuesday, October 13, 2015.

Summary: Respondent failed to maintain good moral character as evidenced by his conviction for capital sexual battery on a child under 12. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, BOARD

OF ACCOUNTANCY,

Petitioner,

vs. Case No. 15 - 3940PL

LARRY RICHARD BEARD,

Respondent.

_______________________________/

R ECOMMENDED ORDER

On September 4, 2015, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings conducted a

hearing pursuant to section 120.57(1), Florida Statutes (2015) ,

in Tallahassee, Florida.

APPEARANCES

For Petitioner : Cristin Erica White, Esquire

Megan E. Kachur, Esquire

Department of Business

and Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Larry Beard, pro se

Union Correc tional Institution

7819 Northwest 228 th Street

Raiford, Florida 32026 - 2601

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Larry

Beard, violated section 473.323(1)(l) , Florida Statutes, as

alleged in the Administrati ve Complaint , and , if so, what

penalty should be imposed?

PRELIMINARY STATEMENT

On May 14, 2015, Petitioner, Department of Business and

Professional Regulation (Petitioner or the Department), filed an

Administrative Complaint against Respondent, Larry Rich ard

Beard, alleging a violation of section 473.323(1)(l). On

May 28, 2015, Respondent disputed the allegations in the

Administrative Complaint b y us e of an Election of Rights form

and requested a hearing pursuant to section 120.57(1). On

July 15, 2015, t he case was referred to the Division of

Administrative Hearings (Division) for assignment of an

administrative law judge.

A Notice of Hearing was issued on July 21, 2015, scheduling

the hearing for September 4, 2015. Arrangements were made, in

light of Re spondentÓs incarceration, for him to participate by

telephone. On August 25, 2015, Petitioner filed a Motion for

Official Recognition and a Notice of Filing with respect to

copies of the PetitionerÓs proposed exhibits. Respondent

objected to some of Peti tionerÓs exhibits, and sought to have

the hearing continued so that Petitioner could ÐredoÑ the

exhibits it intended to offer into evidence. By Order dated

September 3, 2015, the Request for Official Recognition was

granted, and the Motion for Reset of He aring Date was denied.

The hearing commenced and concluded on September 4, 2015.

Petitioner presented the testimony of John Gruppioni, and

PetitionerÓs Exhibits 2, 4, 21, 22, 24, and 27 were admitted

into evidence. 1/ Respondent testified on his own beh alf but

submitted no additional evidence.

The proceedings were recorded and the Transcript was filed

with the Division on September 21, 2015. On September 14, 2015,

Respondent wrote a letter identifying concerns he had with

respect to PetitionerÓs e xhibit s. Specifically, he expressed

concerns about the failure to redact certain information in the

felony information; asked that Petitioner be compelled to

provide him with a copy of the envelopes associated with some of

his letters included in exhibits, if t he Department still had

them ; and requested that he be provided a copy of any corrected

exhibits. The felony information is a public record and has

already been accepted into evidence. With respect to the

request for envelopes, the time to ask whether th e Department

still had these envelopes ( for which receipt spans several

years) was at the hearing. Fur ther, as noted in the

September 3, 2015, Order, Petitioner is under no obligation to

ÐcorrectÑ exhibits . The exhibits are what they are. On

September 2 5, 2015, Respondent submitted his Proposed

Recommended Order. PetitionerÓs Proposed Recommended Order was

submitted September 28, 2015. Both Proposed Recommended Orders

have been carefully considered in the preparation of this

Recommended Order.

FINDING S OF FACT

Based on the testimony of the witnesses and documentary

evidence presented in this proceeding, the following Findings of

F act are found:

1. Petitioner i s the state agency charged with regulating

the practice of certified public accounting in the State of

Florida, pursuant to section 20.165 and chapters 455 and 473,

Florida Statutes.

2. At all times relevant to these proceedings, Respondent

has been licensed as a certified public accountant by the State

of Florida, having been issued license numbe r AC 007921 on

September 4, 1979. RespondentÓs license is currently listed as

Ðcurrent, inactive,Ñ and expires December 31, 2015. No evidence

of any prior discipline against RespondentÓs license was

offered.

3. On or about November 10, 1994, an Informat ion was filed

against Respondent by the State Attorney for the Sixth Judicial

Circuit in and for Pinellas County, charging him with six

counts: 1) sexual battery, a capital felony; 2) lewd and

lascivious act in the presence of a child under the age of 16

years, a second - degree felony; 3) handling and fondling a child

under the age of 16 years, a second - degree felony; 4) lewd and

lascivious act in the presence of a child under the age of 16, a

second - degree felony; 5) lewd and lascivious act in the presence

of a child under the age of 16, a second - degree felony; and

6) handling and fondling a child under the age of 16, a second -

degree felony. The victim in the criminal proceedings was nine

years old.

4. Counts 3 and 4 were nolle prossed. After a jury tria l,

on October 16, 1996, Resp ondent was found guilty of Counts 1

and 2. Respondent pled nolo contendere to Counts 5 and 6. On

November 1, 1996, Respondent was originally sentenced to life in

prison for Count 1 and 40 years in prison for Count 2 , to be

imp osed consecutively .

5. Respondent appealed his conviction and sentence to the

Second District Court of Appeal. In Larry Beard v. State of

Florida , Case No. 96 - 4909 (Fla. 2d DCA Mar. 24, 1999), the

Second District affirmed the convictions for Counts 1 a nd 2, but

vacated the judgments with respect to Counts 5 and 6 , because

the trial court failed to renew the offer of assistance of

counsel to Mr. Beard at the plea hearing. For the same reason

with respect to the sentencing hearing, the sentences for all

four counts were reversed, and the case was remanded for

resentencing for Counts 1 and 2. The Court directed that

Respondent be given the opportunity to withdraw his plea with

respect to Counts 5 and 6.

6. On November 24, 1999, Respondent was re - sentence d to

the same sentences for Counts 1 and 2. Counts 5 and 6 were

nolle prossed. Respondent again appealed the sentencing order

to the Second District Court of Appeal. In Larry Beard v. State

of Florida , Case No. 2D00 - 271 (Fla. 2d DCA June 26, 2002), the

Second District affirmed the judgment and sentence for Count 1

and found no error in the application of a sexual predator

designation. With respect to Count 2, the State conceded that

the 40 - year sentence was a scrivenerÓs error (the trial judge

orally im posed a 40 - month sentence at the sentencing hearing),

and the court found that it was imposed based upon an incorrect

sentencing scoring sheet. The case was again remanded to the

trial court to address the sentence in Count 2. The sentence

ultimately imp osed for Count 2 is not in the record of this

proceeding.

7. Regardless of the changes in sentencing, the fact

remains that Respondent was convicted of capital sexual batter y

in violation of section 794.011(2) , Florida Statutes, and a lewd

act upon a chil d, in violation of section 800.04, Florida

Statutes (1993).

8. Respondent has been incarcerated within the Florida

Department of Corrections since November 7, 1996, and remains

incarcerated.

9. On or about January 6, 1998, Respondent requested that

his l icense be placed in a Ðcurrent, inactiveÑ status. He did

not at that time, or anytime thereafter before December 2012 ,

notify the Department that he ha d been convicted of any crime.

10. Respondent used two other individuals, James Galloway

and Penny Loul argous, to assist him in maintaining his license

in an inactive status after his incarceration. His address was

at different times listed Ðin care ofÑ these individuals.

11. In December 2012, Respondent wrote to the Department

requesting that his address be changed from Mr. GallowayÓs

address to the Okaloosa Correctional Institution located in

Crestview, Florida.

12 . Upon receiving the address change request, the

Department opened an investigation to determine why he was in

prison. However, in June 2013 , the investigation was closed , in

error, for lack of jurisdiction .

13. In July 2014, correspondence was sent to accountancy

licensees whose licenses were in inactive or delinquent status

about an amnesty program authorized by legislation passing

during the 2014 session. Respondent responded to the Department

correspondent with a letter of his own, asking questions

regarding the continuing education requirements for attaining

active status.

14. As a result, the Department re - opened the

investigation th at was closed in June 2013. This re - opened

investigation led to the charges at issue in these proceedings.

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter pursuant to

sections 120.5 69 and 120.57(1), Florida Statutes (2015).

16. This is a proceeding in which Petitioner seeks to

revoke Respondent's license as a certified public accountant .

Because disciplinary proceedings are considered to be penal in

nature, Petitioner is required t o 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 291 (Fla. 1987).

17. Clear and convincing evidence Ðreq uires 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

Supreme Court:

Clear and convincing evidence requires th at

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 i n 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

approval, 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. McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d 441

(Fla . 5 th DCA 2013).

18 . The Administrative Complain t alleges the following

basis for imposing discipline:

8. Section 473.323(1)( l ), Florida Statutes

(2014), provides that Ð[f]ailing to

maintain a good moral character as provided

in s. 473. 308 while applying for licensure,

or while licensed in this state or using

pra ctice privileges pursuant to

s. 473.3141Ñ constitutes grounds for which

disciplinary actions may be taken.

9. Section 473.308(6)(a), Florida S tatutes

(2014), provides that Ð Ò[G]ood moral

chara cterÓ means a personal history of

honesty, fairness, and respect for the

rights of others and for the law of this

state and nation.Ñ

10. Based on the foregoing, Respondent

violated Section 473.323(1)(l), Florida

Statutes (2014), by being adjudicated

guil ty of one (1) count of Sexual Battery

by an Adult on a Victim Under 12, and one

(1) count of Lewd and Lascivious Indecent

Assault on a Child Under 16, in the Circuit

Court of Pinellas County in Case No.

9417041CFANO.

19. While the Administrative Complaint refers to the 2014

codification of Florida Statutes, the version of law in effect

at the time of the conduct alleged must be applied. Childers v.

DepÓt of Envtl. Prot. , 696 So. 2d 962, 964 (Fla. 1st DCA 1997).

20. Section 473.323(1)( l), Florida Statutes (1996),

provides as follows:

(1) The following acts constitute grounds

for which disciplinary actions subsection

(3) may be taken:

* * *

(l) Failing to maintain a good moral

character as provided in s. 473.306.

21. Similarly, section 473.306 (4)(a) , F lorida Statutes

(1996), was identical to the current provision in section

473.308(6)(a).

22. The Department has proven the charge in the

Administrative Complaint by clear and convincing evidence.

23. Respondent asserts that the Department should be

comp elled to present evidence with respect to section

473.308(6)(b) and (c) , which provide :

(b) The board may refuse to certify an

applicant for failure to satisfy this

requirement if:

1. The board finds a reasonable

relationship between the lack of good mor al

character of the applicant and the

professional responsibilities of a certified

public accountant; and

2. The finding by the board of lack of good

moral character is supported by competent

substantial evidence.

(c) When an applicant is found to be

unq ualified for a license because of a lack

of good moral character, the board shall

furnish to the applicant a statement

containing the findings of the board, a

complete record of the evidence upon which

the determination was based, and a notice of

the right s of the applicant to a rehearing

and appeal.

24. RespondentÓs argument is rejected. Section

473.323(1)(l) refers to the definition for failure to maintain

good moral character. More importantly, the provision upon

which Respondent relies specifically indicates that it applies

to those instances where the failure to maintain good moral

character is a basis for denying initial licensure to an

applicant, as opposed to those instances, as this one, where the

definition is applied to a person who is subject to discipline

based on conduct evidencing a lack of good moral character after

the license has been obtained.

25. Respondent also maintains that he lived an admirable

life for many years, including military service and an

unblemished record as a CPA, and it is this record, as opposed

to the one ÐsnippetÑ of time representing the convictions at

issue in this case by which he should be judged .

26. Respondent is correct in his assertion that good moral

character is developed over a lifetime. However, like a good

reputation, evidence of good moral character takes a lifetime to

build and only a moment to destroy. Here, the crimes for which

Respondent was convicted are lewd and lascivious conduct and

capital sexual battery, and the victim of these crimes was a

child less than 10 years old. He was sentenced for life.

Crimes as horrific as these rend the fabric of any moral

character with which Respondent might attempt to clothe himself.

27. The Supreme Court once defined a crime of moral

turpitude as a cri me that is evidenced by an act of baseness,

vileness , or depravity in the private and social duties, which,

according to the accepted standards of the time a man owes to

his or her fellow man or to society in general . The act itself

and not its prohibitio n by statute fixes the moral turpitude .

See State ex rel. Tullidge v. Hollingsworth , 108 Fla. 607, 611,

146 So. 660, 661 (1933). While there may be some crimes that

were considered evidence of moral bankruptcy in the 1930s that

would be considered more a cceptable today, the crimes for which

Respondent was convicted remain repugnant by both erasÓ

standards. They certainly raise substantial doubts as to

RespondentÓs honesty , fairness, and respect for the rights of

others and for the laws of the state and n ation.

28. Finally, Respondent has voiced his frustration at

having these charges brought after having been in prison for so

many years. While the Department did not charge Respondent with

failing to report his convictions, his failure to do so

certain ly explains most of the lengthy delay in bringing these

charges. The prejudice that Respondent claims has more to do

with the ability to present character witnesses, than it does

presenting evidence with respect to factual allegations related

to the charg e against him. The facts with respect to his

criminal conviction have not changed.

29. The Board of Accountancy is required to adopt

disciplinary guidelines to establish ranges of penalties so that

both the public and the profession are placed on notice of the

penalties that ma y be imposed for violations of c hapter 473.

The BoardÓs disciplinary guidelines are found at Florida

Administrative Code Rule 614H1 - 36.004. For the violation

charged in this case, the penalty range adopted by the Board

ranges fro m a reprimand and one year of probation, to

revocation. Where, as here, the Respondent has been convicted

of crimes that have merited a life sentence, revocation is

appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is RECOMMENDED that the Board of Accountancy enter a

final order finding Respondent guilty of violating section

473.323(1)(l), Florida Statutes, and revoking his license.

DONE AND ENTERED this 13 th day of October , 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.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13 th day of October , 2015 .

ENDNOTE

1/ Also included in PetitionerÓs trial notebook were the

documents officially recognized by Order dated September 3,

2015. Those document s are listed in the trial notebook as

PetitionerÓs Exhibits 1, 5 - 6, 9 - 10, 14, 16, and 19.

COPIES FURNISHED:

Cristin Erica White, Esquire

Department of Business

and Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 3 2399

(eServed)

Larry Richard Beard, 0 - 165663

Union Correctional Institution

7819 Northwest 228th Street

Raiford, Florida 32026 - 2601

Megan E. Kachur, Esquire

Department of Business

and Professional Regulation

Suite 42

1940 North Monroe Street

Tallahas see, Florida 32399

(eServed)

Veloria A. Kelly, Director

Division of Certified Public Accounting

Board of Accountancy

Department of Business

and Professional Regulation

240 Northwest 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 Order should be filed with the agency that

will issue the Final Order in this case.