90-006424 Board Of Accountancy vs. David S. Leider Status: Closed Recommended Order on Tuesday, June 4, 1991.

Summary: Accountant's conviction of solicitation to have wife murdered shows bad moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6424

)

DAVID S. LEIDER, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled case was held on

March 14, 1991, at Sumter Correctional Institute, in Bushnell, Florida, before

Stephen F. Dean, assigned Hearing Officer of the Division of Administrative

Hearings.

APPEARANCES

FOR PETITIONER: Tobi C. Pam, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60

1940 North Monroe Street

Tallahassee, Florida 32399-0792

FOR RESPONDENT: David S. Leider, pro se

D.C. #118606

Sumter Correctional Institution

P.O. Box 667

Bushnell, Florida 33513-0667

STATEMENT OF THE ISSUES

Whether the Respondent is guilty of the violations alleged in the

Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner filed an Administrative Complaint against the Respondent on

September 17, 1990 alleging violations of Chapter 473, Florida Statutes. The

Petitioner forwarded to the Division of Administrative Hearings the Respondent's

request for a formal hearing. A Hearing Officer was assigned and a Notice of

Hearing was issued on December 6, 1990. The Petitioner filed proposed findings

of fact and conclusions of law in the form of a Proposed Recommended Order. The

Appendix attached hereto and incorporated herein states which of the

Petitioner's proposed findings of fact were adopted and which were rejected and

why. The Respondent did not file proposed findings of fact.

FINDINGS OF FACT

1. The Respondent is a licensed certified public accountant in the State

of Florida (Petitioner's Exhibit 1).

2. The Respondent's license number is AC 20884 (Petitioner's Exhibit 1).

3. The information filed by the State Attorney for the Sixth Judicial

Circuit, in and for Pinellas County, Florida, in Case No. CRC-88-16361-CFANO-A,

alleged that the Respondent unlawfully did solicit Detective Rick Shaw to commit

the offense of murder in the first degree, an offense prohibited by Section

782.04(1)(a), Florida Statutes; and in the course of such solicitation, did

command, urge, hire, or request the Mr. Shaw to engage in specific conduct which

would constitute such offense or an attempt to commit such offense, to wit: to

unlawfully and from a premeditated design effect the death of Zena Leider, a

human being, contrary to Section 777.04(2), Florida Statutes (Petitioner's

Exhibit 2).

4. On or about December 4, 1989, the Respondent was convicted in Case No.

CRC-88-16361-CFANO-A of one count of solicitation to commit murder in the first

degree (Petitioner's Exhibit 2).

5. On or about December 4, 1989, the Respondent was sentenced to be

committed to the custody of the Department of Corrections to be imprisoned for a

term of 17 years. After serving a period 12 years, the balance of the sentence

shall be suspended; and he will be placed on probation for a period of five (5)

years (Petitioner's Exhibit 2).

6. Daniel Hevia, CPA, was accepted as an expert in the profession of

accountancy and testified concerning that profession (Transcript, pg. 24).

7. Accountancy is based upon professional judgment, both technical and

ethical. People practicing accountancy must have good ethics and a strong

character because of the types of judgments which have to be made in the

profession (Transcript, pg. 26).

8. Accountants have to have mature judgment and maintain good mental

stability because the public places a great deal of trust in CPA's (Transcript,

pg. 27).

9. Good moral character means a personal history of honest, fairness,

respect for the rights of others and for the laws of the State of Florida and

the nation (Transcript, pg. 25).

10. The Respondent's conviction shows a lack of good judgment and an

absence of ethics and good character which adversely effect the Respondent's

ability to practice public accounting (Transcript, pg. 42).

11. In the opinion of Mr. Hevia, the Respondent violated Section

473.323(1)(m), Florida Statutes (Transcript, pgs. 28 and 30).

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding, pursuant to Section

120.57(1), Florida Statutes. Since this case involves proposed license

disciplinary action, the Petitioner has the burden of proving the charges set

forth in the Administrative Complaint by clear and convincing evidence. Ferris

v. Turlington, Case No. 69,561, Opinion filed on July 16, 1987 (Fla. 1987)

13. Section 473.323(1)(m), Florida Statutes, provides that a licensee may

be disciplined for failing to maintain the good moral character as required by

Section 473.306, Florida Statutes, which defines "good moral character" as a

personal history of honesty, fairness, and respect for the rights of others and

for the laws of the State of Florida and the nation.

14. The Petitioner has proved by clear and convincing evidence that the

Respondent was convicted of soliciting someone to kill his ex-wife. In Re

G.W.L., 364 So.2d 454 (1978), the Supreme Court of Florida stated, regarding a

lack of good moral character, that it "includes acts and conduct which would

cause a reasonable man to have substantial doubts about an individual's honesty,

fairness, and respect for the rights of others and for the laws of the state and

the nation." The Respondent's conviction of solicitation to murder his ex-wife,

a felony, shows a lack of good moral character, contrary to Section

473.323(1)(m), Florida Statutes.

15. Section 473.323(1)(d), Florida Statutes, provides that a licensee may

be disciplined for being convicted or found guilty, regardless of adjudication,

of a crime in any jurisdiction which directly relates to the practice of public

accounting or the ability to practice public accounting. The offense which the

Respondent committed does not directly relate to the practice of accounting. It

does relate to the Respondent's ability to practice accounting because, as

stated above, it adversely impacts his moral character and good judgment. The

court in Rush v. DPR, 448 So.2d 26 (1984), found that Dr. Rush's conviction for

conspiracy to import marijuana "shows a lack of honesty, integrity, and

judgment, and an unwillingness to abide by the laws of the State of Florida.

Relying upon Rush, supra, the court, in Greenwald v. DPR, 501 So.2d 740 (1987),

upheld the revocation of Dr. Greenwald's licensed based upon his conviction for

solicitation to commit first-degree murder of his ex-wife, finding that his

conviction was "directly related to the practice f medicine and the ability to

practice medicine." While the practice of accounting does not relate to the

treatment of others to save life, the Respondent, in the instant case, showed a

lack of honesty and integrity and an unwillingness to abide by the laws of the

State of Florida. The crime committed by the Respondent is very heinous. This

case is clearly in line with Rush and Greenwald, supra, and the crime of which

the Respondent was convicted relates to his ability to practice public

accounting.

16. The Respondent argued that this hearing was premature and

inappropriate since his conviction is on appeal. The Florida Supreme Court in

The Florida Bar v. Heller, 473 So.2d 1250 (1985), in a bar discipline case,

stated, "in general, the judgment of conviction of a felony is conclusive proof

of the commission of the felony." There is no reason to delay the administrative

hearing in this case, and the Respondent's motion for a continuance at hearing

was denied.

RECOMMENDATION

Having proved that the Respondent has violated Section 473.323(1)(m),

Florida Statutes, by failing to maintain good moral character; and having proved

that the Respondent has violated Section 473.323(1)(d), Florida Statutes, by

being convicted of a crime relating to his ability to practice public

accounting, it is, therefore

RECOMMENDED that the license of the Respondent be revoked.

DONE AND ENTERED this day of June, 1991, in Tallahassee, Leon County,

Florida.

___________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-6424

The Respondent did not file proposed findings of fact.

The Petitioner filed proposed findings which were read and considered. The

following proposed findings were adopted or rejected for the reasons stated:

1-10. Adopted.

11-12. Rejected, as repetitive and cumulative.

13-14. Adopted.

COPIES FURNISHED:

Ms. Martha Willis

Executive Director

Board of Accountancy

Department of Professional Regulation

4001 Northwest 43rd Street

Suite 16

Gainesville, FL 32606

Jack McRay, Esq.

General Counsel

Department of Professional Regulation

Northwood Centre, Suite 60

1940 North Monroe Street

Tallahassee, FL 32399-0792

Tobi C. Pam, Esq.

Department of Professional Regulation

Northwood Centre, Suite 60

1940 North Monroe Street

Tallahassee, FL 32399-0792

David S. Leider

D.C. #118606

Sumter Correctional Institution

P.O. Box 667

Bushnell, FL 33513-0667

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.