Rule 61H1-36.004. Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

(1) (a) The board sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon practitioners guilty of violating Chapter 473, F.S. The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties which will normally be imposed upon violations of particular provisions of Chapter 473, F.S. The disciplinary guidelines are based upon a single count violation of each provision listed. The brief description of each violation is provided for quick reference and is not meant to convey all elements of any given statutory provsion; the full language of each statutory provision cited must be consulted in order to determine the conduct involved. All penalties at the upper range of the sanctions set forth in the guidelines, i.e., suspension, revocation, etc., include lesser penalties, i.e., fine, probation or reprimand which may be included in the final penalty at the board’s discretion.

(b) Standard probationary terms will include, as applicable, a review of the licensee’s practice, including analysis of selected financial statements (including working papers), restriction of the scope of the licensee’s practice and review of internal controls put in place by the licensee in order to eliminate the violation. All of the above will usually include the use of a CPA consultant employed by the Department of Business and Professional Regulation or approved by the Board and will usually require the licensee to assume the cost of the consultant’s activities. Additional continuing education may also be required of a licensee where deficiencies in a particular practice area are noted. In all cases of probation or suspension a report showing compliance with the terms of the final order must be received and accepted by the Board prior to the termination of the probation or suspension. Other specific terms of probation or suspension may be imposed, as necessary, by the Board.

(2) The following disciplinary guidelines shall be followed by the board in imposing disciplinary penalties upon licensees for violation of the below mentioned statutes and rules: |VIOLATION |PENALTY RANGE | | |MINIMUM |MAXIMUM | |(a) Attempting to procure license by bribery or fraudulent |Revocation and $5,000 fine if licensed (denial of| | |misrepresentation |license and refer to State Attorney if not | | |(Sections 455.227(1)(h), 473.323(1)(b), F.S.) |licensed) | | |(b) CPA License disciplined by another jurisdiction |Same penalty as imposed in other jurisdiction or | | |(Sections 455.227(1)(f), 473.323(1)(c), F.S.) |imposition of same range of penalties as those | | | |set forth in those rules for the same type of | | | |violation | | |(c) Criminal conviction relating to accountancy |Misdemeanor: Reprimand |Reprimand and $5,000 fine and two (2) | |(Sections 455.227(1)(c), 473.323(1)(d), F.S.) | |year probation one (1) year suspension | | |Felony: One (1) year suspension; | | | |two (2) year probation $5,000 fine |Revocation and $5,000 fine | |(d) Knowingly making or filing false report |Reprimand |Revocation and $5,000 fine | |(Sections 455.227(1)(g), (1)(l), 473.323(1)(e), F.S.) |one (1) year probation |Reprimand, one (1) year | | | |probation and $5,000 fine | |(e) Fraudulent, false, deceptive or misleading advertising |$250 fine |$1,000 fine | |(Section 473.323(1)(f), F.S.) | | | |(Rule 61H1-24.001, F.A.C.) | | | |(f) Incompetence (mental or physical impairment) |Suspension until ability to practice proved, | | |(Section 473.323(1)(g), F.S.) |followed by probation | | |(g) Fraud, deceit or misleading |Reprimand, one (1) year suspension; |$5,000 fine and revocation | |(Sections 455.227(1)(a), (m), 473.323(1)(g), (k), F.S.) |two (2) years probation and $5,000 fine | | |(h) Negligence or misconduct |$250 fine |Reprimand and one (1) year probation | |(Section 473.323(1)(g), F.S.) | |(continuing Education and review of | | | |practice at licensee’s expense and | | | |limited area of practice) and $5,000 fine| |1.Technical standards and professional competence (Sections |Reprimand, probation, and $500 fine |Suspension and $5,000 fine | |455.227(1)(o), 473.315, F.S.) | | | |(Rule 61H1-21.006 and Chapter 61H1-22, F.A.C.) | | | |2. Lack of independence |Reprimand, one (1) year probation with review of |Revocation and $5,000 fine | |(sections 473.315, 473.3205, F.S.) |practice and continuing education | | |(Rule 61H1-21.001, F.A.C.) | | | |3. Commissions and contingent fees |Reprimand |One (1) year suspension, two (2) years | |(Rules 61H1-21.003, 61H1-21.005, F.A.C.) | |probation and $2,500 fine | |4. Client records disposition |$250 fine |Suspension until records are returned and| |(Rule 61H1-23.002, F.A.C.) | |$1,000 fine | |(i) Practicing on suspended or revoked license |Revoke if previously suspended; refer to State | | |(Section 473.323(1)(i), F.S.) |Attorney if previously revoked | | |(j) Practicing on inactive or delinquent license (Sections 455.271,|Reprimand and fine based on length of time in | | |473.323(1)(i), F.S.) |practice while inactive; $100/month or $5,000 | | | |maximum (penalty will require licensure or cease | | | |practice) | | |(k) Licensees practicing in an unlicensed firm (including sole |Reprimand and $100 per maximum of $5,000 and | | |proprietors) or otherwise in violation of |suspension of right to practice until corrected | | |(Sections 473.309, 473.3101, and 473.323(1)(g), F.S.) | | | |(Rule 61H1-26.001, F.A.C.) | | | |(l) Suspension or revocation of right to practice in front of any |Same penalty as imposed by agency or imposition | | |state or federal agency, including the Public Company Accounting |of same range of penalties as those set forth in | | |Oversight Board. |those rules for the same type of violation | | |(Sections 455.227(1)(f), 473.323(1)(j), F.S.) | | | |(m) Lack of Good Moral Character |Reprimand; and one year probation |Revocation | |(Section 473.323(1)(l), F.S.) | | | |(n) Failure to pay fines or administrative cost imposed by final |$100 per month late fee for every month the |Revocation | |order or citations set for in Rule 61H1-36.005, F.A.C. |licensee is late to a maximum of $5,000 | | |(o) Violation of CE requirements |Reprimand, probation, make up missed CEs and |Suspension and $1,000 fine | |(Sections 473.323(1)(a) by 473.312 or 473.323(1)(h), 455.227(1)(q),|penalty CEs | | |F.S., by Rule 61H1-33.003 and/or 61H1-33.0035, F.A.C.) | | | |(p) Violation of client Confidentiality |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |(Section 455.227(1)(q), F.S., by Rule 61H1-23.001, F.A.C.) | | | |(q) Misleading or deceptive name |Reprimand, probation, and $1,000 fine |Suspension and $1,000 fine | |(section 473.321, F.S.) | | | |(r) Violation of Section 473.323(1)(a), F.S. by Section 473.322, | | | |F.S.: | | | |1. Present license of another as one’s own |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |(Section 473.322(1)(d), F.S.) | | | |2. Give false or forged evidence to Board or member thereof |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |(Section 473.322(1)(e), F.S.) | | | |3. Use or attempt to use license that has been suspended, revoked, |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |or placed on inactive or delinquent status | | | |(Section 473.322(1)(f), F.S.) | | | |4. Employ unlicensed persons to practice public accounting; aiding |Reprimand, probation, and $1,000 fine |Suspension and $5,000 fine | |or assisting unlicensed practice public accounting | | | |(Section 473.322(1)(g), F.S.) | | | |5. Conceal information relative to violations of chapter 473, F.S. |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |(Section 473.322(1)(h), F.S.) | | | |(s) Failure to provide legally-required written disclosure to |Reprimand, probation, and $1,000 fine |Suspension and $5,000 fine | |client or public | | | |(violation of Section 473.323(1)(m), F.S. | | | |(t) Violation of Section 473.323(1)(a), F.S., by Section | | | |455.227(1), F.S.: | | | |1. Improper influence on client |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |(Section 455.227(1)(n), F.S.) | | | |2. Improper delegation of professional responsibilities |Reprimand, probation, and $1,000 fine |Suspension and $5,000 fine | |(Section 455.227(1)(p), F.S.) | | | |3. Improper interference with investigation or disciplinary |Reprimand, probation, and $1,000 fine |Revocation and $5,000 fine | |proceeding | | | |(Section 455.227(1)(r), F.S.) | | | |4. Failure to perform statutory/legal obligations (Section |Reprimand, probation and $1,000 fine |Suspension and $1,000 fine | |455.227(1)(k), F.S.) | | | |(u) Failure to maintain current address |Reprimand and $500 fine |Suspension and $1,000 fine | |(violation of Sections 455.275, 455.227(1)(q), and 473.323(1)(h), | | | |F.S., by violating Rule 61H1-26.005, F.A.C.) | | | |(v) Violation of Sections 473.323(1)(h) and 455.227(1)(q), F.S., by|Reprimand, probation, and $1,000 fine |Suspension and $5,000 fine | |Rule 61H1-25.001, F.A.C. Same as subparagraph (t)2. | | | |(w) Minimum capital |Reprimand, probation, $1,000 fine and corrective |Suspension and $1,000 fine | |(violation of and Sections 455.227(1)(q) and 473.323(1)(h), F.S., |action. Must document required capital | | |by Rule 61H1-26.002, F.A.C.) | | | |(x) Licensure of firm names and changes |Reprimand, probation, $100/ month fine and |Suspension and $1,000 fine | |(violation of Sections 455.227(1)(q) and 473.323(1)(h), F.S., by |corrective action. Must document licensure | | |Rules 61H1-26.003 and 61H1-26.004, F.A.C.) | | | |(y) Failure to report discipline violation |Reprimand, probation, and $1,000 fine |Suspension and $5,000 fine | |(Section 455.227(1)(i), F.S.) | | | |(z) Failure to timely report being convicted or found guilty of, or|Reprimand |Suspension and $5,000 fine | |entering a plea of nolo contendere or guilty to, regardless of | | | |adjudication, a crime in any jurisdiction (more than 30 days late) | | | |(Section 455.227(1)(t), F.S.) | | | |(aa) Failure to obtain continuing professional education hours | | | |(section 473.312, F.S., Rule 61H1-33.003, F.A.C.) | | | |First Offense | | | |NUMBER OF HOURS LACKING |Minimum |Maximum | |1 to 16 hours |$1,000 fine, mandatory CPE audit participation |$2,000 fine, mandatory CPE audit | | |for the next two re-establishment periods, and |participation for the next two | | |within 90 days of final order, makeup missing |re-establishment periods, and within 90 | | |hours plus 20 additional penalty hours in the |days of final order, makeup missing hours| | |same category as those missed. If missing hours |plus 20 additional penalty hours in the | | |are ethics, penalty hours would consist of |same category as those missed. If missing| | |accounting/auditing. |hours are ethics, penalty hours would | | | |consist of accounting/auditing. | |17 to 80 hours |$1,000 fine, makeup missing hours plus additional|Suspension, $5,000 fine, makeup missing | | |penalty hours equal to the number of those missed|hours plus additional penalty hours equal| | |in the same category as those missed, suspension |to the number of those missed and within | | |until all hours are completed, and mandatory CPE |same category as those missed, and | | |audit participation for the next two |mandatory CPE audit participation for the| | |re-establishment periods. |next two re-establishment periods. | |Second Offense | | | |NUMBER OF HOURS LACKING | | | |1 to 16 hours |$2,000 fine, mandatory CPE audit participation |$5,000 fine, mandatory CPE audit | | |for the next two re-establishment periods, makeup|participation for the next two | | |missing hours plus 20 additional penalty hours in|re-establishment periods, makeup missing | | |the same category as those missed. If missing |hours plus 20 additional penalty hours in| | |hours are ethics, penalty hours would consist of |the same category as those missed. If | | |accounting/auditing. Suspension until all hours |missing hours are ethics, penalty hours | | |are completed. |would consist of accounting/auditing. | | | |Suspension until all hours are completed.| |17 to 80 hours |$2,500 fine, makeup missing hours plus additional|Suspension, $5,000 fine, makeup missing | | |penalty hours equal to the number of those missed|hours plus additional penalty hours equal| | |in the same category as those missed, suspension |to the number of those missed, in the | | |until all hours are completed, and mandatory CPE |same category as those missed, and | | |audit participation for the next two |mandatory CPE audit participation for the| | |re-establishment periods. |next two re-establishment periods. | |(bb) Fraudulent renewal of a license |Suspension, $5,000 fine, makeup missing hours |Revocation and up to $5,000 fine. | |(section 473.312, F.S., Rule 61H1-33.003, F.A.C.) |plus additional penalty hours equal to the number| | | |of those missed and in the same category as those| | | |missed, and mandatory CPE audit participation for| | | |the next two re-establishment periods. | | |(cc) Failure to enroll in peer review program when required |Suspension until enrollment and a reprimand |Revocation and $5,000 fine | |(sections 473.323(1)(a) and 473.3125(4), F.S.) | | | |(dd) Utilizing CPA designation without an active license |Reprimand, completion of four penalty hours of |Suspension and $5,000 fine | |(Section 473.323(1)(a), F.S., through a violation of section |Board-approved ethics continuing professional | | |473.322(1)(b), F.S.) |education hours | | |(ee) Performing work described in sections 473.302(8)(a), (d), |Reprimand, $5,000 fine, completion of four |Suspension, $5,000 fine, and completion | |F.S., (e.g. – audits, reviews, compilations, or attestation |penalty hours of Board-approved ethics, and eight|of eight penalty hours of Accounting and | |engagements) without an active individual and/or firm license |penalty hours of Accounting and Auditing |Auditing continuing professional | |(section 473.323(1)(a), F.S., through a violation of section |continuing professional education hours. |education hours. | |473.322(1)(c), F.S.) | | | |(ff) Practicing public accountancy with a retired license |$1000 fine; Suspension |$5000 fine; Revocation | |(Section 473.313 (2), F.S., subsection 61H1-30.060(5), F.A.C.) | | |

(3) The Board shall be entitled to deviate from the above-mentioned guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence presented to the Board prior to the imposition of a final penalty.

(a) Aggravating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the enhancement of a penalty beyond the maximum level of discipline in the guidelines shall include but not be limited to the following:

1. History of previous violations of the practice act and the rules promulgated thereto.

2. In the case of negligence; of the magnitude and scope of the engagement and the damage inflicted upon the general public by the licensee’s misfeasance.

3. Evidence of violation of professional practice acts in other jurisdictions wherein the licensee has been disciplined by the appropriate regulatory authority.

4. Violation of the provision of the practice act wherein a letter of guidance as provided in Section 455.225(3), F.S., has previously been issued to the licensee.

5. Multiple convictions of violations of the same provision of Chapter 473, F.S., or the rules promulgated thereto contained in the same administrative complaint.

(b) Mitigating circumstances; circumstances which may justify deviating from the above set forth disciplinary guidelines and cause the lessening of a penalty beyond the minimum level of discipline in the guidelines shall include but not be limited to the following:

1. In cases of negligence, the minor nature of the engagement in question and lack of danger to the public health, safety and welfare resulting from the licensee’s misfeasance.

2. Lack of previous disciplinary history in this or any other jurisdiction wherein the licensee practices his profession.

3. Restitution of any damages suffered by the licensee’s client.

4. The licensee’s professional standing among his peers including continuing education.

5. Steps taken by the licensee or his firm to insure the non-occurrence of similar violations in the future.

6. The degree of financial hardship incurred by a licensee as a result of the imposition of fines or the suspension of his practice.

7. Cooperation with the Department of Business and Professional Regulation and the Board including understanding and admission of the violation by the Respondent. Rulemaking Authority 455.2273, 473.304, 473.323 FS. Law Implemented 455.2273, 473.323 FS. History–New 1-7-87, Amended 9-16-87, 8-25-88, 6-18-91, 12-30-91, Formerly 21A-36.004, Amended 12-7-93, 5-23-94, 8-16-99, 1-31-05, 7-28-10, 5-6-15, 9-30-15, 2-6-17, 1-31-18, 6-18-18, 10-24-19, 10-30-22, 4-16-25.