CopyCited 6 times | Published | Court of Appeals for the Eleventh Circuit | 1997 U.S. App. LEXIS 19506, 1997 WL 394460
...having authority over the practice of public accounting by the corporation is a
certified public accountant in some state;
tax services. These services fall within the types of services enumerated in the definition of public
accountancy in Fla. Stat. ch. 473.302(5)(b) (Supp.1994) (hereinafter "accounting and tax services").2
American Express' provision of these services, however, does not constitute public accountancy
because neither American Express nor its CPA employees disclose to the public that these services
are performed by CPAs....
...(f) It is currently licensed as required by s.
473.3101.
Fla. Stat. ch.
473.309. The Board enforces this regulation through its firm licensure requirement.
See Fla. Stat. ch.
473.3101 (1993).
2
In relevant part, chapter
473.302 provides:
(5) "Practice of," "practicing public accountancy," or "public accounting"
means:
....
(b) Offering to perform or performing for the publ...
...itself out as a certified public accountant or a firm of certified public accountants,
including the performance of such services by a certified public accountant in the
employ of a person so holding himself or itself out.
Fla. Stat. ch. 473.302.
3
The regulations on public accountancy require a CPA to: (1) practice in the form of a
proprietorship, a partnership, a professional service corporation, or a limited liability company
owned entirely by CPAs, Fla....
...pective clients, including the right to place his CPA
designation on business cards, letterheads, and written advertisements. Such advertisement of the
fact of licensure would constitute "holding out" as a CPA within the meaning of Fla. Stat. ch.
473.302(6).5 In turn, Miller's holding out as a CPA while performing accounting and tax services
for the public would constitute public accountancy. See Fla. Stat. ch. 473.302(5)(b)....
...ting him from holding himself out as a CPA.
Miller sought a declaratory judgment that the State of Florida may not prevent him from holding
himself out as a CPA while performing accounting and tax services of the kind identified in Fla.
Stat. ch. 473.302(5)(b), which he currently provides at American Express....
...ch.
473.309.
(3) advertising in a manner that is fraudulent, false, deceptive, or misleading; (4) performing any
fraudulent act; or (5) failing to maintain good moral character. Fla. Stat. ch.
473.323
(Supp.1994).
5
In relevant part, chapter
473.302 provides:
(6) "Holding out" means advertising, as a part of a licensee's business
activities, that the licensee is a certified public accountant when providing, or
offering to provide, services or products to the public which involve the use of
accounting skills or one or more types of management advisory or consulting
services.
Fla. Stat. ch.
473.302.
2....
...Cross-Appellant American Express
In a similar manner, American Express wanted to inform its clients that it employed CPAs
to perform accounting and tax services. As such disclosure would constitute the unlawful practice
of public accountancy by a non-CPA firm, see Fla. Stat. ch. 473.302(5)(b), American Express and
its officers would be subject to prosecution, see Fla....
...nsists that Miller's holding out is not speech, but conduct,
because holding out in conjunction with offering to perform or performing accounting and tax
services for the public is considered the practice of public accountancy. See Fla. Stat. ch.
473.302(5)(b)....
...he use of accounting skills—preparation
of tax opinions, representation before the IRS, evaluation of tax consequences of transactions, and
financial counseling and planning—meant that she was practicing public accountancy, see Fla. Stat.
ch. 473.302(5)(b), in an unlicensed firm....
...n standard, we hold that the statutory scheme
is unconstitutional to the extent that it prevents Miller from holding himself out as a CPA while
offering to perform or performing accounting and tax services of the kind identified in Fla. Stat. ch.
473.302(5)(b), which he currently provides at American Express, a non-CPA firm.
4....
...In structuring the relief requested by Appellee Miller on his First Amendment claim, the
district court stated:
6. The Court holds that, as applied to Plaintiff Miller and other similarly situated
individuals, the enforcement of Florida Statutes §§
473.302(5),
473.309, and
473.322,
violate[s] the First Amendment to the Constitution of the United States, to the extent that
those laws prohibit a CPA employed by an unlicensed accounting firm and performing only
nonattest business services of the kind identified in Florida Statute §
473.302(5)(b) from
truthfully informing clients or prospective clients that he or she is a CPA.
7. Defendants are permanently enjoined from enforcing Florida Statutes §§
473.302(5),
473.309, and
473.322, to the extent that those laws prohibit a CPA employed by
an unlicensed accounting firm and performing only nonattest business services of the kind
identified in Florida Statute §
473.302(5)(b) from truthfully informing clients or prospective
clients that he or she is a CPA....
...dvertise the fact that the accounting
and tax services it offers to the public are performed by its CPA employees. Were American
Express to do so, it could be prosecuted for practicing public accountancy without a firm license.
See Fla. Stat. ch. 473.302(5)(b) (a firm is considered to be engaged in public accountancy if it holds
out its CPA employees in the provision of accounting and tax services to the public)....
