MICHAEL SIMIC, PLAINTIFF-APPELLANT vs. ACCOUNTANCY BOARD OF OHIO, DEFENDANT-APPELLEE
No. 100618
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 24, 2014
[Cite as Simic v. Accountancy Bd. of Ohio, 2014-Ohio-3237.]
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION; Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-782489
ATTORNEYS FOR APPELLANT
Bryan L. Penvose
Koblentz & Penvose, L.L.C.
55 Public Square
Suite 1170
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael DeWine
Attorney General
By: Rachel Huston
Assistant Attorney General
30 East Broad Street
26th Floor
Columbus, OH 43215
SEAN C. GALLAGHER, J.:
{¶1} Plaintiff Michael Simic appeals the trial court‘s decision affirming the decision of the Accountancy Board of Ohio (“Board“) revoking Simic‘s certified public accounting (“CPA“) certificate for a one-year period. For the following reasons, we reverse the decision of the trial court.
{¶2} Simic owns and operates Simic CPA Co. (“the firm“), an accounting firm with a single member. Both the firm and Simic are subjected to a statutory licensing scheme monitored and controlled by the Board. Simic originally obtained his CPA certificate in 1993.
{¶3} The firm failed to renew its registration by the July 31, 2011 deadline. The Board sent Simic and the firm a letter, dated September 29, 2011, in which the Board notified Simic of the failure, and ordered the firm to cease and desist advertising with the CPA designation. The Board also extended the applicable renewal period to October 28, 2011. The firm did not remit the registration documents. In a letter dated November 10, 2011, the Board reissued the cease and desist order and notified Simic of its intent to pursue disciplinary action against Simic‘s CPA certificate and the firm‘s registration (which was never renewed), all pursuant to a violation of
{¶4} On November 28, 2011, Simic, on behalf of the firm, sent the registration documents to the Board, exactly 30 days late, including the $30 registration and $150 penalty fees. On December 20, 2011, the Board rejected the payment and refused to renew the firm‘s registration. At a later hearing, the Board adduced that the firm failed to timely renew its registration, an issue that was seemingly self-evident. Simic pleaded excusable neglect. His wife died at the end of October 2011, and he was hospitalized for a short period of time in November 2011. The Board, however, primarily focused on Simic‘s failure to take curative measures to comply with the cease and desist order. In an adjudication order dated May 1, 2012, the Board sanctioned Simic personally by revoking his CPA certificate for one year.
{¶5} Simic filed an administrative appeal to the Court of Common Pleas for Cuyahoga County, pursuant to
{¶6} It is from this order that Simic timely appeals, advancing two assignments of error, claiming the Board‘s decision was contrary to law because of a one-year grace period to renew licensing pursuant to
{¶7} “‘In reviewing an order of an administrative agency, an appellate court‘s role is more limited than that of a trial court reviewing the same order. It is incumbent on the trial court to examine the evidence. Such is not the charge of the appellate court.‘” Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d 1096, ¶ 41, quoting State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster, 22 Ohio St.3d 191, 193, 489 N.E.2d 288 (1986). Our review is limited to determining whether the trial court abused its discretion. Id.
{¶8} Pertinent to this dispute, Simic‘s firm was required to renew its triennial registration by July 31, 2011, pursuant to
{¶9} In addition to the statutory structure, the Board promulgated rules requiring firms to submit their registration renewal documents by July 31 of the year the previous registration expired.
{¶10} Simic argues that
{¶11} Further, the failure to adhere to that deadline is a per se violation of
{¶12} Nevertheless, Simic advanced a due process argument grounded in the fact that the Board failed to follow its own policies and procedures with regard to the late registration. The firm was 30 days late in submitting the registration renewal documentation. The November 2011 letter notified Simic of his right to request a hearing before the Board levied sanctions against him or the firm because of that failure
to renew. The sole purpose of the administrative hearing before the Board was to determine whether it was appropriate to either discipline Simic personally or refuse the firm‘s registration renewal, or both.
{¶13} Rather than requesting a hearing, Simic submitted the firm‘s registration renewal documentation attached to the Board‘s “2011 Firm Registration Late Renewal Application.” The Board‘s late renewal form indicated that the procedure for a late renewal was to submit the required documents with the nominal registration and penalty fees. That form provided that the penalty fee increases after January 31, 2012, indicating that submitting the form and fees before January 31, 2012, is an acceptable practice. The Board also stated in its procedural guidelines that firms can come into compliance after the November 2011 cease and desist letters are issued.1
{¶14} The Board refused the renewal request, citing the pending disciplinary action. There is, however, no authority allowing the Board to summarily refuse a late renewal application without a hearing. attempted to comply with the Board‘s late renewal process. The Board‘s procedures and late renewal forms, especially read in conjunction with {¶16} The Board‘s decision to sanction Simic by revoking his CPA certificate for a one-year period is a nullity and, therefore, unenforceable. required before the hearing must include “the charges or other reasons for the proposed action, the law or rule directly involved, and a statement informing the party that the party is entitled to a hearing * * *.” The rule is stated in the conjunctive. The only notice provided focused on the firm‘s failure to timely submit its registration paperwork and fees — a deficiency Simic sought to remedy, prior to any hearing, based on the Board‘s own policies and procedures. {¶17} As required by issue before the Board was to determine whether to discipline Simic for the firm‘s failure to submit the registration renewal documentation, along with the nominal fees, 30 days earlier. Neither the Board nor the trial court limited the inquiry accordingly. {¶18} The Board failed to notify Simic of the potential for sanctions based on any failure to abide by the terms of the cease {¶19} The decision of the trial court is reversed. The trial court correctly found that there is no statutory grace period within which a firm is automatically entitled to renew its perfunctory registration requirement. The trial court, however, abused its discretion in affirming the sanction imposed against Simic‘s CPA certificate based on a violation of the cease and desist orders. The Board‘s imposition of that sanction is a nullity in light of the fact that it failed to provide the required notice prior to imposing a sanction for the unregistered practice derived from the failure to abide by the cease and desist orders. It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SEAN C. GALLAGHER, JUDGE KATHLEEN ANN KEOUGH, J., CONCURS; FRANK D. CELEBREZZE, JR., P.J., CONCURS IN JUDGMENT ONLY