Minnesota Session Laws - 1992, Regular Session

  

                         Laws of Minnesota 1992 

                        CHAPTER 542-S.F.No. 2746 
           An act relating to occupations and professions; board 
          of accountancy; establishing procedures for the board 
          to carry out disciplinary proceedings; providing 
          penalties; amending Minnesota Statutes 1990, section 
          326.211, subdivision 9; proposing coding for new law 
          in Minnesota Statutes, chapter 326; repealing 
          Minnesota Statutes 1990, sections 326.23; and 326.231. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1990, section 326.211, 
subdivision 9, is amended to read: 
    Subd. 9.  (a) No person shall assume or use the title or 
designation "certified public accountant" or "licensed public 
accountant" in conjunction with names indicating or implying 
that there is a partnership, or corporation, if there is no bona 
fide partnership or corporation licensed under section 326.20. 
    (b) No person shall assume or use the title or designation 
"certified public accountant" or "licensed public accountant" in 
conjunction with the designation "and Company," or "and 
Co.," "and Associates," or a similar designation if, in any such 
case, there is in fact no bona fide partnership or corporation 
with more than one shareholder licensed under section 326.20.  
    (c) A sole proprietor or, partnership, or corporation 
lawfully using the title or designation in conjunction with the 
names or designation on July 1, 1980 1992, may continue to do so 
if otherwise in compliance with the provisions of sections 
326.165 to 326.23 326.229. 
    Sec. 2. [326.228] [COMPLAINT COMMITTEE.] 
    The board shall establish a complaint committee to 
investigate, mediate, or initiate administrative or legal 
proceedings on behalf of the board with respect to complaints 
filed with or information received by the board alleging or 
indicating violations of sections 326.165 to 326.229.  The 
complaint committee shall consist of three members of the board, 
one of whom shall be a certified public accountant, and one of 
whom shall be a licensed public accountant.  When the licensed 
public accountants lose their representation on the board 
pursuant to section 326.17, the complaint committee shall 
consist of three members of the board, two of whom shall be 
certified public accountants. 
    Sec. 3.  [326.229] [ISSUANCE, DENIAL, REVOCATION, AND 
SUSPENSION OF LICENSES; DISCIPLINE.] 
    Subdivision 1.  [GENERALLY.] (a) If the board, or the 
complaint committee if authorized by the board, has a reasonable 
basis to believe that a person has engaged in or is about to 
engage in a violation of a statute, rule, or order that the 
board has issued or is empowered to enforce, the board, or the 
complaint committee if authorized by the board, may proceed as 
described in subdivision 2 or 3.  
    (b) Except as otherwise described in this section, all 
hearings shall be conducted in accordance with chapter 14.  
    Subd. 2.  [LEGAL ACTION.] (a) When necessary to prevent an 
imminent violation of a statute, rule, or order that the board 
has issued or is empowered to enforce, the board, or the 
complaint committee if authorized by the board, may bring an 
action in the name of the state in the district court in Ramsey 
county, when necessary to prevent imminent harm to the public, 
or in any county in which jurisdiction is proper to enjoin the 
act or practice and to enforce compliance with the statute, 
rule, or order.  Upon a showing that a person has engaged in or 
is about to engage in an act or practice constituting a 
violation of a statute, rule, or order that the board has issued 
or is empowered to enforce, a permanent or temporary injunction, 
restraining order, or other appropriate relief shall be granted. 
    (b) For purposes of injunctive relief under this 
subdivision, irreparable harm exists when the board shows that a 
person has engaged in or is about to engage in an act or 
practice constituting a violation of a statute, rule, or order 
that the board has issued or is empowered to enforce. 
    (c) Injunctive relief granted under paragraph (a) does not 
relieve an enjoined person from criminal prosecution by a 
competent authority or from action by the board pursuant to 
subdivisions 3, 4, 5, and 6 with respect to the person's 
license, certificate, or application for examination, license, 
or renewal.  
    Subd. 3.  [CEASE AND DESIST ORDERS.] (a) The board, or the 
complaint committee if authorized by the board, may issue and 
have served upon an unlicensed person or an unlicensed 
certificate holder an order requiring the unlicensed person or 
unlicensed certificate holder to cease and desist from the act 
or practice constituting a violation of the statute, rule, or 
order.  The order shall be calculated to give reasonable notice 
of the rights of the unlicensed person or unlicensed certificate 
holder to request a hearing and shall state the reasons for the 
entry of the order.  No such order shall be issued until an 
investigation of the facts has been conducted pursuant to 
section 214.10. 
    (b) Service of the order is effective when the order is 
served on the unlicensed person, unlicensed certificate holder, 
or counsel of record personally or by certified mail to the most 
recent address provided to the board for the unlicensed person, 
unlicensed certificate holder, or counsel of record.  
    (c) Unless otherwise agreed by the board, or the complaint 
committee if authorized by the board, and the person requesting 
the hearing, the hearing shall be held no later than 30 days 
after the request for the hearing is received by the board.  
    (d) The administrative law judge shall issue a report 
within 30 days of the close of the contested case hearing 
record, notwithstanding Minnesota Rules, part 1400.8100, subpart 
3.  Within 30 days after receiving the report and any exceptions 
to it, the board shall issue a further order vacating, 
modifying, or making permanent the cease and desist orders as 
the facts require.  
    (e) If no hearing is requested within 30 days of service of 
the order, the order becomes final and remains in effect until 
it is modified or vacated by the board. 
    (f) If the person to whom a cease and desist order is 
issued fails to appear at the hearing after being duly notified, 
the person is in default and the proceeding may be determined 
against that person upon consideration of the cease and desist 
order, the allegations of which may be considered to be true. 
    Subd. 4.  [ACTIONS AGAINST APPLICANTS, LICENSEES, OR 
CERTIFICATE HOLDERS.] (a) The board may, by order, deny, refuse 
to renew, suspend for not more than five years, temporarily 
suspend, or revoke the application, certificate, or license of a 
person; censure or reprimand that person; refuse to permit a 
person to sit for examination, or refuse to release the person's 
examination grades if the board finds that the order is in the 
public interest and that, based on a preponderance of the 
evidence presented, the applicant, licensee, or certificate 
holder: 
    (1) has violated a statute, rule, or order that the board 
has issued or is empowered to enforce; 
    (2) has engaged in conduct or acts that are fraudulent, 
deceptive, or dishonest whether or not the conduct or acts 
relate to the practice of public accounting, providing that the 
fraudulent, deceptive, or dishonest conduct or acts reflect 
adversely on the person's ability or fitness to engage in the 
practice of public accounting; 
    (3) has engaged in conduct or acts that are negligent or 
otherwise in violation of the standards established by Minnesota 
Rules, parts 1100.4700 and 1100.4800, where the conduct or acts 
relate to the practice of public accounting; 
    (4) has been convicted of or has pled guilty or nolo 
contendere to a felony or crime, an element of which is 
dishonesty or fraud, or has been shown to have engaged in acts 
or practices tending to show that the applicant, licensee, or 
certificate holder is incompetent or has engaged in conduct 
reflecting adversely on the person's ability or fitness to 
engage in the practice of public accounting; 
    (5) employed fraud or deception in obtaining a certificate, 
license, renewal, or reinstatement or in passing all or a 
portion of the examination; 
    (6) has had the person's public accounting license, 
certificate, right to examine, or other similar authority 
revoked, suspended, canceled, limited, or not renewed for cause 
in any state, commonwealth, or territory of the United States, 
in the District of Columbia, or in any foreign country; 
    (7) has had the person's right to practice before any 
federal, state, or other government agency revoked, suspended, 
canceled, limited, or not renewed; 
    (8) failed to meet any requirement for the issuance or 
renewal of the person's license or certificate; or 
    (9) with respect to temporary suspension orders, has 
committed an act, engaged in conduct, or committed practices 
that may result or may have resulted, in the opinion of the 
board or the complaint committee if authorized by the board, in 
an immediate threat to the public.  
    (b) In lieu of or in addition to any remedy provided in 
paragraph (a), the board may require, as a condition of 
continued licensure, possession of certificate, termination of 
suspension, reinstatement of license or certificate, 
examination, or release of examination grades, that the person: 
    (1) submit to a quality review of the person's ability, 
skills, or quality of work, conducted in such fashion and by 
such persons, entity, or entities as the board may require; and 
    (2) complete to the satisfaction of the board such 
continuing professional education courses as the board may 
specify. 
    (c) Service of the order is effective if the order is 
served on the applicant, licensee, certificate holder, or 
counsel of record personally or by certified mail to the most 
recent address provided to the board for the licensee, 
certificate holder, applicant, person or counsel of record.  The 
order shall state the reasons for the entry of the order.  
    (d) All hearings required by this subdivision shall be 
conducted in accordance with chapter 14 except with respect to 
temporary suspension orders, as provided for in subdivision 5, 
paragraph (e). 
    Subd. 5.  [PROCEDURE FOR TEMPORARY SUSPENSION OF LICENSE OR 
CERTIFICATE.] (a) When the board, or the complaint committee if 
authorized by the board, issues a temporary suspension order, 
the suspension is in effect upon service of a written order on 
the licensee, certificate holder, or counsel of record, 
specifying the statute, rule, or order violated.  The order 
remains in effect until the board issues a final order in the 
matter after a hearing or upon agreement between the board and 
the licensee or certificate holder.  
    (b) The order may prohibit the licensee from engaging in 
the practice of public accounting in whole or in part, as the 
facts may require, and may condition the end of such suspension 
on compliance with a statute, rule, or order that the board has 
issued or is empowered to enforce. 
    (c) The order shall set forth the rights to hearing 
contained in this subdivision and shall state the reasons for 
the entry of the order.  
    (d) Within ten days after service of the order, the 
licensee or certificate holder may request a hearing in 
writing.  The board shall hold a hearing before its own members 
within five working days of receipt of a request for hearing on 
the sole issue of whether there is a reasonable basis to 
continue, modify, or lift the temporary suspension.  This 
hearing is not subject to chapter 14.  Evidence presented by the 
board or the licensee or certificate holder shall be in 
affidavit form only.  The licensee, certificate holder, or 
counsel of record may appear for oral argument.  
    (e) Within five working days after the hearing, the board 
shall issue its order and, if the suspension is continued, 
schedule a contested case hearing within 30 days after issuance 
of the order.  The administrative law judge shall issue a report 
within 30 days after closing of the contested case hearing 
record, notwithstanding the provisions of Minnesota Rules, part 
1400.8100, subpart 3.  The board shall issue a final order 
within 30 days after receipt of that report. 
    Subd. 6.  [VIOLATION; PENALTIES; COSTS OF PROCEEDING.] (a) 
The board may impose a civil penalty not to exceed $2,000 per 
violation upon a person who violates an order that the board has 
issued or is empowered to enforce.  
    (b) The board may, in addition, impose a fee to reimburse 
the board for all or part of the cost of the proceedings 
resulting in disciplinary action authorized by this section, the 
imposition of civil penalties, or the issuance of a cease and 
desist order.  The fee may be imposed when the board shows that 
the position of the person who violates a statute, rule, or 
order that the board has issued or is empowered to enforce is 
not substantially justified, unless special circumstances make 
an award unjust, notwithstanding the provisions of Minnesota 
Rules, part 1400.8401.  The costs include, but are not limited 
to, the amount paid by the board for services from the office of 
administrative hearings, attorney fees, court reporters, 
witnesses, reproduction of records, board members' per diem 
compensation, board staff time, and expense incurred by board 
members and staff. 
    (c) All hearings required by this subdivision shall be 
conducted in accordance with chapter 14. 
    Subd. 7.  [REINSTATEMENT.] The board may reinstate a 
suspended, revoked, or surrendered certificate or license upon 
petition of the former or suspended certificate holder or 
licensee.  The board may, in its sole discretion, require that 
the former certificate holder or licensee submit to the board 
evidence of having obtained up to 120 hours of continuing 
professional education credits that would have been required had 
the former certificate holder held a certificate or the former 
licensee been licensed continuously.  The board may, in its sole 
discretion, place any other conditions upon reinstatement of a 
suspended, revoked, or surrendered certificate or license that 
it finds appropriate and necessary to ensure that the purposes 
of sections 326.165 to 326.229 are met.  No suspended 
certificate or license shall be reinstated until the former 
certificate holder or licensee has completed one-half of the 
suspension. 
    Sec. 4.  [INSTRUCTION TO REVISOR.] 
    The revisor shall change the section references from 
"326.23" to "326.229" in the following sections of Minnesota 
Statutes:  3.972, 319A.02, 326.17, 326.18, 326.20, 326.211, 
326.212, 326.22, 326.224, 326.225, and 326.53; and from 
"326.231" to "326.229" in Minnesota Statutes, section 326.20.  
The revisor shall make similar citation changes in Minnesota 
Rules. 
    Sec. 5.  [REPEALER.] 
    Minnesota Statutes 1990, sections 326.23 and 326.231, are 
repealed. 
    Presented to the governor April 17, 1992 
    Signed by the governor April 27, 1992, 1:59 p.m.