1999 Minnesota Statutes

     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 a licensee who has previously been subject 
 to a disciplinary order by the board, an unlicensed person, an 
 unlicensed certificate holder, or a firm an order requiring the 
 licensee, unlicensed person, unlicensed certificate holder, or 
 firm 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 
 licensee, unlicensed person, or unlicensed certificate holder, 
 or firm 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 licensee, unlicensed person, unlicensed 
 certificate holder, firm, or counsel of record personally or by 
 certified mail to the most recent address provided to the board 
 for the licensee, unlicensed person, unlicensed certificate 
 holder, firm, 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. 

    (g) In lieu of or in addition to the order provided in 
 paragraph (a), the board may require the applicant, licensee, 
 unlicensed certificate holder, or firm to provide to the board a 
 true and complete list of the person's clientele so that they 
 can, if deemed necessary, be notified of the board's action.  
 Failure to do so, or to provide an incomplete or inaccurate 
 list, is an act discreditable. 

    Subd. 4.    Actions against applicants, licensees, or 
 certificate holders.  (a) The board may, by order, deny, 
 refuse to renew, suspend, temporarily suspend, or revoke the 
 application, certificate, or license of a person; censure or 
 reprimand that person; prohibit that person from preparing tax 
 returns or unaudited financial statements; 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, has pled guilty or nolo 
 contendere to, or is sentenced as a result of the commission of 
 a felony or crime, an element of which is dishonesty or fraud, 
 or has been shown to have or admitted to having 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 whether or not a 
 plea was entered or withheld; 

    (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, 
 or has committed unprofessional acts for which the person was 
 otherwise disciplined or sanctioned, including, but not limited 
 to, being ordered to or agreeing to cease and desist from 
 prescribed conduct, 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 for cause, or has committed 
 unprofessional acts for which the person was otherwise 
 disciplined or sanctioned, including, but not limited to, being 
 ordered to or agreeing to cease and desist from prescribed 
 conduct; 

    (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, firm, certificate holder, 
 person, 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. 4a.    Other actions against applicants, licensees, 
 or certificate holders.  (a) In addition to the remedies 
 authorized by subdivision 4, the board may enter into an 
 agreement with the applicant, licensee, or certificate holder 
 for corrective action and may unilaterally issue a warning to an 
 applicant, licensee, or certificate holder. 

    (b) The board shall not use agreements for corrective 
 action or warnings in any situation where the applicant, 
 licensee, or certificate holder has been convicted of or pled 
 guilty or nolo contendere to a felony or crime and such felony 
 or crime is the basis of the board's action against the 
 applicant, licensee, or certificate holder; where the conduct of 
 the applicant, licensee, or certificate holder indicates a 
 pattern of repeated violations of subdivision 4, paragraph (a), 
 or the rules of the board; or where the board concludes that the 
 conduct of the applicant, licensee, or certificate holder will 
 not be deterred other than by disciplinary action pursuant to 
 subdivision 3, 4, or 5. 

    (c) Agreements for corrective action may be used by the 
 board, or the complaint committee if authorized by the board, 
 where the violation committed by the applicant, licensee, or 
 certificate holder does not warrant disciplinary action pursuant 
 to subdivision 3, 4, or 5, but where the board, or the complaint 
 committee if authorized by the board, determines that corrective 
 action is required to prevent further such violations and to 
 otherwise protect the public.  Warnings may be used by the 
 board, or the complaint committee if authorized by the board, 
 where the violation of the application, licensee, or certificate 
 holder is de minimis, does not warrant disciplinary action 
 pursuant to subdivision 3, 4, or 5, and does not require 
 corrective action to protect the public. 

    (d) Agreements for corrective action shall not be 
 considered disciplinary action against the person's application, 
 license, or certificate.  However, agreements for corrective 
 action are public data.  Warnings shall not be considered 
 disciplinary action against the person's application, license, 
 or certificate and are private data. 

    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, statute, or 
 rule 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, 
 including reasonable investigative costs, resulting in 
 disciplinary or corrective 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 and reasonable investigative 
 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. 

    HIST: 1992 c 542 s 3; 1998 c 340 s 16-19