Carberry v. State Board of Accountancy

Opinion

DOSSEE, J.

In this action for declaratory relief plaintiff sought a declaration that he is entitled to advertise his business as an “accounting” service even though he is not a certified public accountant. The State Board of Accountancy successfully demurred to the complaint, and the action was dismissed. Plaintiff appeals.

Facts

Plaintiff is not a certified public accountant. He has completed all the eligibility requirements except for the two-year work experience requirement, but he has deliberately chosen not to fulfill that requirement. Plaintiff is an enrolled agent, admitted to practice before the Internal Revenue Service. He operates a sole proprietorship accounting and tax preparation service in San Francisco under the name “Citizens Accounting & Tax Service.”

In March 1993 the Board of Accountancy, the state agency empowered to license certified public accountants, ordered plaintiff either to cease using the term “accounting” in his business name or to add a disclaimer that plaintiff is not licensed by the state. After an exchange of correspondence with the board, plaintiff filed this lawsuit seeking a declaration of his First Amendment right to use the word “accounting” in his business name.

Discussion

Business and Professions Code section 5058 provides that no person may hold himself out as a certified public accountant unless licensed by the Board of Accountancy. The board’s regulation 2 (Cal. Code Regs., tit. 16, § 2) declares the following designations likely to be confused with the title of certified public accountant: “accountant,” “auditor,” “accounting,” or “auditing.”

[773]

In

Moore

v.

California State Bd. of Accountancy

(1992) 2 Cal.4th 999 [9 Cal.Rptr.2d 358, 831 P.2d 798], certiorari denied (1993) _ U.S. _ [122 L.Ed.2d 742, 113 S.Ct. 1364], the Supreme Court rejected the constitutional argument raised by plaintiff here. The court held that although the terms “accounting” or “accountant” may not constitutionally be enjoined if they are accompanied by an explanatory disclaimer, the use of such terms without a modifier is potentially misleading commercial speech and may be banned to prevent deception of the public. The court explained that a disclaimer might, for instance, state that the advertiser is not licensed by the state or that the services offered do not require a state license. (2 Cal.4th at pp. 1023-1024.)