Miller v. Stuart

United States Court of Appeals,

Eleventh Circuit.

No. 96-2068.

Stephen M. MILLER, Plaintiff-Appellee,

American Express Tax and Business Services, Incorporated, Plaintiff-Appellee-Cross-Appellant,

v.

George STUART, Secretary, as Head of the Florida Dept. of Business and Professional
Regulation; John P. Baumann, Jr.; Charles H. Calhoun; Shaun M. Davis; Malcolm R. Duggan;
Mirtha V. Martin; Francisco J. Paredes; Andrea A. Spottswood; David MacNamara; Zoya W.
Phillips, Defendants-Appellants-Cross-Appellees.

July 30, 1997.

Appeals from the United States District Court for the Northern District of Florida. (No. 94-CV-
40526-MMP), Maurice M. Paul, Judge.

Before DUBINA and BLACK, Circuit Judges, and O'KELLEY*, Senior District Judge.

BLACK, Circuit Judge:

Stephen M. Miller, a Certified Public Accountant (CPA) employed by American Express Tax

and Business Services, Inc. (American Express), presents a First Amendment challenge to the State

of Florida's regulation of public accountancy. The State's regulatory scheme prevents Miller from

disclosing his CPA license to the public while performing accounting and tax services because he

is employed by American Express, a firm not owned by CPAs. On cross-motions for summary
judgment, the district court granted summary judgment in favor of Miller and dismissed American

Express. We affirm the grant of summary judgment in favor of Miller, but reverse the district court's

dismissal of American Express.

I. BACKGROUND

A. Procedural History

On October 19, 1994, Miller and American Express filed an action against George Stuart,

the Secretary of the Florida Department of Business and Professional Regulation, and members of

*
Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of
Georgia, sitting by designation.
the Florida Board of Accountancy (collectively "the State of Florida" or "the Board"). They sought

a declaration that the State of Florida's statutory scheme violates both the First Amendment and the

Equal Protection Clause of the Fourteenth Amendment. On November 23, 1994, the district court

denied motions filed by Miller and American Express for a temporary restraining order and a

preliminary injunction. After discovery was completed, the parties filed cross motions for summary

judgment. On December 11, 1995, the district court entered an order granting Miller's motion for

summary judgment with respect to his First Amendment claim, denying the State's motion for

summary judgment, and dismissing American Express. The State of Florida appeals the grant of

summary judgment in favor of Miller, and American Express cross appeals its dismissal.

B. Factual Background

Appellee Miller holds an active CPA license in the State of Florida and is the Managing

Director of American Express in Tampa, Florida. American Express performs tax, bookkeeping,

and accounting services for the public through its regional offices in 26 states. As American Express

is a wholly-owned subsidiary of the publicly traded American Express Company, it is neither a

professional service corporation nor owned entirely by CPAs (hereinafter "non-CPA firm").

Therefore, neither American Express nor its employees are eligible to practice public accountancy,

i.e., provide public accounting services. See Fla. Stat. ch. 473.309 (1993) (confining public

accountancy to CPA-owned partnerships, professional service corporations, and limited liability

companies).1 American Express, nevertheless, lawfully employs CPAs to perform accounting and

1
In relevant part, chapter 473.309, provides:

(2) A corporation shall not engage in the practice of public accounting in
this state unless:

(a) It is a professional service corporation duly organized in this or any
other state;

(b) Each shareholder of the corporation is licensed as a certified public
accountant in some state and is principally engaged in the business of the
corporation;

(c) The principal officer of the corporation and any officer or director
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. See id. Accordingly, American Express' CPA employees need not meet the

regulations on public accountancy,3 and they provide the same unregulated accounting and tax

services that non-CPAs lawfully provide.4 See id.; see also Fla. Stat. ch. 473.322(1)(c)

(d) At least one shareholder of the corporation, and each shareholder,
director, and officer domiciled in this state having authority over the practice of
public accounting by the corporation, is a certified public accountant and holds an
active license in this state;

(e) It is in compliance with rules adopted by the board pertaining to
minimum capitalization and adequate public liability insurance; and

(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 public one or more types of
services involving the use of accounting skills, or one or more types of
management advisory or consulting services, by any person holding himself or
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. Stat. ch. 473.309; (2) not pay or accept commissions, Fla. Stat. ch.
473.3205 (1993); (3) not accept contingent fees, Fla. Stat. ch. 473.319 (1993); and (4) meet
Board promulgated independence and competence standards, Fla. Stat. ch. 473.315 (1993).
4
American Express' CPA employees' services are, nevertheless, indirectly regulated to the
extent that CPAs remain subject to disciplinary action by the Board for: (1) being convicted of a
crime which directly relates to their ability to practice public accountancy; (2) knowingly filing
false reports, failing to file reports as required by state or federal law, or obstructing their filing;
(Supp.1994).

C. The First Amendment Claim

1. Appellee Miller

In his complaint, Miller sought to vindicate an asserted First Amendment right to disclose

his CPA designation to current and prospective 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). The Board

would then have the ability to revoke his license for unlawfully practicing public accountancy at

American Express, a non-CPA firm. See Fla. Stat. chs. 473.323(1)(a), 473.323(3)(b). Miller,

therefore, sought to enjoin the State of Florida from enforcing its statutory scheme, asserting that

it infringed upon his First Amendment right by preventing 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. Miller did not seek to

have Fla. Stat. ch. 473.309, the statute that confines public accountancy to CPA-owned professional

service corporations, invalidated. That is to say, Miller did not seek a right to provide public

accountancy services that meet all the regulations on public accountancy, see supra note 3, except

for those stated in Fla. Stat. 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. Stat. ch. 473.322. Consequently, American

Express also sought a declaratory judgment that under the First Amendment, the State of Florida

may not proceed against it for the unlawful practice of public accountancy.6

II. STANDARD OF REVIEW

This Court reviews the district court's grant of summary judgment de novo, applying the

same legal standards used by the district court. Parks v. City of Warner Robins, 43 F.3d 609, 612-13

(11th Cir.1995). Where, as here, the facts related to the issue of standing are not in dispute, this

Court reviews a district court's ruling that a party lacks standing de novo. See Wilderness Soc'y v.

Alcock, 83 F.3d 386, 389 (11th Cir.1996).

III. DISCUSSION

A. Appellee Miller

1. District Court Holding and Issues on Appeal

The district court found that this case implicated the First Amendment and that Appellee

Miller's holding out constituted commercial speech. In applying the four-part standard of Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341

(1980), the district court further held that Florida's statutory scheme violates the First Amendment

to the extent that it prevents Miller from holding himself out as a CPA at American Express. On

appeal, the State of Florida maintains that this case does not implicate the First Amendment.

Alternatively, the State of Florida contends that Miller's holding out is not protected commercial

speech because it is misleading. The State of Florida further asserts that even if the speech in

question is not misleading, the statutory scheme withstands constitutional scrutiny because the

6
As the district court did not address the equal protection claims of Miller and American
Express, those claims are not before us.
restrictions on speech are narrowly tailored and further substantial state interests.

2. Whether this Case Implicates the First Amendment

The Supreme Court has already found that an actively licensed CPA's use of the CPA

designation constitutes commercial speech. See Ibanez v. Florida Dep't of Bus. & Prof'l Regulation,

512 U.S. 136, 142, 114 S.Ct. 2084, 2088, 129 L.Ed.2d 118 (1994) ("The Board correctly

acknowledged that Ibanez' use of the CPA and CFP designations was "commercial speech.' "); see

also Edenfield v. Fane, 507 U.S. 761, 765, 113 S.Ct. 1792, 1797, 123 L.Ed.2d 543 (1993) (in-person

solicitation by a CPA is commercial speech); Peel v. Attorney Registration & Disciplinary Comm'n,

496 U.S. 91, 99, 110 S.Ct. 2281, 2287, 110 L.Ed.2d 83 (1990) (an attorney's holding out as a

Certified Civil Trial Specialist, a credential granted by the National Board of Trial Advocacy, is

commercial speech).

The State of Florida nevertheless insists 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). The Ibanez decision did not resolve this precise issue. Sylvia Ibanez, a lawyer-CPA,

had used her CPA designation in commercial advertising related to her legal practice, but had not

licensed her professional service corporation with the Florida Board of Accountancy because she

claimed that she was not practicing public accountancy. Ibanez, 512 U.S. at 138-40, 114 S.Ct. at

2086-88. The Board brought a disciplinary proceeding, asserting inter alia that Ibanez' holding out

in conjunction with her performance of services involving the 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. See Brief for the Florida Dep't of Bus. & Prof'l Regulation

at 14-19, Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 114 S.Ct. 2084, 129

L.Ed.2d 118 (1994). The Board dropped this charge prior to the close of the administrative hearing,

however. Ibanez, 512 U.S. at 140, 114 S.Ct. at 2087. Before the Supreme Court, the Board asserted

that Ibanez' practice of public accountancy in an unlicensed firm was misleading. See Brief for the
Florida Dep't of Bus. & Prof'l Regulation at 19 n.7. In rejecting the Board's arguments, the Court

held:

To survive constitutional review, the Board must build its case on specific evidence of
noncompliance. Ibanez has neither been charged with, nor found guilty of, any professional
activity or practice out of compliance with the governing statutory or regulatory standards....
Notably, the Board itself withdrew the only charge against Ibanez of this kind, viz., the
allegation that she practiced public accounting in an unlicensed firm.

Ibanez, 512 U.S. at 144 & n. 8, 114 S.Ct. at 2089 & n. 8 (citations omitted). The Supreme Court,

therefore, did not address whether the First Amendment would have been implicated had the Board

charged Ibanez with practicing public accountancy in an unlicensed firm. This case squarely

presents the very question the Supreme Court reserved—whether the First Amendment is implicated

when the Board threatens prosecution of a CPA for holding out while performing accounting and

tax services in an unlicensable non-CPA firm.

We reject the proposition that the State of Florida's statutory scheme is insulated from First

Amendment review because it incorporates commercial speech into a class of regulated activity it

refers to as public accountancy. "[A] court may not escape the task of assessing the First

Amendment interest at stake" based on the label the state has placed upon the speech in question.

See Bigelow v. Virginia, 421 U.S. 809, 826, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 (1975). Whether

Miller holds out in conjunction with performing accounting and tax services or performing other

services, the fact remains that his holding out conveys significant information about his compliance

with the education, competence, and character requirements for a CPA license. See Peel, 496 U.S.

at 101, 110 S.Ct. at 2288. Holding out to prospective and current clients in both situations allows

Miller to advertise his qualifications, "educate the market and stimulate demand for his product or

service." Edenfield, 507 U.S. at 766, 113 S.Ct. at 1797. Nor are we persuaded that holding out loses

its protections under the First Amendment because it is a "subordinate component" of Miller's

business transaction of performing accounting and tax services. See Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447, 457, 98 S.Ct. 1912, 1919, 56 L.Ed.2d 444 (1978). Guided by this Supreme Court

precedent, we conclude that a CPA's holding out while offering to perform or performing accounting

and tax services for the public constitutes commercial speech and therefore warrants protection
under the First Amendment.7

3. The Central Hudson Standard

As holding out in offering to perform or performing accounting and tax services constitutes

commercial speech, the State of Florida must justify its restrictions under the Central Hudson

standard. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343,

65 L.Ed.2d 341 (1980). Under Central Hudson and its progeny, the state must show that:

(a) the speech concerns unlawful activity or is misleading. Edenfield, 507 U.S. at 768, 113 S.Ct. at
1799. The government may completely ban false and inherently misleading commercial
speech. Id.;

(b) it has a substantial interest in proscribing speech. Edenfield, 507 U.S. at 769, 113 S.Ct. at 1799.
"[T]he Central Hudson standard does not permit us to supplant the precise interests put
forward by the State with other suppositions." Id. at 768, 113 S.Ct. at 1798;

(c) the regulation advances the asserted state interest in a direct and material way. Edenfield, 507
U.S. at 770, 113 S.Ct. at 1800. "[T]he regulation may not be sustained if it provides only
ineffective or remote support for the government's purpose." Id. (quoting Central Hudson,
447 U.S. at 564, 100 S.Ct. at 2350); and

(d) the extent of the restriction is in reasonable proportion to the interest served. Board of Trustees
of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388
(1989).

In shouldering its burden, a state may not rely on "speculation or conjecture," but must "demonstrate

that the harms it recites are real and that its restriction will in fact alleviate them to a material

degree." Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800. This requirement is critical, since

otherwise "a State could with ease restrict commercial speech in the service of other objectives that

could not themselves justify a burden on commercial expression." Rubin v. Coors Brewing Co., 514

U.S. 476, 487, 115 S.Ct. 1585, 1592, 131 L.Ed.2d 532 (1995) (quoting Edenfield, 507 U.S. at 771,

113 S.Ct. at 1800).

a. Whether the Speech Concerns Unlawful Activity or is Misleading

The State of Florida concedes that Miller's holding out as a CPA conveys truthful

information about his compliance with the predicate requirements for obtaining a CPA license.

7
But see Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1432-33 (9th
Cir.1995) (statutory scheme that prohibited a CPA from accepting commissions in the
performance of accounting and tax services only if he held out did not implicate the First
Amendment even though it prevented the CPA from holding out in his accountancy practice).
Nonetheless it asserts that it is misleading because he is impressing the consumer that he is

providing regulated public accounting services associated with CPAs when in fact he is providing

services that any non-CPA can provide. The district court found that the State of Florida failed to

produce any empirical evidence showing consumers will be misled in the manner the State suggests.

The district court's finding is supported by the record. The State of Florida relied solely on

"speculation and conjecture" to support its assertion that Miller's holding out while performing

accounting and tax services would mislead the public into believing that he is providing regulated

public accounting services. See Edenfield, 507 U.S. at 770, 113 S.Ct. at 1800. The State of Florida

has failed to carry its burden under the first part of the Central Hudson inquiry.

b. Whether the State has a Substantial Interest in Proscribing Speech

The State of Florida asserted the following interests at the district court: "first, protecting

consumers from unqualified accountants through maintenance of a professional and regulatory

scheme over individual accountants and accounting firms, and the accounting services they provide;

and second, ensuring the accuracy of commercial information disseminated to consumers." The

district court credited the State's interests as substantial. We assume, without deciding, that the

State's interests are substantial.

c. Whether the Regulation Advances the State Interest in a Direct and Material Way

The district court assumed, without deciding, that the statutory scheme advanced the State's

asserted interests in a direct and material way. We also assume, but do not decide, that the evidence

presented by the State of Florida sufficed to carry its burden of proving that its interests are directly

and materially advanced.

d. Whether the Extent of the Restriction is in Reasonable Proportion to the Interest Served

The district court found that the State of Florida had not carried its burden of demonstrating

that its statutory scheme was narrowly tailored because "a disclaimer or some other form of

additional disclosure [would constitute] a narrower limitation that would allow Plaintiff Miller to

hold himself out as a CPA in a non-misleading manner." The State of Florida nevertheless insists

that there is a reasonable fit between the statutory scheme and its substantial interests. According
to the State of Florida,

Miller would be in a worse position if Florida did not utilize a "holding out" trigger. If
Florida found that Miller and other CPAs were engaged in the practice of public accounting
merely because they have a CPA license and are doing accounting and tax work, the result
would be that Miller and other CPAs could not work for firms like [American Express] as
licensed CPAs because they would be providing [public accounting services] in an
[unlicensable non-CPA] firm. Thus, Florida's definition of public accounting actually has
the effect of narrowing the scope of regulation.

While the State of Florida describes its statutory scheme as narrow, its argument relies on

faulty "greater-includes-the-lesser" reasoning. That is to say, the State is asserting that if it can

wholly prohibit Miller from performing accounting and tax services for the public at a non-CPA

firm, surely it can allow him to perform these services subject to the limitation that he may not hold

out. The government, however, may not justify its regulation of speech as a "reasonable choice" by

comparing it to a more intrusive non-speech regulatory alternative. 44 Liquormart, Inc. v. Rhode

Island, --- U.S. ----, ----, 116 S.Ct. 1495, 1510-12, 134 L.Ed.2d 711 (1996) (plurality opinion)

(striking down a ban on alcohol price advertisement that was intended to promote temperance by

causing higher alcohol prices because the state could promote its temperance goal through "obvious

... alternative forms of regulation that would not involve any restriction on speech"); Coors Brewing

Co., 514 U.S. at 489, 115 S.Ct. at 1593 (holding that a federal law prohibiting beer labels from

displaying alcohol content violated the First Amendment because available alternatives—including

directly limiting the alcohol content of beers—could have achieved the government's aim without

suppressing speech). The danger in accepting such an argument is that it would allow the state to

use restrictions on commercial speech to shield its policies "from the public scrutiny that more

direct, nonspeech regulation would draw." 44 Liquormart, --- U.S. at ----, 116 S.Ct. at 1511

(plurality opinion). Therefore, the State's argument that it chose the suppression of commercial

speech over a more intrusive nonspeech regulation of public accountancy is unavailing.

The State of Florida also asserts that, "[q]uite simply, Florida, along with other states,

created the title, imbued it with meaning, and may decide the terms and conditions under which the

title can be used." The fact that the State has chosen to license individuals to use the CPA title does

not change the Central Hudson analysis. "Even though government is under no obligation to
provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit

may be conditioned on the surrender of a constitutional right." 44 Liquormart, --- U.S. at ----, 116

S.Ct. at 1513 (plurality opinion). Accordingly, the State of Florida may not impose as a condition

of licensure a requirement that is violative of the First Amendment.

Consequently, we hold that the State of Florida has failed to justify the speech restriction

inherent in its statutory scheme, which completely prevents Miller from holding himself out as a

CPA, because it has not shown the scheme to be narrowly tailored. As the State of Florida has failed

to justify its statutory scheme under the Central Hudson 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. District Court's Grant of Relief to Similarly Situated CPAs

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. This injunction is to remain in full force and effect until
further order of the Court.

(emphasis added). We note, however, that Cross-Appellant American Express' claim on behalf of

its CPA employees was not before the district court and Appellee Miller did not initiate a class

action suit seeking to vindicate the constitutional rights of similarly situated CPAs. Consequently,

in granting relief to "similarly situated individuals," the district court improperly granted relief to

persons who were not parties to the litigation. We therefore vacate the grant of summary judgment

in favor of individuals other than Appellee Miller.
B. Cross-Appellant American Express

1. District Court Holding and Issues on Appeal

The district court concluded that American Express was neither challenging the State of

Florida's prohibition on an unlicensed firm from holding itself out as an accounting firm nor seeking

to hold itself out as an accounting firm. Consequently, the district court considered it unlikely that

American Express would "be prosecuted for a constitutionally protected activity." Absent the threat

of prosecution, the district court determined that American Express had not suffered injury-in-fact,

one of the constitutional prerequisites for standing. See United States v. Hays, 515 U.S. 737, ----,

115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995). The district court therefore dismissed American

Express for lack of standing. On appeal, American Express asserts that it has standing because it

sought to vindicate a right to inform the public that it employs CPAs, as well as to shield itself from

prosecution when its CPA employees hold out while performing accounting and tax services for the

public.

2. Whether American Express has Standing

To demonstrate constitutional standing, a plaintiff must show injury-in-fact, a causal link

between the injury and the conduct complained of, and that a favorable decision would redress his

injury. Hays, 515 U.S. at ----, 115 S.Ct. at 2435. "A plaintiff stating that he intends to engage in

a specific course of conduct arguably affected with a constitutional interest ... does not have to

expose himself to enforcement to be able to challenge the law." Jacobs v. The Florida Bar, 50 F.3d

901, 904 (11th Cir.1995) (internal quotation marks omitted). Instead, a plaintiff can have standing

where it is likely he will be prosecuted for engaging in a constitutionally protected activity. Id.

We find that American Express satisfies these requirements. American Express is suing to

vindicate its asserted First Amendment right to commercially advertise 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). Moreover,
were its CPA employees to hold out while performing accounting and tax services for the public,

American Express as a separate corporate entity would also be engaged in the unlawful practice of

public accountancy. See Garcia v. Texas State Bd. of Medical Examiners, 384 F.Supp. 434, 436

(W.D.Tex.1974) (noting that when a corporation employs a licensed physician to treat patients and

itself receives the fee, the corporation is engaged in the practice of medicine), aff'd, 421 U.S. 995,

95 S.Ct. 2391, 44 L.Ed.2d 663 (1975). Consequently, American Express can be prosecuted either

for exercise of its commercial speech rights or for its CPA employees' exercise of their commercial

speech rights. American Express therefore has standing because its injury is real and the relief

requested in this action would directly redress its injury.

IV. CONCLUSION

For the reasons stated in this opinion, we affirm the grant of summary judgment in favor of

Appellee Miller, vacate the grant of summary judgment in favor of individuals other than Appellee

Miller, reverse the district court's dismissal of Cross-Appellant American Express, and remand the

case to consider American Express' First Amendment claim.

AFFIRMED in part, VACATED in part, REVERSED in part, and REMANDED.