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Civil Division -- New Castle County
April 21, 1998
Carol Ellis, Director
Division of Professional Regulation
Cannon Building, Suite 203
P.O. Box # 1401
Dover, DE 19903
RE: Board of Accountancy Practice Permits
Dear Ms. Ellis:
Your letter dated January 25, 1996, has been referred to me for response. You requested an informal legal opinion on whether, in light of 24 Del.C. § 109(a) and 24 Del.C. § 111(a), an applicant for a permit to practice accountancy, either as a public accountant ("PA") or as a certified public accountant ("CPA"), must demonstrate actual intent to practice in Delaware before a permit can issue from the Board of Accountancy (the "Board"). For the reasons that follow, we conclude that neither 24 Del.C. § 109(a) nor 24 Del.C. § 111(a) imposes such a requirement.
Basic rules of statutory interpretation require that words and phrases be construed according to their common and approved usage. 1 Del.C. § 303. Sections 109(a), relating to CPAs and 111(a), relating to PAs, contain identical language governing the Board's power to grant and renew permits to practice. Specifically, each section states in part that:
The Board shall grant or renew permits to persons who make application and demonstrate their qualifications therefor in accordance with the following subsections of this section. (emphasis added)
24 Del.C. § 109(a); 24 Del.C. § 111(a). The provisions in subsections 109(b) through (f) and 111(b) through (d) do not require the applicant to demonstrate that he or she either intends to practice or is practicing in Delaware.
The word "shall" is a word of command. Black's Law Dictionary, 5th Edition. In the provisions of § 109(a) and § 111(a) set off above, its use limits the Board's discretion and compels the Board to issue or renew permits to practice whenever the applicant satisfies the corresponding requirements of 109(b) through (f) and 111(b) through (d). Because the provisions of 109(b) through (f) and 111(b) through (d) do not require the applicant to demonstrate that he or she either intends to practice or is practicing in Delaware, the applicant need not make such a showing. Further, the Board is not required to perform the difficult task of determining whether the applicant has satisfactorily demonstrated his or her intent.
The introductory language of both sections 109(a) and 111(a), which refers to those who intend to practice or are practicing in Delaware, merely describes those who must obtain and maintain permits to practice. It does not prohibit others from doing so.
Therefore, the Board must issue permits to practice to applicants who demonstrate their qualifications in accordance with 109(b) through (f) or 111(b) through (d), depending on the applicant. The Board may not consider whether the applicant is practicing or intends to practice within the state.
If you have any further questions, please do not hesitate to contact us.
Respectfully,
___________________________
Elizabeth A. Saurman
Deputy Attorney General
Approved:
___________________________
Michael J. Rich
State Solicitor
EAS;eas
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