ALJDEC decisions subject to certification as final

12F-2010.094-ACY · State Board of Accountancy · 2012-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2011 APPEARANCES: The Arizona State Board of Accountancy was represented by Assistant Attorney General Seth T. Hargraves. Phillip Roque appeared telephonically. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Arizona State Board of Accountancy (“Board”) is the authority for regulating the profession of certified public accountants in the State of Arizona. 2. Phillip Roque (“Respondent”) is the holder of Certified Public Accountant Certificate No. 8934-E issued by the Board. The certificate enables Respondent to practice as a certified public accountant in Arizona. 3. On February 9, 2011, Respondent entered into a “Decision & Order (By Consent)” in ASBA File No. 2010.094 (“February 9th Order”) issued by the Board. 4. The February 9th Order was the result of a consumer complaint against Respondent by a client who had requested that documents be returned to the client by Respondent. Even after the client complied with Respondent’s demand for the payment of $755.00 for the return of the documents, Respondent refused to return the documents. Respondent also failed to notify the Board in writing of his current address. 5. Pursuant to the terms of the February 9th Order, Respondent was required to cooperate fully with the Board’s staff by providing relevant documentation of Respondent’s compliance with the terms and conditions of the February 9th Order, including executing any and all compliance affidavits and release of information forms as may be required by the Board or its designee. Respondent was further required to respond promptly to any request from the Board or its designee for documentation demonstrating Respondent’s compliance with the February 9th Order. If a response was requested pursuant to A.A.C. R4-1-455.03(F), the response was required to be received in the Board’s office no later than the close of business on the 30th day after the request. 6. The February 9th Order also required that Respondent reimburse the Board the sum of $1,677.89, that Respondent pay restitution to the client in the sum of $775.00, and that Respondent complete four hours of continuing professional education in the area of professional ethics within twelve months of the effective date of the February 9th Order. 7. The February 9th Order also required Respondent to obey all laws. 8. The February 9th Order further provided that Respondent’s failure to comply with the February 9th Order, including the General Provisions, would be deemed a violation of the February 9th Order for which the Board, in its sole discretion, could direct that the matter proceed to a noncompliance hearing for the revocation of Respondent’s certificate. 9. Pursuant to A.A.C. R4-1-455.03(F), registrants, when requested, are required to respond to communications from the Board within 30 days from the mailing of such communications by registered or certified mail. 10. On July 22, 2011, Board staff sent Respondent a compliance affidavit by certified mail to his address of record. Pursuant to A.A.C. R4-1- 455.03(F), the cover letter requested that Respondent complete and return the compliance affidavit to the Board within 30 days to document the status of his compliance with the February 9th Order. On July 30, 2011, the certified letter was received and signed for. 11. By letter dated September 6, 2011, Board staff informed Respondent that the Board would review his failure to respond to the Board’s request for the compliance affidavit at its September 12, 2011 Board meeting. The letter was sent to Respondent by regular mail. 12. By letter dated September 20, 2011, Board staff informed Respondent that the Board had voted at its September 12, 2011 meeting to offer him another Decision and Order (by Consent). Respondent was required to respond to that offer within 30 days from the date of the letter. The certified mailing was received by Respondent on September 24, 2011. 13. On October 14, 2011, the Board received a letter from Respondent in which he rejected the Board’s offer. 14. On October 24, 2011, the Board issued a Complaint and Notice of Hearing in ASBA File No. 2010.094/OAH Docket No. 12F-2010.094-ACY (“Complaint”) charging Respondent with unprofessional conduct 15. At the hearing, Respondent contended that his medical health prevented him from complying with the February 9th Order. However, Respondent failed to present any credible evidence to support that contention. 16. Despite his alleged health condition, Respondent was able to complete hours of continuing education in the Fall of 2011. 17. As of the date of the hearing, Respondent had not responded to the Board’s request, and Respondent has not submitted a completed compliance affidavit to the Board. 18. Respondent currently lives in California. CONCLUSIONS OF LAW 1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G) (2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent’s failure to respond to the Board’s request to complete and return the compliance affidavit for the February 9th Order constitutes a violation of A.R.S. §§ 32-741(A) (15) and 32-741(A) (9), specifically A.A.C. R4-1-455.03(F), as charged in the Board’s Complaint. 4. Respondent’s failure to respond to the Board’s request to complete and return the compliance affidavit for the February 9th Order constitutes noncompliance with the February 9th Order and an additional violation by Respondent of A.R.S. § 32-741(A) (9), as charged in the Board’s Complaint. 5. Respondent’s failure to respond to the Board’s request to complete and return the compliance affidavit for the February 9th Order constitutes noncompliance with the February 9th Order by Respondent’s failure to obey all laws, in violation of A.R.S. § 32-741(A) (9), as charged in the Board’s Complaint. 6. Respondent’s conduct described in the above Findings of Fact constitute a failure by Respondent to comply with the professional standards set forth in A.A.C. R4-1-455.03(A) (3), as charged in the Board’s Complaint. 7. Respondent’s conduct warrants disciplinary action against Certificate No. 8934-E, pursuant to A.R.S. §§ 32-741(A) and 32-701(6). RECOMMENDED ORDER Respondent’s Certificate No. 8934-E shall be revoked on the effective date of the Order entered in ASBA File No. 2010.094/OAH Docket No. 12F- 2010.094-ACY. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, January 4, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826