ALJDEC decisions subject to certification as final

12F-2011.128-ACY · State Board of Accountancy · 2012-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2012 APPEARANCES: Robert C. Hofmann did not appear. The Arizona State Board of Accountancy was represented by Assistant Attorney General Seth T. Hargraves. 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 commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 2. The Arizona State Board of Accountancy (“Board”) is the authority for regulating the profession of certified public accountants in the State of Arizona. 3. At hearing, the Board submitted credible evidence to establish the following facts: 3.1 Robert C. Hofmann (“Respondent”) is the holder of Certified Public Accountant Certificate No. 2300-R issued by the Board. The certificate allows Respondent to practice as a certified public accountant in Arizona. 3.2 On March 31, 2010, Respondent filed a renewal application for his certificate for the period of March 31, 2010 to March 31, 2012. In his renewal application, Respondent indicated that his mailing preference was to his business address at 6200 E. Thomas Road, #102, Scottsdale, Arizona 85251. 3.3 On June 6, 2011, the Board received a written complaint against Respondent from CW, who had attempted to obtain her deceased mother’s tax records from Respondent. CW complained that after she spoke to Respondent on May 3, 2011, Respondent never contacted her again. 3.4 By letter dated June 10, 2011, Board staff informed Respondent of CW’s complaint, designated as File No. 2011.128. Respondent was advised that he was required to file a written response to the complaint with the Board no later than 30 days from the date of the letter pursuant to A.A.C. R4-1-455.03(F). The letter was sent to Respondent by certified mail to 6200 E. Thomas Road, Ste. 102, Scottsdale, Arizona 85251. The signed Domestic Return Receipt shows that Respondent received the mailing on June 13, 2011. 3.5 By letter dated July 11, 2011, Respondent sent his response to the complaint in File No. 2011.128 to the Board. Respondent claimed that his client for CW’s mother’s estate was JM, CW’s brother. Respondent stated that CW and JM were at odds over their mother’s estate. Respondent advised that CW could obtain all tax records from her brother. 3.6 By letter dated November 15, 2011, Board staff advised Respondent that the Board had voted to offer him a Decision and Order (by Consent) in File No. 2011.128 at its November 14, 2011 meeting and enclosed a copy of the Decision and Order (by Consent) for Respondent’s signature. Respondent was advised that his written response was required to be filed with the Board within 30 days of November 15, 2011, pursuant to A.A.C. R4- 1-455.03(F). The letter was sent to Respondent at his business address by regular and certified mail. According to the signed Domestic Return Receipt, the Board’s letter dated November 15, 2011, was received by Respondent’s office on November 18, 2011. 3.7 Respondent failed to respond to the Board’s November 15, 2011 letter in File No. 2011.128. 3.8 On or about November 15, 2011, the Board received a second complaint against Respondent. CF, a controller, complained that Respondent failed to return client documents and made errors in filing tax returns. 3.9 By letter dated November 18, 2011, Board staff informed Respondent of the second complaint by CF, designated as File No. 2012.043. Respondent was advised that a response to the complaint had to be filed with the Board within 30 days of November 18, 2011, pursuant to A.A.C. R4-1-455.03(F). The letter was sent to Respondent at his business address by regular and certified mail. The signed Domestic Return Receipt indicates that Respondent’s office received the mailing on November 28, 2011. 3.10 The Board referred CW’s and CF’s complaints to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. 3.11 On January 11, 2012, the Board issued a Complaint and Notice of Public Hearing[1] charging Respondent with committing acts of unprofessional conduct. The Complaint and Notice of Public Hearing informed the parties of the time, date, and location of the evidentiary hearing before the OAH. The Complaint and Notice of Public Hearing was sent to Respondent at his business address of record. CONCLUSIONS OF LAW 1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to 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 failures to timely respond to the Board’s June 10, 2011, November 15, 2011, and November 18, 2011 requests for responses to the complaints constitute violations of A.R.S. §§ 32-741(A)(15) and 32- 741(A)(9), specifically A.A.C. R4-1-455.03(F), as charged by the Board. 4. The above-described violations by Respondent constitute a failure by Respondent to comply with the professional standards set forth in A.A.C. R4-1-455.03(A)(1) and (3), as charged by the Board. 5. The evidence of record supports the Board’s position that Respondent’s Certified Public Accounting Certificate No. 2300-R should be revoked for the above-described violations, pursuant to A.R.S. § 32- 741(A)(15), as defined in A.R.S. § 32-701(6). RECOMMENDED ORDER Respondent’s Certified Public Accountant Certificate No. 2300-R shall be revoked on the effective date of the Order entered in Board File Nos. 2011.128 and 2012.043. 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 five days from the date of that certification.

Done this day, March 15, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

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

----------------------- [1] OAH Docket No. 12F-2011.128-ACY and ASBA File Nos. 2011.128 and 2012.043.

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