ALJDEC decisions subject to certification as final

12F-2011.130-ACY · State Board of Accountancy · 2011-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2011 APPEARANCES: The Arizona State Board of Accountancy was represented by Assistant Attorney General Seth T. Hargraves. Michael David Linn did not appear. 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. Michael David Linn (“Respondent”) is the holder of Certified Public Accountant Certificate No. 7165-E issued by the Board. The certificate enables Respondent to practice as a Certified Public Accountant in Arizona. 3. Pursuant to A.R.S. § 32-730(D), all registrants must biennially register with the Board and submit satisfactory proof that they have completed the continuing professional education (“CPE”) requirements promulgated by the Board. 4. Pursuant to A.A.C. R4-1-453(D) (1), Respondent was required to complete 80 hours of CPE during the two-year period immediately preceding Respondent’s registration renewal. 5. Pursuant to A.R.S. § 32-741(D), the Board shall, after notice and a hearing, suspend the certificate of any Certified Public Accountant who fails to show proof, in accordance with A.R.S. § 32-730(D), of compliance with the CPE requirements established by the Board. 6. On or about October 28, 2010, Respondent submitted his biennial registration application to the Board. On the application, Respondent documented that he had only completed 57 of the required 80 hours of CPE. 7. In addition to his application, Respondent also submitted a request for a waiver/exemption of the remaining 23 CPE hours. 8. On or about November 15, 2010, the Board voted to deny the waiver/exemption request but granted Respondent a six-month extension to complete the CPE requirement. 9. By certified letter dated November 15, 2010, Board staff notified Respondent of the Board’s decision and requested that he submit the remaining CPE hours to the Board by May 16, 2011. The letter was returned to the Board as unclaimed. 10. Board staff resent the letter to Respondent via regular mail to his address of record with the Board. That mailing was not returned to the Board. 11. At the Board’s June 6, 2011 meeting, the Board voted to offer Respondent a Decision and Order (By Consent) that included a suspension of Respondent’s Certified Public Accountant Certificate No. 7165-E for up to one year or until Respondent cured his CPE deficiency. 12. By certified letter dated June 13, 2011, Board staff advised Respondent of the Board’s offer of the consent agreement with directions to advise the Board of his acceptance or rejection of the offer within 30 days. The mailing was returned to the Board as unclaimed. 13. By letter dated July 13, 2011, Board staff notified Respondent a second time of the Board’s offer of a consent agreement. That mailing was sent to Respondent’s address of record by certified and regular mailing. The certified mailing was returned to the Board as unclaimed. The regular mailing was not returned to the Board. 14. At its September 12, 2011 meeting, the Board voted to file a Complaint and Notice of Hearing for the revocation of Respondent Certified Public Accountant Certificate No. 7165-E for his non-compliance with the CPE requirements and his failure to respond to the Board. 15. On September 16, 2011, the Board issued a Complaint and Notice of Public Hearing charging Respondent with acts of unprofessional conduct. The Complaint and Notice of Public Hearing advised Respondent of the time, date, and location of the evidentiary hearing before the Office of Administrative Hearings, an independent agency. The Complaint and Notice of Public Hearing was sent to Respondent at his address of record with the Board. 16. 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. 17. At hearing, the evidence of record established that Respondent failed to provide the Board with proof that he had completed his CPE hours in full and that Respondent failed to submit any additional documentation to the Board as requested by Board staff. 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. R2-9-119(B), the Board has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-11-119(A). 3. Respondent’s failure to complete the CPE requirements for his biennial renewal, as described in the above Findings of Fact, constitute a violation of A.R.S. § 32-741(A) (6), specifically A.R.S. § 32-730(D). 4. Pursuant to A.A.C. R4-1-102(A), Respondent is deemed to have knowledge of the Board’s rules. Respondent’s failure to complete the CPE requirements for biennial renewal, as described in the above Findings of Fact, constitutes a violation of A.R.S. § 32-741(A) (9), specifically A.A.C. R4-1-453(D). 5. Respondent’s failure to respond to the Board’s CPE extension, as described in the above Findings of Fact, constitutes a violation of A.R.S. § 32-741(A) (15). 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). Respondent’s above- described statutory violations constitute a “discreditable act,” as defined by the rule. 7. Respondent’s conduct described in the above Findings of Fact constitute grounds for the Board’s imposition of discipline against Respondent, pursuant to A.R.S. § 32-741(D). RECOMMENDED ORDER On the effective date of the Order entered in this matter, Respondent’s Certified Public Accountant Certificate No. 7165-E shall be suspended for a period of 12 months or until Respondent submits proof that is satisfactory to the Board that he has completed 23 hours of CPE for his biennial renewal application, whichever occurs earlier. If Respondent fails to submit proof that is satisfactory to the Board that he has completed 23 hours of CPE for his biennial renewal application within 12 month of the effective date of the Board’s Order in this matter, the Board shall deem Respondent’s Certified Public Accountant Certificate No. 7165-E to be expired pursuant to A.R.S. § 32-741(D). In addition to the above-provided discipline imposed upon Respondent, Respondent shall reimburse the Board for the costs of investigation and of proceeding to hearing in this matter within 30 days of the effective date of the Order entered in this matter pursuant to A.R.S. § 32-701(6) (f). In addition to the above-provided discipline and costs imposed, Respondent’s Certified Public Accountant Certificate No. 7165-E shall be suspended until Respondent has timely reimbursed to the Board its costs pursuant to A.R.S. § 32-701(6) (f). 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 (5) days from the date of that certification.

Done this day, November 29, 2011.

/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