ALJDEC decisions subject to certification as final

13F-2012.040-ACY · State Board of Accountancy · 2013-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2013 APPEARANCES: Bruce Bieszki 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 Arizona State Board of Accountancy (“Board”) is the authority for regulating the practice of public accounting by certified public accountants in the State of Arizona. 2. Bruce Bieszki (“Respondent”) is the holder of Certified Public Accountant Certificate No. 7761-E issued by the Board. This certificate enables Respondent to practice as a certified public accountant in the State of Arizona. 3. On December 6, 2012, the Board issued a Complaint and Notice of Public Hearing in ASBA File No. 2013.040,[1] advising Respondent that an evidentiary hearing would be conducted before the Office of Administrative Hearings, an independent agency, on January 29, 2013, at 8:00 a.m., “to determine whether good cause exists to revoke, suspend or take any other disciplinary action, as defined in A.R.S. § 32-701(6), against Certified Public Accounting certificate No. 7761(E) issued to” Respondent. The Complaint and Notice of Public Hearing alleged unprofessional conduct by Respondent concerning his reporting of continuing professional education (“CPE”) courses on his biennial renewal application and his failure to respond to the Board’s inquiry during its investigation. The Complaint and Notice of Public Hearing was mailed to Respondent at his address of record with the Board. 4. 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. 5. All registrants must biennially register with the Board and submit satisfactory proof that they have completed CPE requirements promulgated by the Board.[2] 6. All registrants are required to complete 80 hours of CPE during the two-year period immediately preceding their registration renewal.[3] 7. All registrants are required to maintain for three years and to provide the Board upon request the following documents to support their reported CPE: course outline, proof of attendance or participation, and written proof of completion.[4] 8. On or about August 16, 2011, Respondent submitted his biennial registration application to the Board for the period of September 30, 2011, to September 30, 2013. 9. On his biennial registration application, Respondent indicated that he had completed 80 hours of CPE. Respondent signed the biennial registration application certifying that the CPE information he reported was true, that he understood that the CPE was subject to approval by the Board, and that he would retain all CPE documentation for three years following the biennial registration. 10. On July 11, 2012, the Board sent Respondent a letter notifying him that the Board’s CPE Committee conducts monthly audits of registrants’ CPE records. The audits are conducted to verify that each course reported on biennial registration applications was actually completed and that the subject matter of each course was acceptable to qualify the course for CPE credit. Respondent was further notified that his certificate had been randomly selected for an audit that required Respondent to provide the Board with copies of specified documents within 30 days. 11. On August 6, 2012, Respondent provided Board staff with certificates of completion for 80 hours of CPE courses reported during the previous biennial registration period. Upon review, Board staff noted that Respondent had not provided the associated course outlines. Respondent was notified that the materials supplied to Board staff did not contain required course outlines. No replacement documentation was received by Board staff. 12. On or about September 25, 2012, the Board’s CPE Committee reviewed the documentation that had been submitted by Respondent. The CPE Committee determined that Respondent had failed to provide adequate documentation to support the CPE that he had claimed on his biennial registration application because he had failed to provide any course outlines. 13. Registrants are required to respond to communications from the Board within 30 days of the mailing of such communications by registered or certified mail.[5] 14. On October 25, 2012, Board staff sent Respondent a letter by regular and by certified mail to his address of record with a settlement offer to resolve the issues regarding Respondent’s CPE deficiencies. Pursuant to A.A.C. R4-1-455.03(F), the letter requested that Respondent respond within 30 days as to whether or not he would accept the Board’s offer. 15. On October 26, 2012, the Board staff’s certified letter was received and signed for by an individual at Respondent’s address of record. 16. Respondent did not respond to the Board’s October 25, 2012 request. CONCLUSIONS OF LAW 1. The Board has been created and authorized to regulate and control the profession of certified public accountancy in Arizona.[6] 2. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at his address of record was reasonable and Respondent is deemed to have received notice of the hearing.[7] 3. Pursuant A.R.S. § 41-1097.07(G)(2), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence.[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] 4. Under A.R.S. § 32-741(A), after notice and opportunity for hearing, the Board may revoke or suspend, or may take additional disciplinary action as defined by A.R.S. § 32-701(6)[10] against Respondent’s Certified Public Accountant Certificate No. 7761-E. 5. Pursuant to A.A.C. R4-1-102(A), Respondent is deemed to have knowledge of the Board’s rules. 6. Respondent’s failure to document his completion of the requisite hours for CPE for his biennial registration renewal constitutes a violation of A.R.S. § 32-741(A)(6),[11] specifically A.R.S. § 32-730(D).[12] 7. Respondent’s failure to comply with Board requests for CPE documentation constitutes a violation of A.R.S. § 32-741(A)(15).[13] 8. Respondent’s failure to document his completion of the requisite hours of CPE constitutes a violation of A.R.S. § 32-741(A)(9),[14] specifically a failure to comply with the CPE requirements set forth in A.A.C. R4-1-453(D)(1)[15] and a failure to comply with the professional standards set forth in A.A.C. R4-1-153(F).[16] 9. Respondent’s failure to respond to the Board’s October 25, 2011 letter constitutes a violation of A.R.S. § 32-741(A)(9), specifically A.A.C. R4-1-455.03(F).[17] 10. A.R.S. § 32-741(D) provides that the Board shall, after notice and a hearing, suspend the certificate of a registrant who fails to show proof of compliance with the CPE requirements established by the Board. If the registrant fails to reinstate the certificate within 12 months from the date of the suspension, then the certificate expires. 11. Pursuant to A.R.S. § 32-701(6)(a), the Board may impose “[a]n administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted pursuant to this chapter” in this matter. At the hearing, the Board’s counsel requested that Respondent be assessed a $500.00 civil penalty for his failure to maintain CPE documentation and another $500.00 civil penalty for his failure to respond to the Board’s October 25, 2012 letter. 12. Pursuant to A.R.S. § 32-701(6)(f), the Board may require Respondent to reimburse “the board’s costs of investigation and proceedings initiated under this chapter” in this matter. At the hearing, the Board’s counsel requested that Respondent be assessed the Board’s costs of its investigation and the proceedings in this matter. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order entered in ASBA File No. 2013.040, Respondent’s Certified Public Accountant Certificate No. 7761-E be suspended for a period of 12 months or until Respondent submits proof that is satisfactory to the Board that he has either provided the requested CPE documentation or has completed the required CPE for the 2011 registration renewal, whichever occurs earlier. It is further recommended that pursuant to A.R.S. § 32-741(D), if Respondent fails to submit proof that is satisfactory to the Board that he has either produced his CPE documentation supporting his claimed CPE hours in his 2011 registration renewal or has subsequently completed CPE with proper documentation for the 2011 registration renewal within 12 months from the effective date of the Order entered in ASBA File No. 2013.040, then Respondent’s Certified Public Accountant Certificate No. 7761-E shall be deemed to have expired. It is further recommended that pursuant to A.R.S. § 32-701(6)(a), Respondent shall be required to pay to the Board a total civil penalty in the amount of $1,000.00 within 12 months of the effective date of the Order entered in ASBA File 2013.040 as a condition of keeping his Certified Accountant Certificate No. 7761-E in good standing. It is further recommended that pursuant to A.R.S. § 32-701(6)(f), Respondent shall be required to pay to the Board its costs of investigation and of proceeding to hearing in this matter within 12 months of the effective date of the Order entered in ASBA File No. 2013.040 as a condition of keeping his Certified Accountant Certificate No. 7761-E in good standing.

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 shall be five days from the date of the certification.

Done this day, February 19, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy ----------------------- [1] See Exhibit 6. The Office of Administrative Hearings’ Docket No. 13F- 2012.040-ACY originated with the Request for Hearing. [2] See A.R.S. § 32-730(D). [3] See A.A.C. R4-1-453(D)(1). [4] See A.A.C. R4-1-453(F). [5] See A.A.C. R4-1-455.03(F). [6] See A.R.S. § 32-701 et seq. [7] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [8] See A.A.C. R2-19-119(A). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] A.R.S. § 32-701(6) defines “disciplinary action” as follows: "Disciplinary action" means any other regulatory sanctions imposed by the board in combination with, or as an alternative to, revocation or suspension of a certificate or registration, including the imposition of: (a) An administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted pursuant to this chapter. . . . . (f) Reimbursement of the board's costs of investigations and proceedings initiated under this chapter. [11] A.R.S. § 32-741(A)(6) allows the Board to revoke or suspend a registrant’s certified public accountant certificate for “[v]iolation of any of the provisions of this chapter.” [12] A.R.S. 32-730(D) requires a certified public accountant to submit satisfactory proof to the Board of the registrant’s compliance with the CPE requirements at the time of the submission of the registrant’s biennial registration application. [13] A.R.S. § 32-741(A)(15) requires a registrant to timely respond or produce information legally requested by the Board or its designee. [14] A.R.S. § 32-741(A)(9) provides that it is a violation of the statute for a registrant to violate a decision, order, or rule adopted by the Board. [15] A.A.C. R4-1-453(D)(1) requires a registrant to 80 hours of CPE in the two years preceding the registration renewal. [16] A.A.C. R4-1-453(F) requires a registrant to maintain CPE documentation for three years and to produce such documentation to the Board upon request. [17] A.A.C. R4-1-455.03(F) requires a registrant to respond to communications from the Board within 30 days of the mailing of such communication sent by registered and/or certified mail.

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