ALJDEC decisions subject to certification as final

13F-2012.139-ACY · State Board of Accountancy · 2012-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2012 APPEARANCES: Janet E. Western did not appear. The Arizona 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 (“CPAs”) in the State of Arizona. 2. Janet E. Western (“Respondent”) is the holder of CPA Certificate No. 7476-R issued by the Board. This certificate enables Respondent to practice as a CPA in Arizona. 3. Respondent is also the holder of Certified Public Accounting Firm Registration No. 4643- S issued by the Board for Respondent’s business, Janet E. Western, CPA (“Firm”), a sole proprietorship. 4. On September 13, 2012, the Board issued a Complaint and Notice of Public Hearing in the Board’s ASBA File No. 2012.139 charging Respondent and her Firm with allegations of unprofessional conduct and advising the parties of the time, date, and location of an evidentiary hearing in the matter before the Office of Administrative Hearings, an independent agency. The Complaint and Notice of Hearing was sent to Respondent and her Firm at their addresses of record with the Board. 5. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent Respondent and her Firm. After the delay, the Administrative Law Judge conducted the hearing in their absence. 6. On January 31, 2011, the Board received a Registration Renewal Form submitted by Respondent that listed the address of record for Respondent and her Firm as 14022 North 47th Street, Phoenix, Arizona 85032. 7. On June 19, 2012, the Board received a Consumer Complaint against Respondent from one of her clients, R.K. The Board designated the Consumer Complaint as ASBA File No. 2012.139. 8. By letter dated June 21, 2012, Board staff sent by certified mail a copy of the Consumer Complaint to Respondent at her address of record with the Board. The letter requested that Respondent respond to the Consumer Complaint in writing no later than 30 days from the date of the letter, pursuant to A.A.C. R4-1-455.03(F). The Domestic Return Receipt for the mailing reflects that Respondent received the certified mailing. 9. Respondent failed to respond to the Board’s June 21, 2012 letter requesting a written response to the Consumer Complaint. CONCLUSIONS OF LAW 1. The Board has personal and subject matter jurisdiction over Respondent and her Firm pursuant to A.R.S. §§ 32-701 to 32-751 and A.A.C. R4-1- 101 to R4-1-456. 2. The Board has the authority to discipline Respondent and her Firm pursuant to A.R.S. §§ 32-741 and 32-742. 3. Pursuant to A.R.S. § 41-1092.07(G)(2), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 4. The Board established that Respondent failed to respond to the Board’s June 21, 2012 letter requesting her to respond to the Consumer Complaint. Respondent’s failure to respond constitutes a violation of A.R.S. § 32-741(A)(15). That statute required Respondent to timely respond to the Board’s request for the response to the Consumer Complaint. 5. Respondent’s failure to respond to the Board’s June 21, 2012 letter requesting a response to the Consumer Complaint constitutes a violation of A.A.C. R4-1-455.03(F). That rule required Respondent to respond to the Board’s June 21, 2012 letter within 30 days of the certified mailing. 6. Respondent’s failure to respond to the Board’s June 21, 2012 letter requesting a response to the Consumer Complaint constitutes a violation of A.R.S. § 32-741(A)(9). That statute prohibited Complainant from knowingly violating a Board rule, specifically A.A.C. R4-1-455.03(F) in this case. 7. Respondent’s conduct in this matter constitutes a “discreditable act,” as defined in the professional standards set forth in A.A.C. R4-1- 4555.03(A). That rule required that Respondent not commit any act that adversely reflected on her fitness as a CPA in the practice of public accounting. 8. Respondent’s conduct described in the above Findings of Fact and her violations of the above-referenced statutes and rules would also be grounds for disciplinary action against her Firm Registration No. 4643- S, pursuant to A.R.S. § 32-742(A) and (B), and A.A.C. R4-1- 455.03(D)(2). Any discipline imposed by the Board on Respondent’s CPA certificate as a result of these proceedings would affect the eligibility of her Firm Registration No. 4643-S. RECOMMENDED ORDER Certified Public Accountant Certificate No. 7476-R issued to Janet E. Western and Certified Public Accounting Firm Registration No. 4643-S issued to Janet E. Western, CPA, shall be revoked on the effective date of the Order entered in ASBA File No. 2012.139. Respondent shall reimburse the Board’s costs of investigation and proceeding to hearing pursuant to A.R.S. § 32-701(6)(f) within 180 days of the effective date of the Order entered in ASBA File No. 2012.139.

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 (5) days from the date of the certification. Done this day, December 3, 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