ALJDEC decisions subject to certification as final

13F-2013.003-ACY · State Board of Accountancy · 2012-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2012 APPEARANCES: The Arizona State Board of Accountancy was represented by Assistant Attorney General Seth T. Hargraves; Respondent Brian M. Kunitzer did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Accountancy (the Board) is the state agency authorized pursuant to A.R.S. § 32-701 et seq., to regulate the profession of Certified Public Accountants (CPAs) in the State of Arizona. 2. The Board issued Certified Public Accountant Certificate No. 14817-R to Brian M. Kunitzer (Respondent). This certificate enables Respondent to practice as a certified public accountant (CPA or registrant) in the State of Arizona. 3. A.R.S. § 32-730(D) requires all registrants to register biennially with the Board and to submit satisfactory proof that they have completed the continuing professional education (CPE) that the Board requires. 4. Respondent was required to complete a registration renewal form for the time period of November 30, 2011, through November 30, 2013 (the 2011 registration renewal). 5. On April 30, 2012, five months after the 2011 registration renewal was due, Respondent submitted the 2011 registration renewal to the Board. Respondent indicated his address of record as his residential address. On the 2011 registration renewal, Respondent reported that he completed 0 hours of CPE. 6. Pursuant to A.A.C. R4-1-453(D)(1), Respondent was required to complete hours of CPE during the two-year period immediately preceding his 2011 registration renewal. 7. On May 18, 2012, Board staff sent a letter by regular and certified mail to Respondent at his address of record, providing, in relevant part as follows: On April 30, 2012, the [Board] received your Registration Renewal paperwork. After a preliminary review of your [CPE] it appears your submission does not meet the requirements of Rule R4-1-453(D)(1). Your report reflects 0 hours of the required 80 CPE hours. Please visit the Board’s website at www.azaccountancy.gov for the fillable or non-fillable CPE form. Your CPE form showing the 80 hours (including 16 live hours and hours of Arizona ethics) must be submitted to the Board office by June 18, 2012.

You are hereby requested to respond by submitting the requested documentation within thirty days from the date of this letter. Please be advised that your failure to timely respond and/or submit the requested material may be considered a violation of A.A.C. R4-1-455.03(F), and grounds for disciplinary action against your certificate pursuant to A.R.S. § 32-741(A)(9) and (15), and A.R.S. § 32-741(D).

8. Respondent did not sign for the letter sent by certified mail to his address of record. The letter sent by regular mail to Respondent’s address of record was not returned to the Board. 9. Respondent failed to submit any documentation to the Board and failed to provide proof that he had completed 80 hours of CPE on or before June 18, 2012. 10. At its regularly scheduled July 9, 2012 meeting, the Board voted to file a Complaint and Notice of Hearing for suspension of Respondent’s CPA certificate due to non-compliance with the CPE requirements and non-responsiveness to the Board. 11. The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent state agency, for an evidentiary hearing. 12. On July 13, 2012, the Board issued a Complaint and Notice of Public Hearing, setting a hearing on September 4, 2012, at 8:00 a.m. The Board mailed copies of the Complaint and Notice of Public Hearing to Respondent at his address of record by certified and regular mail and to his business address by regular mail. Respondent did not sign for the letter sent by certified mail to his address of record. The letters sent by regular mail to Respondent’s address of record and business address were not returned to the Board. 13. The Board’s Complaint and Notice of Public Hearing charged Respondent with violating A.R.S. § 32-741(A)(6), specifically A.R.S. § 32-730(D); A.R.S. § 32-741(A)(9), specifically A.A.C. R4-1-453(D); A.R.S. § 32- 741(A)(15); and A.A.C. R4-1-455.03(A). 14. A hearing was held at the OAH on September 4, 2012. The Board submitted four exhibits and presented the testimony of Deputy Director Jim Dubé to establish the facts set forth above. 15. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued. Although the start of the hearing was delayed fifteen minutes to allow Respondent additional travel time, he did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his CPA certificate. 16. Mr. Dubé testified that as of the date of the hearing, Respondent had not submitted any documentation to the Board to establish that he had completed 80 hours of required CPE. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at his address of record and business address was reasonable and Respondent is deemed to have received notice of the hearing. See A.R.S. §§ 41-1092.04; 41-1092.05(D). 2. The Board has been created and authorized to regulate and control the profession of Certified Public Accountancy in Arizona. See A.R.S. § 32-701 et seq. This matter lies within its jurisdiction. 3. The Board bears the burden of proof to establish cause to discipline Respondent’s CPA certificate by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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),[1] against Respondent’s CPA certificate. 5. Respondent’s failure to complete the CPE requirements for the 2011 registration renewal violates A.R.S. § 32-730(D)[2] and provides cause for the Board to discipline his CPA certificate under A.R.S. § 32- 741(A)(6).[3] 6. 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 the 2011 registration renewal also violates A.A.C. R4- 1-453(D)(1)[4]and provides cause for the Board to discipline his CPA certificate under A.R.S. § 32-741(A)(9).[5] 7. Respondent’s failure to respond to the Board’s extension of time to complete and report the required CPE hours provides additional cause for the Board to discipline his CPA certificate under A.R.S. § 32- 741(A)(15).[6] 8. Respondent’s failures to complete the CPE requirement for the 2011 registration renewal or to respond to the Board’s extension of time to complete and report the required CPE hours constitute discreditable acts as defined by A.A.C. R4-1-455.03(A).[7] 9. Under A.R.S. § 32-741(D),[8] Respondent’s failure to complete the CPE requirements for the 2011 registration renewal requires the Board to suspend Respondent’s CPA certificate. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Board’s final order, the Board suspend Respondent Brian M. Kunitzer’s Certified Public Accountant Certificate No. 14817-R for a period of twelve months or until Respondent submits proof that is satisfactory to the Board that he has completed the CPE that the Board required 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 completed the CPE that the Board required for the 2011 registration renewal within twelve months, the Board deem his certificate to be expired. 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, September 17, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy ----------------------- [1] 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. [2] A.R.S. § 32-730(D) provides as follows: At the time of registration, every certified public accountant and public accountant shall as a prerequisite to biennial registration submit to the board satisfactory proof, in a manner prescribed by the board, that the registrant has completed the continuing education requirements established by the board. The board may grant an exemption from continuing professional education requirements for registrants on a demonstration of good cause as determined by the board. [3] A.R.S. § 32-741(A)(6) allows the Board to revoke or suspend a registrant’s CPA certificate for “[v]iolation of any of the provisions of this chapter.” [4] A.A.C. R4-1-453 provides the Board’s requirement for CPE. A.A.C. R4-1- 453(D)(1) provides that “[a] registrant whose last renewal period was for two years shall complete 80 hours of CPE during the two-year period immediately preceding registration renewal.” [5] A.R.S. § 32-741(A)(9) allows the Board to revoke or suspend a registrant’s CPA certificate for “[k]nowing violation of any . . . rule issued or adopted by the board.” [6] A.R.S. § 32-741(A)(15) allows the Board to revoke or suspend a registrant’s CPA certificate for “[f]ailing to respond or furnish information in a timely manner to the board or its designated agent, if the information is legally requested by the board and is in the registrant's possession or control.” [7] A.A.C. R4-1-455.03(A) provides as follows: Discreditable acts: Certified public accountants, public accountants, or firms shall not commit any act that reflects adversely on their fitness to engage in the practice of public accounting, including: 1. Violation of any of the provisions of R4-1-455 through R4-1- 455.04; [or] . . . . 3. Violation of any of the provisions of A.R.S. Title 32, Chapter 6, Article 3, or any rule promulgated under these statutes. [8] A.R.S. § 32-741(D) provides as follows: The board shall, after notice and a hearing, suspend the certificate of any certified public accountant or public accountant who fails to show proof, in accordance with section 32-730, subsection D, of compliance with the continuing professional education requirements established by the board. If the board determines that the failure was for reasonable cause or excusable neglect, the board may require compliance as expeditiously as possible. If the certified public accountant or public accountant fails to reinstate the certificate within twelve months after the date of suspension, the certificate expires. The board shall not reinstate a certificate that has expired pursuant to this subsection unless the certified public accountant or public accountant complies with section 32-748 and all other requirements for reinstatement.

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