FINACT13F-2013.102-ACY.pdf

13F-2013.102-ACY · State Board of Accountancy · 2013-09-20

BEFORE THE ARIZONA STATE BOARD OF ACCOUNTANCY

In the Matter of Certified Public Accountant Certificate No. 3654-E ASBA File No. 2013.102 Issued to: OAH Docket No. 13F-2013.102-ACY RICHARD M. STREETMAN

DECISION AND ORDER

This matter came before Brian Brendan Tully, Administrative Law Judge (ALJ) for the Office of Administrative Hearings on July 18, 2013, for the purpose of determining whether good cause exists for the Arizona State Board of Accountancy (“Board”) to discipline Richard M. Streetman (“Respondent”), certified public accountant (“CPA” or “registrant”), pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-701 et seq. and Arizona Administrative Codes (“A.A.C.”) R4-1-101 et seq. Respondent, Richard M. Streetman did not appear. The Board appeared through its attorney, Seth T. Hargraves, Esq., Assistant Attorney General. On September 16, 2013, the Board reviewed the record in this matter including the hearing exhibits and the ALJ’s recommended Decision, dated August 7, 2013. The respondent was not present at the Board’s meeting. Mr. Hargraves, the Board’s attorney, was present and requested that the Board consider the ALJ’s Findings of Fact and the ALJ’s Conclusions of Law. Mr. Hargraves requested that the Board accept, reject or modify the ALJ’s Recommended Order. The Board voted to adopt the ALJ’s Findings of Fact and the ALJ’s Conclusions of Law and voted to accept the ALJ’s Recommended Order. Based on the ALJ’s Recommended Decision, the administrative record in this matter and the Board meeting, the Board issues the following Order: FINDINGS OF FACT 1. The Arizona State Board of Accountancy (“Board”) issued Certified Public Accountant Certificate No. 3654-E to Richard M. Streetman (“Respondent”). This certificate enables Respondent to practice as a certified public accountant (“CPA” or “registrant”) in the State of Arizona. 2. 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. 3. On or about March 27, 2013, Respondent submitted his biennial registration renewal application (“the 2013 registration renewal”) to the Board. On the 2013 registration renewal, Respondent indicated that he had not completed 78 hours of CPE. 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 2013 registration renewal. 5. In addition to the 2013 registration renewal application, Respondent also submitted a request to the Board for an extension of time until October 31, 2013, to complete the Board’s CPE requirement. 6. On May 6, 2013, the Board voted to deny Respondent’s request for an extension of time until October 31, 2013, to complete the Board’s CPE requirement and voted to file a Complaint and Notice of Hearing for Respondent’s noncompliance with the CPE requirements. 7. On May 9, 2013, Board staff sent a letter to Respondent informing him of the Board’s decision and advising him he would be receiving a Notice of Hearing for his non-compliance with the CPE requirements. 8. The Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 9. On May 15, 2013, the Board issued a Complaint and Notice of Public Hearing, setting a hearing on July 18, 2013, at 1:00 p.m. The Board mailed a copy of the Complaint and Notice of Public Hearing at his address of record with the Board. 10. A hearing was held at the OAH on July 18, 2013. The Board submitted four exhibits and presented the testimony of Deputy Director Jim Dubé to establish the facts set forth above.

11. 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. 12. The Board presented evidence that the Board took disciplinary action against Respondent in ASBA File No. 2012.020/OAH Docket No. 12F-2012.020-ACY for Respondent’s failure to comply with the CPE requirements when he filed his 2011 registration renewal application with the Board. CONCLUSIONS OF LAW 1. The Complaint and Notice of Public Hearing that the Board mailed to Respondent at his address of record was appropriate and Respondent is deemed to have received notice of the hearing. 1 2. The Board has personal and subject-matter jurisdiction over Respondent and this complaint pursuant to A.R.S. §§ 32-701 et seq. and A.A.C. R4-1-101 et seq. 3. Under A.R.S. § 32-741(A), 2 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), 3 against Respondent’s CPA certificate.

See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A). A.R.S. § 32-741(A) provides that “[a]fter notice and an opportunity for a hearing, the board may revoke or suspend any certificate granted under this chapter and may take disciplinary action concerning the holder of any certificate” for certain enumerated causes. 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. (b) Restrictions on the scope of registrants' accounting practice, including, without limitation, restriction of audit or attest function practice, restriction of tax practice or restriction of management advisory practice. (c) Peer review and professional education requirements. (d) A decree of censure. (e) Probation requirements best adapted to protect the public welfare that may include a requirement for restitution payments to accounting services clients or to other persons suffering economic loss resulting from violations of this chapter or rules adopted pursuant to this chapter. 4. The Board bears the burden of proof to establish cause to discipline Respondent’s CPA certificate by a preponderance of the evidence. 4 “A preponderance of the evidence is such proof as convinces the Trier of fact that the contention is more probably true than not.” 5 5. Respondent’s failure to complete the CPE requirements for the 2013 registration renewal violated A.R.S. § 32-730(D) 6 and provides cause for the Board to discipline his CPA certificate under A.R.S. § 32-741(A)(6). 7 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 2013 registration renewal also violated A.A.C. R4-1-453(D) 8 and provides cause for the Board to discipline his CPA certificate under A.R.S. § 32-741(A)(9). 9 7. Respondent’s failure to complete the CPE requirements for the 2013 registration renewal requires the Board to suspend Respondent’s CPA certificate under A.R.S. § 32-741(D). 10

(f) Reimbursement of the board's costs of investigations and proceedings initiated under this chapter. 4 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). Morris K. Udall, ARIZONA LAW OF EVIDENCE § 5 (1960). 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. 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.” A.A.C. R4-1-453 generally provides the Board’s requirements 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.” 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.” 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 ORDER Based on the foregoing, it is ordered that on the effective date of the Order entered in this matter that Respondent’s Certified Public Accountant Certificate No. 3654-E be suspended 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 requires for the 2013 registration renewal, whichever occurs earlier. It is further ordered that if Respondent fails to submit proof that is satisfactory to the Board that he has completed the CPE that the Board requires for the 2013 registration renewal within twelve months of the effective date of the Order entered in this matter, then the Board shall deem Respondent’s certificate to be expired pursuant to A.R.S. § 32-741(D). It is further ordered, pursuant to A.R.S. § 32-701(6)(f), that Respondent shall, pursuant to A.R.S. § 32- 701(6)(f), reimburse the Board its costs of investigation and of proceeding to hearing in this matter in the amount of nine hundred forty-six dollars and 05/100 (“$946.05) within twelve months of the effective date of the Order entered in this matter as a condition of keeping his CPA certificate in good standing. It is further recommended that Respondent’s CPA certificate shall remain suspended, subject to the expiration stated above, until Respondent has timely reimbursed to the Board its costs pursuant to A.R.S. § 32-701(6)(f). NOTICE OF APPEAL RIGHTS Respondent is hereby notified that he has the right to petition for a rehearing or review by filing a petition with the Board’s Executive Director within thirty (30) days after service of this Order. A.R.S. §41-1092.09. The petition must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-1-114(C). Service of this Order is effective on the date of personal delivery or five days after the date of mailing. If a motion for rehearing is not filed, the Board’s Order becomes effective thirty (30) days after it is mailed to Respondent.

Respondent is further notified that the filing of a motion for rehearing is required to preserve any rights of appeal to the Superior Court.

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. ///

/// DATED this 19th day of September, 2013.

ARIZONA STATE BOARD OF ACCOUNTANCY

By:___________________________________ Karen K. McCloskey, CPA, Board President Original of the foregoing filed this 19th day of September, 2013, with: Monica L. Petersen Executive Director Arizona State Board of Accountancy 100 N. 15th Avenue, Suite 165 Phoenix, AZ 85007 Copy of the foregoing filed this 19th day of September, 2013, with: Office of Administrative Hearings 1400 W. Washington, Suite 101 Phoenix, Arizona 85007 Via: https://portal.azoah.com/aljdec/documents/acy/ Copy of the foregoing mailed via regular USPS and certified mail return receipt no. [account number redacted] 8043 this 19th day of September, 2013, to:

Richard M. Streetman 3811 S. Dorsey Lane Tempe, AZ 85282

Copy of the foregoing mailed this 19th day of September, 2013, to:

Seth T. Hargraves Assistant Attorney General 1275 W. Washington, CIV-LES Phoenix, Arizona 85007 ///

By:____________________________________