FINACT14F-2012.025-ACY.pdf

14F-2012.025-ACY · State Board of Accountancy · 2014-03-25

BEFORE THE ARIZONA STATE BOARD OF ACCOUNTANCY

In the Matter of Certified Public Accountant Certificate No. 1446-E ASBA File No.: 2012.025 Issued to: OAH Docket No. 14F-2012.025-ACY CARTER E. DICKEY

DECISION AND ORDER

This matter came before Brian Brendan Tully, Administrative Law Judge (ALJ) for the Office of Administrative Hearings on January 15, 2014, for the purpose of determining whether good cause exists for the Arizona State Board of Accountancy (“Board”) to discipline Carter E. Dickey (“Respondent”), a certified public accountant, pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-701 et seq. and Arizona Administrative Codes (“A.A.C.”) R4-1-101 et seq. The Respondent appeared personally and on his own behalf. The Board appeared through its attorney, Seth T. Hargraves, Esq., Assistant Attorney General. On March 19, 2014, the Board reviewed the record in this matter including the hearing exhibits and the ALJ’s recommended Decision, dated February 4, 2014. Michael Raine, Esq., the Board’s attorney, was present and requested that the Board adopt the ALJ’s Findings of Fact, the ALJ’s Conclusions of Law and the ALJ’s Recommended Order, including the reimbursement of the Board’s cost for proceeding to a hearing in this matter. The Respondent was not present at the board meeting. Christopher Munns, Esq., Assistant Attorney General with the Solicitor General’s office was present and provided independent legal advice to the Board limiting the parties to the record submitted only at the hearing. The Board voted to adopt the ALJ’s Findings of Fact, the ALJ’s Conclusions of Law and 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”) is the authority for certifying and regulating the practice of public accounting by Certified Public Accountants in the State of Arizona. 2. Carter E. Dickey (“Respondent”) is the holder of Certified Public Accountant Certificate No. 1446-E issued by the Board. This certificate enables Respondent to practice as a Certified Public Accountant in the State of Arizona. 3. On or about June 7, 2012, Respondent entered into a Decision and Order (By Consent) (“Consent Order No. 1”) with the Board. Pursuant to the terms of Consent Order No. 1, Respondent was required, within twelve (12) months of the effective date of Consent Order No. 1, to take and successfully complete sixteen (16) hours of continuing professional education (“CPE”). Respondent failed to comply with the terms of Consent Order No. 1. 4. At its July 15, 2013 meeting, the Board reviewed and considered Respondent’s noncompliance with the terms of Consent Order No. 1. Respondent was present to address his noncompliance and vowed to do whatever the Board wanted in order to keep his certificate. The Board voted to offer Respondent a new consent agreement to include suspension, sixteen (16) hours of CPE to be completed within one (1) year, and a $500.00 administrative penalty to be paid within thirty (30) days. 5. On July 18, 2013, Board staff mailed the offered consent agreement to Respondent by regular and certified mail to his address of record. The accompanying cover letter directed Respondent to respond to the offer within thirty (30) days. The certified mail was signed for as received on July 19, 2013. Respondent failed to respond to the offer. 6. On September 9, 2013, Board staff sent Respondent a letter notifying him that the Board would consider his failure to respond at its September 16, 2013 meeting. 7. At its September 16, 2013 meeting, the Board reviewed and considered Respondent’s failure to respond to the offered consent agreement. Respondent was present at the meeting and indicated that he would sign the offer right then and there if the Board would accept it. 8. The Board voted to accept Respondent’s late response only if he signed the offer prior to leaving the meeting, otherwise the Board would proceed to a hearing for revocation. Respondent signed the offered Decision and Order (By Consent) (“Consent Order No. 2”) and it became effective on September 16, 2013. 9. Pursuant to the terms of Consent Order No. 2, Respondent was required to pay a $500.00 administrative penalty to the Board within thirty (30) days of the effective date of Consent Order No. 2. 10. Respondent failed to pay the administrative penalty within thirty (30) days of the effective date of Consent Order No. 2. 11. At its November 4, 2013 meeting, the Board reviewed and considered Respondent’s failure to pay the administrative penalty required by Consent Order No. 2. As of the date of the meeting, Respondent had not submitted any payment. The Board voted the matter to hearing before the Office of Administrative Hearings, an independent agency. 12. At the hearing, the Board’s Compliance Manager, Ryan Edmonson, testified consistent with the above Findings of Facts. 13. Respondent testified that Mr. Edmonson’s testimony and the Board’s exhibits were accurate. Respondent further testified that he was willing to pay the administrative penalty but did not do so at that time. 14. The evidence of record establishes a history of non-compliance with the Board. Respondent’s testimony that he is willing to now pay the administrative penalty lacks credibility. 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), 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).

3. Respondent’s failure to comply with the terms of Consent Order No. 2 constitutes a violation of A.R.S. § 32-741(A)(9). 1 In light of Respondent’s failure to comply with Consent Order Nos. 1 and 2, the Board’s intention to revoke Respondent’s Certified Public Accountant Certificate No. 1446-E is supported by the evidence of record. 4. Pursuant to A.R.S. § 32-701(10)(g), Respondent should be assessed the Board’s costs of investigation and proceedings in this matter. ORDER Based on the foregoing, it is ordered that the Respondent’s Certified Public Accountant Certificate No. 1446-E be revoked on the effective date of the Order entered in this matter. It is further ordered that Respondent shall reimburse the Board's costs of investigation and proceeding to hearing on the effective date of the Order and after receipt of a mailed invoice, which is forthcoming. NOTICE OF APPEAL RIGHTS Respondents are hereby notified that they have 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.

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

DATED this 24th day of March, 2014. ARIZONA STATE BOARD OF ACCOUNTANCY

By:___________________________________ Karen K. McCloskey, CPA, Board President

1 A.R.S. § 32-741(A)(9) provides as follows: “Violation of any decision, order or rule issued or adopted by the board.” Original of the foregoing filed this 24th day of March, 2014, 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 24th day of March, 2014, 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] 1941 this 24th day of March, 2014, to: Carter Dickey 6820 Moonglow Drive Tucson, AZ 85718

Copy of the foregoing mailed this 24th day of March, 2014, to:

Michael Raine Assistant Attorney General 1275 W. Washington, CIV-LES Phoenix, Arizona 85007

By:____________________________________