FINACT14F-2014.073-ACY.pdf

14F-2014.073-ACY · State Board of Accountancy · 2014-12-15

BEFORE THE ARIZONA STATE BOARD OF ACCOUNTANCY In the Matter of Certified Public Accountant Certificate No. 9389-E ASBA File No. 2014.073 Issued to: OAH Docket No. 14F-2014.073-ACY ANDREW FRANCIS

DECISION AND ORDER

This matter came before Brian Brendan Tully, Administrative Law Judge (ALJ)

for the Office of Administrative Hearings on September 14, 2014, for the purpose of determining whether good cause exists for the Arizona State Board of Accountancy ("Board") to discipline Andrew Francis' ("Respondent") individual certified public accountant (CPA) certificate pursuant to Arizona Revised Statutes CAR.S.") § 32-701 et seq. and Arizona Administrative Codes (IOAAC.") R4-1-101 et seq. The Respondent did not appear and the Board appeared through its attorney, Michael D. Raine, Esq.,

Assistant Attorney General. On October 27, 2014, the Board reviewed the record in this matter including the hearing exhibits and the ALJ's recommended Decision, dated September 2, 2014. The Respondent was not present at the Board's meeting. Mr. Raine was present and requested that the Board adopt the ALJ's Findings of Fact, Conclusions of Law and Recommended Order. Christopher Munns, Esq., Assistant Attorney General with the Solicitor General's

office was present to provide independent legal advice to the Board and to limit the

parties to the record submitted only at the hearing. The Board voted to adopt the ALJ's Findings of Fact and the ALJ's Conclusions of Law, but amended the ALJ's Recommended Order to include the collection of the Board's costs in this matter. 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 regulating the practice of public accounting by Certified Public Accountants in the State

of Arizona.

2. Andrew Francis ("Respondent") is the holder of Certified Public Accounting

Certificate No. 9389-E issued by the Board. 3. On March 19, 2014, the Board voted to offer Respondent a consent order for suspension and imposition of a civil penalty arising out of Respondent's noncompliance with the Board's continuing professional education requirements. 4. On March 28, 2014, Board staff mailed the consent order to Respondent,

notifying him that a response was due within thirty days pursuant to AAC. R4-1-

455.03(F). The deadline for Respondent to respond to the consent order was April 29 ,

2014. 5. On May 2, 2014, Respondent submitted an untimely signed copy of the consent order to the Board. 6. On May 5,2014, the Board voted to accept Respondent's untimely submitted executed consent order and to order a second consent order for Respondent's untimely

response with the imposition of an additional $100.00 civil penalty for the untimely

response. 7. On May 21 , 2014, Board staff mailed the second consent order to Respondent and required a response by Respondent within thirty days pursuant to AA.C. R4-1- 455.03(F). 8. Respondent has never responded to the Board's second consent order.

9. On or about June 12, 2014, Board staff received information from a third party that on or about June 9, 2014, Respondent had pled guilty to several felonies involving theft and fraud in Maricopa County Superior Court Case No. CR2012-007294-001. 10. Respondent did not disclose his felony convictions to the Board as required by A.A.C. R4-1-456. 11. On July 25, 2014, the Board issued a Complaint and Notice of Public

Hearing in ASBA File No. 2014.073. The parties were advised that an evidentiary

hearing would be conducted on September 15, 2014, at 1 :00 p.m., before the Office of Administrative Hearings, an independent agency, in Phoenix, Arizona. 12. Respondent failed to appear at the time scheduled for the hearing and did not request to appear telephonically. After the expiration of a fifteen-minute grace period, the Administrative Law Judge convened the hearing in Respondent's absence. 13. At the hearing, the Board presented its case through the testimony of Jim

Dube, the Board's Deputy Director. 14. Deputy Director Dube testified that Respondent was selected for a random audit of his continuing professional education. On December 2, 2013, Board staff sent a notification of the random audit for Respondent to submit to the Board by January 2, 2014. On December 9, 2013, the notification mailing was returned to the Board as undeliverable because it had been sent to Respondent's employer of record, but the employer returned the mailing because Respondent was no longer employed by the

former employer. Deputy Director Dube testified that Respondent had not submitted a

change of address to the Board. 15. On or about January 16, 2014, Respondent responded to an email that had been sent by Board staff. Respondent stated that he had ongoing personal issues. Board staff informed Respondent that he had to respond to the continuing education random audit by February 21 , 2014, so that the results could be submitted at the Continuing Education Committee meeting on February 25, 2014. However, Respondent failed to timely submit the required documentation. 16. Deputy Director Dube testified to the facts surrounding the Board's first consent order and the second consent order. 17. Deputy Director Dube testified that Respondent's certificate is presently

suspended.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent pursuant to AR.S. § 32-701 et seq and A.AC. R4-1-101 et seq. 2. Pursuant to AR.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 AAC. R2-19-119(A).

3. Respondent's conduct violated the provisions of AR.S. § 32-741 (A)(9),

namely AAC. R4-1-455.03(F), and AR.S. § 32-741 (A)(15).

4. Respondent's conduct violated the provisions of AR.S. § 32-741 (A)(9), namely AAC. R4-1-456, because Respondent failed to disclose his felony convictions to the Board and Respondent failed to submit the written report as required by the Rule. 5. Respondent's conduct violated AR.S. §§ 32-741(A)(1) and 32-741 (A)(2) because Respondent has been convicted of felonies involving theft and fraud.

ORDER

Based on the foregoing, the Board REVOKES the Respondent's Certified Public

Accountant Certificate No. 9389-E. It is further ordered that the Respondent shall reimburse the Board's costs for investigating and proceeding to a hearing in this matter in the amount of $348.80, pursuant to AR.S. 32-701 (1 O)(g).

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. DATED this 29th day of October. 2014.

ARIZONA STATE BOARD OF ACCOUNTANCY

Original of the foregoing filed this 29th day of October. 2014, with: Monica L. Petersen Executive Director Arizona State Board of Accountancy th 100 N. 15 Avenue, Suite 165 Phoenix, AZ 85007 Copy of the foregoing filed this 29th day of October. 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] 7045 this 29th day of October. 2014, to: Andrew Francis 16550 N. 1oath Street Scottsdale, AZ 85255 Copy of the foregoing mailed this 29th day of October. 2014, to: Michael D. Raine Assistant Attorney General 1275 W. Washington, CIV-LES Phoenix, Arizona 85007