FINACT18F-2018.108-ACY.pdf

18F-2018.108-ACY · State Board of Accountancy · 2018-08-07

BEFORE THE ARIZONA STATE BOARD OF ACCOUNTANCY In the Matter of Certified Public OAH Docket No. 18F-2018.108-ACY Accountant No. 8267-E ASBA File No. 2018.108 Issued to: ALFONSO T. NUNEZ DECISION AND ORDER Respondent.

On June 11, 2018, this matter came before the Arizona State Board of Accountancy (“Board”) for consideration of Administrative Law Judge (“ALJ”) Velva Moses-Thompson’s proposed Findings of Fact, Conclusions of Law and Recommended Order (“ALJ’s Decision”). Neither Alfonso T. Nunez (“Respondent”) nor an attorney on

his behalf appeared. Assistant Attorney General Scott Donald appeared on behalf of the State. The Board received independent legal advice from Assistant Attorney General Seth Hargraves. The Board, having considered the ALJ’s Decision and the entire record in this

matter, hereby issues the following Findings of Fact, Conclusions of Law and Order (“Decision and Order”). FINDINGS OF FACT

The Findings of Fact as set forth in the ALJ’s Decision are adopted in their

entirety and incorporated herein. CONCLUSIONS OF LAW The Conclusions of Law as set forth in the ALJ’s Decision are adopted in their

entirety and incorporated herein. // // A true and correct copy of the ALJ’s Decision is attached and certain parts of it are incorporated here as set forth above. ORDER Based on the foregoing, the Board ORDERS that Respondent Certified Public Accountant Certificate No. 8267-E be REVOKED. IT IS FURTHER ORDERED that Respondent shall be required to reimburse the Board $15.02 within thirty (30) days of the effective date of this Decision and Order. This amount reflects the costs and attorney’s fees the Board incurred in prosecuting this matter.2 NOTICE OF APPEAL RIGHTS Respondent is hereby notified that they have the right to move for a rehearing or review by filing a motion with the Board’s Executive Director within thirty (30) days after service of this Decision and Order. A.R.S. § 41-1092.09. The motion must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-1-114(C). Service of this Decision and Order is effective on the date of personal service or five (5) days after the date of mailing. If a motion for rehearing is not filed, the Board’s Decision and 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 12th day of June, 2018. ARIZONA STATE BOARD OF ACCOUNTANCY By:___________________________________ LeRoy M. Gaintner, CPA, Board President The Board voted to modify the ALJ’s Decision to include reimbursement of fees and costs within thirty (30) to recuperate costs for enforcement. Original of the foregoing Decision and Order (and attachment) th filed this 12 day of June, 2018 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 th Decision and Order (and attachment) e-filed this 12 day of June, 2018 with: Greg Hanchett, Director Arizona Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, AZ 85007 Copy of the foregoing Decision and Order (and attachment) mailed via U.S. First Class Mail and Certified Mail #[account number redacted] 8217 this 12th day of June, 2018, to: Alfonso T. Nunez 44 Montgomery Street San Francisco, CA 94104 Copy of the foregoing Decision and Order (and attachment) emailed this 12th day of June, 2018 to: Scott Donald Assistant Attorney General 2005 N. Central Avenue Phoenix, Arizona 85004 Seth Hargraves Assistant Attorney General Independent Advisor 2005 N. Central Avenue Phoenix, Arizona 85004 By: ___________________________________ IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of No. 18F-2018.108-ACY

Certified Public Accountant ADMINISTRATIVE LAW JUDGE Certificate No. 8267-E DECISION Issued to: ALFONSO T. NUNEZ,

Respondent.

HEARING: May 15, 2018 APPEARANCES: Respondent Alfonso T. Nunez did not appear. Assistant Attorney General Scott Donald appeared on behalf of the Arizona State Board of Accountancy. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On December 15, 2017, the Arizona State Board of Accountancy (“Board) notified Respondent Alfonso T. Nunez, by certified mail, that his Certified Public Accounting (“CPA”) certificate had been randomly selected for a continuing professional education (“CPE”) audit. The December 15, 2017 notice provides, in relevant part, as follows: ……………………………………………. To facilitate the audit process, a certificate of completion must be submitted for each CPE course, as reported, and be arranged in the same order in which they are listed on the CPE Reporting Form. Please send hardcopies, rather than original certificates, as your submission will not be returned to you. Electronic submittals, and submittals on other mediums such as thumb drives, are not permitted. The requested audit evidence must be in the Board office within 30 days from the date of this letter. Failure to timely respond is a violation of Arizona Administrative Code (A.A.C.) R4-1-455.03(D) and may result in disciplinary action. In addition, A.R.S. § 32-741.02 requires that the Board suspend your certificate If you fail to show proof of CPE requirements.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 The Board's record retention rule, A.A.C. R4-1-453(F), requires you maintain the following documents for three years from the date your registration is received at the Board: (1) course outlines, and (2) certificates of completion that Include your name, course provider or sponsor, course title, credit hours and date of completion. Generally, certificates of completion provide sufficient evidence for the Committee to complete the audit, so it is the only evidence initially requested. At times, however, the Committee finds that it also needs the course outline to make an Informed decision. If this occurs during your audit, the Committee will defer its decision to a subsequent meeting and request that you submit additional materials within 30 days. ……………………………………………. 2. The Domestic Return Receipt for the mailing reflects that Mr. Nunez received the certified mailing. 3. Mr. Nunez did not provide the certificates of completion, nor respond to the Board’s request within 30 days of December 15, 2017. 4. On January 23, 2018, Mr. Nunez informed the Board that he would provide the certificates by January 26, 2018. 5. Mr. Nunez did not provide the certificates to the Board. 6. On February 12, 2018, the Board considered Respondent's non-response to the December 15, 2017 notice and voted to proceed to an administrative hearing for the revocation of Respondent's certificate for failure to respond to the Board as required. 7. On April 4, 2018, the Board issued a Complaint and Notice of Hearing alleging that Respondent violated Board rules 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 at his address of record with the Board. 8. A hearing was held on May 15, 2018. 9. The commencement of the scheduled hearing was delayed approximately minutes to allow for the late arrival of Mr. Nunez or an attorney authorized to represent Mr. Nunez. After the delay, the Administrative Law Judge conducted the hearing in his absence. 10. At hearing, the Board presented the testimony of Christopher Rasmussen, Assistant Director of Compliance Issues for the Board, and submitted exhibits A and B. CONCLUSIONS OF LAW 1. The Board has personal and subject matter jurisdiction over Respondent pursuant to ARIZ. REV. STAT section 32-701 et seq. and A.A.C. R4-1-101 et seq. 2. The Board has the authority to discipline Respondent pursuant to ARIZ. REV. STAT. section 32-742. 3. Pursuant to ARIZ. REV. STAT. section 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. A.A.C. R2-19-119(A). 4. Under ARIZ. REV. STAT. section 32-741(A)(9), the board may revoke or suspend any certificate granted under this chapter and may take disciplinary action concerning the holder of any certificate for violating a rule issued or adopted by the Board, after notice and an opportunity for a hearing. 5. A.A.C. R4-1-455.03(D) provides: Communications: When requested, a registrant shall file a written response to a communication from the Board within 30 days of the date of the mailing of such communication by certified mail. A written response is deemed filed on the date and time received in the Board office. The Board shall record the date and time either by electronic date stamp in Arizona time or on physical receipt in the Board’s office. The Board shall not accept a postmark as evidence of timely filing. 6. A.A.C. R4-1-453(G) provides: CPE audits: The Board, at its discretion, may conduct audits of CPE records that the registrant is required to maintain under subsection (F) to verify compliance with CPE requirements.

7. The Board established by a preponderance of the evidence that

Mr. Nunez failed to provide the requested CPE certificates of completion, which is a violation of ARIZ. REV. STAT. section 32-741(A)(9), as it relates to A.A.C. R4-1-455.03 (D). 8. The Board established by a preponderance of the evidence that Mr. Nunez failed to timely respond to the Board’s December 15, 2017 CPE audit letter, which is a violation of ARIZ. REV. STAT. section 32-741(A)(9), as it relates to A.A.C. R4-1- 453(G). 9. Because Mr. Nunez violated ARIZ. REV. STAT. section 32-741(A)(9), the Board has authority to revoke his registration to practice public accounting. 10. Considering the facts and circumstances of this matter, it is recommended that Mr. Nunez’s Accounting’s certificate No. 8267-E be revoked. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Board’s final order, the Board revoke Certified Public Accounting Firm Registration No. 8267-E issued to Alfonso T. Nunez. 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, May 15, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Monica L. Petersen, Executive Director Arizona State Board of Accountancy