ALJDEC decisions subject to certification as final
18F-2018.108-ACY · State Board of Accountancy · 2018-06-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of
Certified Public Accountant
Certificate No. 8267-E
Issued to: ALFONSO T. NUNEZ,
Respondent.
No. 18F-2018.108-ACY
ADMINISTRATIVE LAW JUDGE DECISION
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:
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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.
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.
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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 20 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
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.
The Board has the authority to discipline Respondent pursuant to Ariz. Rev. Stat. section 32-742.
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