ALJDEC decisions subject to certification as final

18F-2018.134-ACY · State Board of Accountancy · 2018-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 10, 2018. APPEARANCES: The Arizona State Board of Accountancy (“the Board”) was represented by Scott Donald, Esq., Assistant Attorney General. Melissa B. Peterson (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _________________________________________________________________

FINDINGS OF FACT 1. On September 7, 2018, the Board issued a Complaint and Notice of Hearing setting this matter for an evidentiary hearing at 1:00 p.m. on October 10, 2018, before the Office of Administrative Hearings (“OAH”), an independent state agency.

2. The Complaint and Notice of Hearing provided that the issue to be decided was “whether good cause exists to revoke, suspend or take any other disciplinary action against [Certified Public Accountant (“CPA”)] Certificate No. 14862-E issued to [Respondent].”

3. The Board sent the Complaint and Notice of Hearing via United States certified mail to Respondent at his address of record with the Board.

4. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed to allow Respondent additional travel time to arrive, Respondent did not appear and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to be considered.

5. The Board presented the testimony of Christopher Rasmussen, Assistant Director of Regulation and Compliance, and submitted two exhibits. Mr. Rasmussen was familiar with this matter because he had reviewed the file in this matter.

6. Respondent is the holder of CPA Certificate No. 14862-E issued by the Board.[1]

7. On March 1, 2018, the Board received Respondent’s renewal application for the 2018-2010 renewal period; the application noted only 69.5 continuing professional education credit (CPE) hours had been completed.[2]

8. In its Complaint and Notice of Hearing, the Board indicated that Respondent requested that she obtain an extension until March 27, 2018 for 10.5 more CPE hours, for the good cause of “other condition/circumstance that the Board deems relevant.”[3] The Board indicated therein that Respondent “originally assumed that CPE in excess of 80 hours from the last reporting period would have carried forward to the next reporting period.”

9. On March 26, 2018, the Board voted to deny an extension request for failure to show “good cause” and to offered a Decision and Order (By Consent) (“Consent Order”) for a one-year suspension due to noncompliance with CPE requirements.

10. On April 2, 2018, the Board sent Respondent, by regular and certified mail, a letter offering the consent Order and indicating the offer would expire on May 2, 2018.[4]

11. The Board’s records demonstrate that the offer letter had been received and signed for at Respondent’s address of record on April 5, 2018.[5]

12. At hearing, the Board indicated that it did not receive a response from Respondent. At hearing, the Board requested that Respondent’s certification be revoked and that the Tribunal award costs and fees regarding this disciplinary matter.

CONCLUSIONS OF LAW 1. The Board has personal and subject-matter jurisdiction over Respondent pursuant to A.R.S. § 32-701 et seq. and A.A.C. R4-1-101 et seq. The Board has the authority to discipline Respondent pursuant to A.R.S. § 32-741. Specifically, under A.R.S. § 32-741(A)(9), the Board may discipline a registrant for a violation of any decision, order, or rule promulgated by the Board. 2. The Board bears the burden of proof to establish cause to discipline Respondent by a preponderance of the evidence.[6] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] 3. A.A.C. R4-1-455.03(D) provides that a registrant shall file a written response to a communication from the Board within 30 days of the date of the mailing of that communication. 4. A.R.S. § 32-730(C) provides that the accountant shall submit to the Board, at the time of registration, proof that they have completed the CPE requirements. This section further provides that the Board may grant a full or partial exemption from CPE or “an extension of time to complete the [CPE] requirements for registrants on a demonstration of good cause.” 5. A.A.C. R4-1-453(C) provides that a registrant, whose last registration period was two years, must complete 80 hours of CPE. 6. The Board established that Respondent failed to file a timely written response as required by A.A.C. R4-1-455.03 (D) and that Respondent was not in compliance with CPE requirements, as she reported only 69.5 CPE hours, which was a violation of A.A.C. R4-1-453(C)(1), in violation of A.R.S. § 32-741(A)(9). 7. While A.R.S. § 32-741(A) authorizes the Board to revoke or suspend Respondent’s certificate, A.R.S. § 32-741.02(A) provides that the Board shall suspend the certificate of a registrant who fails to provide proof of compliance with the Board’s CPE requirements. 8. As the Tribunal was unable to determine the length of time that Respondent has held the certificate and unable to determine whether good cause existed for an extension request, the Administrative Law Judge recommends, pursuant to A.R.S. § 32-741.02(A) and (C), the Board suspend Respondent’s certificate until she complies with the CPS requirements by a date certain and, if she does not do so, to revoke the certificate. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Board’s final order, Certified Public Accountant Certificate No. 14862-E previously issued to Respondent Melissa B. Peterson, be suspended until she has complied with the CPE requirements, and that the Board provide a specific time period within which Respondent must comply and, in the event that she does not comply, to revoke the certificate. 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, October 30, 2018

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy ----------------------- [1] The Tribunal is unaware of the length of time that Respondent has held this certificate. [2] The Board did not present a copy of Respondent’s renewal application to the hearing record. [3] As there was no citation to any rule, the Tribunal presumes that this is a quotation from Respondent’s application/letter. [4] Exhibit A. Attached to this letter is a copy of the Consent Order prepared by the Board. [5] Exhibit B. [6] 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). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826