ALJDEC decisions subject to certification as final

18F-2018.152-ACY · State Board of Accountancy · 2018-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Certified Public Accountant

Certificate No. 13051-R

Issued to:

MARK J. KOHLER,

Respondent.

No. 18F-2018.152-ACY

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 12, 2018

APPEARANCES: No one appeared for Respondent; Scott Donald, Esq. for the State Board of Accountancy

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

The Arizona State Board of Accountancy (“Board”) is the authority for regulating Certified Public Accountants in the State of Arizona.

On April 27, 2018, the Board issued a Complaint and Notice of Hearing setting this matter for hearing at 9:00 a.m. June 12, 2018 at the Office of Administrative Hearings in Phoenix Arizona.

The issue for hearing is whether good cause exists for the Board to revoke, suspend, or take other disciplinary action against Certificate No. 13051-R issued by the Board to Mark J. Kohler (“Respondent”).

No one appeared for Respondent at the scheduled hearing time and the matter was convened in his absence at about 9:15 a.m.

The Board’s attorney informed the tribunal that on May 2, 2018, he had received an email from Respondent’s assistant requesting that the matter be vacated for good cause. No such request was filed with the tribunal and the Board’s attorney was unaware of what good cause might exist to vacate the matter.

On January 10, 2018, the Board sent to Respondent’s address of record by certified mail and regular mail a compliance affidavit related to the Decision and Order issued in File No. 2018.026. Through the compliance affidavit the Board requested Respondent to provide information related to his compliance with the requirements of that Decision and Order.

The letter accompanying the compliance affidavit shows that Respondent’s failure to complete and return the affidavit and related material within thirty days could result in discipline against his certificate.

The return receipt for the certified letter with the compliance affidavit shows that it was signed for by “Wilkes” on January 16, 2018.

Respondent did not respond to the letter within thirty days of its mailing.

After the Complaint and Notice of Hearing was issued, Respondent did provide the Board with the required information.

At the hearing, the Board requested that Respondent’s certificate be revoked and that Respondent be assessed the cost of the Board’s investigation in this matter.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2) and (G)(3).

The standard of proof on all issues in this matter is that of the preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Respondent failed to respond in a timely manner to the Board’s January 10, 2018 letter and compliance affidavit, which is a violation of Ariz. Admin. Code section R4-1-455.03(D), and a basis on which the Board may impose discipline against Respondent’s certificate. See Ariz. Rev. Stat. § 32-741(A)(9).

Considering the facts and circumstances of this matter, particularly Respondent’s failure to appear at the hearing, Certificate No. 13051-R issued to Respondent Mark J. Kohler should be revoked and Respondent should be ordered to reimburse the Board for the costs it incurred during the investigation and proceedings in this matter. See Ariz. Rev. Stat. § 32-701(10)(g).

RECOMMENDED ORDER

IT IS ORDERED that Certificate No. 13051-R issued to Mark J. Kohler is revoked;

IT IS FURTHER ORDERED that Mark J. Kohler must reimburse the Board for the costs it incurred during the investigation and proceedings in this matter.

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 after the date of that certification.

Done this day, June 22, 2018

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

Arizona State Board of Accountancy