ALJDEC decisions subject to certification as final

18F-2019.015-ACY · State Board of Accountancy · 2019-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 27, 2019 APPEARANCES: The Arizona State Board of Accountancy (“the Board”) was represented by Scott Donald, Esq., Assistant Attorney General. Gerry Klein (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _________________________________________________________________

FINDINGS OF FACT 1. On January 17, 2019, the Board issued a Complaint and Notice of Hearing setting this matter for an evidentiary hearing at 1:00 p.m. on February 27, 2019, 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. 15361-R issued to [Respondent].” By law, any answer to the Complaint and Notice of Hearing was required to be filed within 20 days after service.

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

4. On February 6, 2019, Respondent did file a statement to the OAH, but it does not appear to be copied to the Board. The statement indicates as follows:

I am sending this Answer to the Complaint to waive a hearing on the Complaint and not contest the allegations. I declare that I was not granted an inactive status and therefore let my CPA license lapse. I did not complete the needed CPE registration and pay the annual fee. I do not wish to retain an active certificate/license for I am no longer in the accounting profession. A CPA license is not required for what I am currently doing and I cannot not (sic) afford to keep up the required CPE. Please accept my apologies in not responding sooner.

Please let me know if I need to do anything else to deactivate my license. Thanks.

5. At the time of the scheduled hearing, Respondent did not appear. The start of the duly noticed hearing was delayed to allow Respondent additional travel time to arrive; however, he 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.

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

7. On April 23, 2018, the Board received Respondent’s renewal registration form for the 2018-2010 renewal period. Respondent requested that his CPA license be placed in inactive status.

8. The Board voted to deny the request for inactive status, and subsequently notified Respondent of a 60-day period within which to complete all registration requirements (payment of the fee and submittal of requisite CPE units).

9. Although the Board did not receive the completed registration, the Board voted to offer a Consent Order for a one year license suspension on the failure to comply with registration requirements. Respondent failed to reply to the offer.

10. Thereafter, the Board determined to proceed to administrative hearing to discipline Respondent’s certification with revocation for the failure to respond to the Board.

11. 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.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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. 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 he failed to complete the registration, which was a violation of A.A.C. R4-1-453(C), in violation of A.R.S. § 32-741(A)(9). 6. A.R.S. § 32-741(A) authorizes the Board to revoke or suspend Respondent’s certificate. The Board demonstrated that Respondent’s failures to complete the registration and to respond to the Board were violations of applicable law. Therefore, the Administrative Law Judge recommends the Board revoke Respondent’s CPA certificate.

RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Board’s final order, Respondent’s Certified Public Accountant Certificate No. 15361-R be revoked. 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, March 19, 2019

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy ----------------------- [1] 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). [2] 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