ALJDEC decisions subject to certification as final

19A-2020.062-ACY · State Board of Accountancy · 2019-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of Application for Certification as a Certified Public Accountant

By:

E. CHRIS VOTROUBEK,

Applicant.

No. 19A-2020.062-ACY

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 20, 2019

APPEARANCES: E. Chris Votroubek on his own behalf; Scott Donald Esq. for the 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 October 15, 2019, the Board issued a Notice of Hearing setting this matter for hearing on November 20, 2019 at the Office of Administrative Hearings.

The issue for hearing is E. Chris Votroubek’s appeal of the Board’s Order of Denial of his application for Certified Public Accountant certification.

Mr. Votroubek appeared and testified on his own behalf; the Board presented the testimony of Vicki Rios, a CPA who is Chairperson of the Board’s Certification Advisory Committee.

Consistent with the Board’s normal practice, Mr. Votroubek’s application was evaluated the Board’s Certification Advisory Committee to determine whether he met the statutory requirements for certification, with the Committee then making a recommendation regarding his application to the Board. The Board then independently considered Mr. Votroubek’s application to determine whether he met the requirements for certification.

In Mr. Votroubek’s case, Ms. Rios and another reviewer considered his application. The first reviewer initially found that Mr. Votroubek met the educational requirements, whereas Ms. Rios found that he did not. After discussion, the first reviewer agreed with Ms. Rios, and the Committee voted to recommend to the Board that it deny Mr. Votroubek’s application.

Mr. Votroubek’s application and the Committee’s recommendation were forwarded to the Board. The Board determined that Mr. Votroubek’s application did not meet the statutory requirements and issued its Order of Denial.

The Board denied Mr. Votroubek’s application because it determined that he did not meet the educational requirements of Ariz. Rev. Stat. section 32-721(B)(2).

As pertinent to this matter, subsection 32-721(B)(2) requires an applicant to show that he has a obtained baccalaureate degree, has completed at least one hundred fifty semester hours of education of which at least thirty-six semester hours are nonduplicative accounting courses, and of which at least thirty semester hours are upper-level courses.

In Mr. Votroubek’s case, the Board found that he had completed only thirty hours of nonduplicative classes, of which only twenty-four were upper-level courses.

At issue are four classes that Mr. Votroubek took at Arizona State University: ACC 315, ACC 316, ACC 350, and ACC 360. The Board determined that ACC 315 is duplicative of ACC 340, and that ACC 316 is duplicative of ACC 350.

In 1993 Mr. Votroubek earned a degree in finance from Arizona State University and in 2012 he earned a degree in accounting, also from Arizona State.

Mr. Votroubek took ACC 315 in Spring 1992, ACC 316 in Fall 1992, and ACC 340 and ACC 350 in Fall 2012.

Mr. Votroubek testified to the effect that because of the changes that had occurred in accounting between 1992 and 2012, Arizona State required him to take ACC 340 and ACC 350 even though he had taken ACC 315 and ACC 316. He argued that these changes were sufficient to show that the classes were not duplicative.

Ms. Rios is a CPA who has been a member of the Committee for about seventeen years. Ms. Rios has also taught accounting at Arizona State and Glendale Community College.

Ms. Rios testified that in conducting application reviews, the Committee members review the material available and apply their professional judgment to determine whether the coursework meets the statutory requirements.

In Mr. Votroubek’s case, the Committee had the syllabuses from ACC 340 and ACC 350, the Course Catalog descriptions of ACC 315 and ACC 316 for the years in which Mr. Votroubek took those classes, and their experience as Committee members.

Ms. Rios testified that at the time she joined the Committee, two of its members were professors at Arizona State. When she joined the Committee she was trained that the Committee considered ACC 315 to be duplicative of ACC 340 and ACC 316 to be duplicative of ACC 350. During her years on the Committee this understanding has not changed.

Ms. Rios compared the ACC 315 and ACC 316 course catalog descriptions to the syllabuses for ACC 340 and ACC 350 and confirmed that ACC 315 and ACC 340 were duplicative and that ACC 316 and ACC 350 were duplicative.

Ms. Rios testified that ACC 315 and ACC 340 both cover intermediate financial accounting, and that ACC 316 and ACC 350 both cover intermediate cost accounting.

Ms. Rios explained that it is important for CPAs to have taken a variety of courses, because CPAs will face a variety of issues in practice. The Committee considers the content of the applicant’s coursework when making its recommendations to the Board, applying professional judgment to determine whether any two classes are sufficiently alike to be considered duplicative.

Mr. Votroubek presented evidence showing that he has participated in a substantial amount of continuing education through his job with the Auditor General’s Office.

Mr. Votroubek presented evidence showing that Ariz. Rev. Stat. section 32-721 had been modified in in 2013, at which time the word “nonduplicative” was added. Mr. Votroubek had reviewed the legislative history and found that there were no references explaining why that word was added to the statute.

Mr. Votroubek testified that the word “nonduplicative” is not defined in statute or rule and he presented evidence to the effect that “duplicate” means an identical copy.

The Board argues that “nonduplicative” need not be defined because its meaning is clear, and to the effect that before the word was added to the statute, an applicant would not meet the requirement for certification if he had repeatedly taken the same class to accumulate thirty-six hours of credit.

CONCLUSIONS OF LAW

Mr. Votroubek bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1).

The standard of proof on all issues 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).

“Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, 354 P.3d 1127 (2015 App.)(citing In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704 (1999).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Words contained in statutes are to be given their ordinary meaning unless the context in which they are used suggests another meaning.” Sunpower of Arizona v. Registrar of Contractors, 166 Ariz. 437, 440, 803 P.2d 430, 443 (App. 1990)(citation omitted).

A fair and sensible reading of Ariz. Rev. Stat. section 32-721(B)(2) requires a finding that the word “nonduplicative” is not being used in a literal sense. To conclude otherwise would mean that applicants could qualify for certification by repeatedly retaking a class in which only trivial changes had been made, which would defeat the intention that CPAs be educated in a variety of topics. The Board’s practice of allowing its Committee members to apply professional judgment to determine whether two classes are duplicative is sound.

Mr. Votroubek has not met his burden to show that he has completed thirty-six semester hours of nonduplicative accounting courses of which at least thirty semester hours are upper-level courses. See Ariz. Rev. Stat. § 32-721(B)(2).

Ms. Rios presented credible testimony that the Committee has a long-standing policy of treating ACC 315 and ACC 316 as duplicative of ACC 340 and ACC 350. She also provided credible testimony showing that the Committee had evaluated the information it had about each of the classes at issue and it verified that these classes covered essentially the same subject matter.

Mr. Votroubek did not present substantial evidence showing that ACC 315 was materially different from ACC 340 or that ACC 316 was materially different from ACC 350. Although Mr. Votroubek testified as to the changes in the accounting profession between 1992 and 2012 and that Arizona State required him to take ACC 340 and ACC 350 even though he had previously taken the other two classes, he did not provide substantial evidence showing that these changes affected the content of the four classes at issue.

Although Mr. Votroubek presented evidence showing that he has taken classes in addition to his university coursework, these classes do not meet the requirements of Ariz. Rev. Stat. section 32-721(B)(2).

Consequently, Mr. Votroubek’s appeal should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that E. Chris Votroubek’s appeal is dismissed and that the Board’s Order of Denial is affirmed.

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, December 3, 2019.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

Arizona State Board of Accountancy