FINACT19F-2019.069-ACY.pdf

19F-2019.069-ACY · State Board of Accountancy · 2019-09-24

BEFORE THE ARIZONA STATE BOARD OF ACCOUNTANCY In the Matter of OAH Docket No. 19F-2019.069-ACY

Certified Public Accountant ASBA File Nos. 2019.069 and 2019.070

Certificate No. 7309-E DECISION AND ORDER Issued to: LARRY D. PLOUGHE, Respondent; and Certified Public Accounting Firm Registration No. 918-C Issued to: LARRY D. PLOUGHE, CPA, P.C., Respondent Firm. On September 23, 2019, this matter came before the Arizona State Board of Accountancy (“Board”) for consideration of Administrative Law Judge (“ALJ”) Kay A. Abramsohn’s proposed Findings of Fact, Conclusions of Law and Recommended Order (“ALJ’s Decision”). 1 Neither Larry D. Ploughe (“Respondent”), a representative of Larry D. Ploughe, CPA, P.C. (“Respondent Firm”) nor an attorney on their behalf appeared. Assistant Attorney General Scott Donald appeared on behalf of the State. The Board received independent legal advice from Assistant Attorney General Michael Raine. The Board, having considered the ALJ’s Decision and the entire record in this matter, hereby issues the following Findings of Fact, Conclusions of Law and Order (“Decision and Order”). FINDINGS OF FACT The Findings of Fact as set forth in the ALJ’s Decision are adopted in their entirety and incorporated herein. A true and correct copy of the ALJ’s Decision is attached and certain parts of it are incorporated here as set forth above. CONCLUSIONS OF LAW The Conclusions of Law as set forth in the ALJ’s Decision are adopted in their entirety and incorporated herein. ORDER Based on the foregoing, the Board ORDERS that Respondent Certified Public Accountant Certificate No. 7309-E and Respondent Firm Certified Public Accounting Firm Registration No. 918-C be REVOKED. IT IS FURTHER ORDERED that Respondent and Respondent Firm shall be required to reimburse the Board $109.22 within thirty (30) days of the effective date of this Decision and Order. This amount reflects the costs and attorney’s fees the Board incurred in prosecuting this matter. NOTICE OF APPEAL RIGHTS Respondent and Respondent Firm are hereby notified that they have the right to move for a rehearing or review by filing a motion with the Board’s Executive Director within thirty (30) days after service of this Decision and Order. A.R.S. § 41-1092.09. The motion must set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-1- 114(C). Service of this Decision and Order is effective on the date of personal service or five (5) days after the date of mailing. If a motion for rehearing is not filed, the Board’s Decision and Order becomes effective thirty (30) days after it is mailed to Respondent and Respondent Firm. Respondent and Respondent Firm are further notified that the filing of a motion

for rehearing is required to preserve any rights of appeal to the Superior Court. DATED this 24th day of September, 2019. ARIZONA STATE BOARD OF ACCOUNTANCY By: ___________________________________ William C. Heimerdinger, CPA, Board President Original of the foregoing Decision and Order (and attachment) filed this 24 day of September, 2019 with: th

Monica L. Petersen Executive Director Arizona State Board of Accountancy 100 N. 15 Avenue, Suite 165 th

Phoenix, AZ 85007 Copy of the foregoing Decision and Order (and attachment) e-filed this 24 day of September, 2019 with: th

Greg Hanchett, Director Arizona Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, AZ 85007 Copy of the foregoing Decision and Order (and attachment) mailed via U.S. First Class Mail and Certified Mail #[account number redacted] 0332 this 24th day of September, 2019, to: Larry D. Ploughe Larry D. Ploughe, CPA, P.C. 2210 S. Sierra Park Trail Show Low, AZ 85901 Copy of the foregoing Decision and Order (and attachment) emailed this 24th day of September, 2019 to: Scott Donald Assistant Attorney General [email redacted] Michael Raine Assistant Attorney General Independent Advisor [email redacted] By: ___________________________________ IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of No. 19F-2019.069-ACY Certified Public Accountant ADMINISTRATIVE LAW JUDGE Certificate No. 7309-E DECISION Issued to: LARRY D. PLOUGHE, Respondent; and Certified Public Accounting Firm Registration No. 918-C Issued to: LARRY D. PLOUGHE, CPA, P.C. Respondent Firm.

HEARING: August 14, 2019 APPEARANCES: Respondent Larry D. Ploughe did not appear.1 The Arizona Board of Accountancy (Board) was represented by Assistant Attorney General Scott Donald; witness Chris Rasmussen. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Accountancy (Board) is the State agency authorized pursuant to A.R.S. §§ 32-701 et seq., to regulate the profession of Certified Public Accountant professionals (CPA) in the State of Arizona. 2. The Board issued Certified Public Accountant Certificate No. 7309-E to Respondent Larry D. Ploughe. 3. The Board issued Accounting Firm Registration No. 918-C to Respondent Larry D. Ploughe, CPA, P.C. 4. On October 22, 2018, Board received a complaint from a member of the public alleging that Respondent and Respondent Firm had failed to file a tax return. 5. By letter dated October 25, 2018, the Board noticed Respondent regarding the complaint and requested that Respondents respond within 30 days to the allegations for the investigation. The letter was sent to Respondents by certified and regular mail to the address of record. See Exhibit A. A previous hearing setting was continued as Respondent called in and was not certain that he would be able to participate due to auditory issues; despite being noticed at the address of record regarding the new hearing date, Respondent failed to appear. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 6. Although the certified letter was received at the known address of Respondent on October 27, 2018, the Board did not receive a response to the letter. Id.

7. On December 10, 2018, the Tax Advisory Committee considered

Respondents’ non-response and voted to proceed to an administrative hearing for

revocation of Respondent’s certificate and Respondent Firm’s registration for failure to

respond to the Board as required by law.

8. On April 4, 2019, the Board issued a Complaint and Notice of Hearing to

Respondent at the address of record. See Exhibit B.2

9. The Board has never received a response from Respondents to the public

complaint or to the Board’s request for a response.

CONCLUSIONS OF LAW

1. The Board was created and authorized to regulate and control the

profession of Certified Public Accountancy in Arizona.3 This matter lies within its jurisdiction, the applicable laws found at A.R.S. § 32-701 et seq. 2. The Board bears the burden of proof to establish cause to discipline Respondent‘s CPS Certificate and Respondent Firm’s Registration by a preponderance of the evidence.4 Respondents bear the burden to establish affirmative defenses or factors in mitigation of any penalty by the same evidentiary standard.5 3. The copy of the Complaint and Notice of Hearing that the Board mailed to Respondents at the address of record was reasonable and Respondents are deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 4. The Board’s letter dated October 25, 2018 was mailed to Respondents by certified and regular mail to the address of record, and although the certified letter was received at the known address on October 27, 2018, the Board did not receive a response to the letter from either Respondent.

Although the certified mail receipt was not returned to the Board, Respondent was aware of the hearing demonstrated by the fact that he called the Tribunal to request the continuance. See A.R.S. § 32-701 et seq. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). 5. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”6 6. Respondents did not appear at the administrative hearing and therefore

presented no evidence to dispute the fact that they did not respond to the Board.

Therefore, under A.R.S. § 32-741(A)(9)7 and A.A.C. R4-1-455.03(D)8 the Board is

authorized to discipline Respondent‘s CPA Certificate and Respondent Firm’s

Registration.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final

Order in this matter, the Board revoke Respondent‘s CPA Certificate and Respondent

Firm’s Registration. It is further recommended that the Board require Respondent to

reimburse the Board’s costs of investigating and proceeding to hearing in this matter

under A.R.S. § 32-701(10)(g).

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, September 4, 2019 /s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to: Monica L. Petersen, Executive Director Arizona State Board of Accountancy

5 See A.A.C. R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 7 A.R.S. § 32-741(A)(9) provides that after notice and an opportunity for hearing, the Board may suspend, revoke, or otherwise discipline the holder of any certificate for “[k]nowing violation of any decision, order or rule issued or adopted by the board.” A.A.C. R4-1-455.03(D) requires that “[w]hen 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.” A.R.S. § 32-741(A)(15) provides that after notice and an opportunity for hearing, the Board may suspend, revoke, or otherwise discipline the holder of any certificate for “[f]ailing to respond or furnish information in a timely manner to the board or its designated agent, if the information is legally requested by the board and is in the registrant’s possession or control.”