ALJDEC decisions subject to certification as final

19F-2019.069-ACY · State Board of Accountancy · 2019-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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. 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. 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 ----------------------- [1] 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. [2] 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. [3] See A.R.S. § 32-701 et seq. [4] 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] See A.A.C. R2-19-119(B)(2). [6] 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.” [8] 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.”

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