ALJDEC decisions subject to certification as final

19F-2019.082-ACY · State Board of Accountancy · 2019-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2019, at 10:00 a.m. APPEARANCES: The Arizona State Board of Accountancy (“the Board”) was represented by Scott Donald, Esq., Assistant Attorney General; Maria I Tellez (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Board is the state agency authorized to regulate the practice of public accounting by certified public accountants in the State of Arizona. 2. The Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on its intent to revoke Respondent’s certified public accountant certificate. 3. On April 4, 2019, the Board issued a Complaint and Notice of Hearing, setting a hearing before OAH on May 15, 2015. The Board sent the Complainant and Notice of Hearing to Respondent at her address of record. 4. A hearing was held on May 15, 2015. The Board submitted three exhibits and presented the testimony of Christopher Rasmussen, its Assistant Director of Regulation and Compliance. 5. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, she did not appear, personally or through an attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend her certificate. Hearing Evidence 6. On July 10, 2017, the Board approved Respondent’s application to become an Arizona Certified Public Accountant and issued Certified Public Accountant Certificate No. 19587-E to Respondent. 7. On June 6, 2018, Board staff received a registration renewal form from Respondent for the 2018 – 2020 renewal period wherein Respondent did not report any Continuing Professional Education (“CPE”) taken. Respondent requested a CPE extension for 40 CPE hours, even though Respondent was only required to complete 30 CPE hours. Respondent explained that she had planned to complete the CPE during November and December 2017, but that her mother had been involved in a serious car crash in October 2017.[1] 8. On July 30, 2018, Board staff sent a letter to Respondent at her address of record, informing her that the Board had considered her request for a CPE extension and approved an extension for good cause for 40 CPE hours through September 28, 2018, at 5:00 p.m.[2] 9. Mr. Rasmussen testified that Respondent failed to complete 40 hours of CPE before September 28, 2018, at 5:00 p.m. after receiving the requested extension of time to do so. 10. On November 16, 2018, Board staff sent another letter to Respondent at her address of record, informing her that at the Board’s November 5, 2018 meeting, it had reviewed her file and voted to offer her a Consent Order for suspension of her certificate. The letter informed Complainant that, if she did not accept the Consent Order on or before December 17, 2018, the Board would direct its attorney to file a Complaint and Notice of Hearing at OAH.[3] 11. The Board sent the November 16, 2018 letter to Respondent by certified mail. Respondent signed for receipt of the certified letter.[4] 12. Mr. Rasmussen testified that, as of the date of the hearing, the Board had not heard from Respondent regarding her completion of the required CPE or acceptance or rejection of the Consent Order. 13. Mr. Rasmussen testified that A.A.C. R4-1-453(C) requires registrants to complete 80 hours of CPE by each biennial renewal of their registration. Registrants are also required to respond to communications from the Board sent via certified mail within 30 days if requested. 14. Mr. Rasmussen testified that Respondent’s failure to complete the required CPE or to respond to the Board’s communications indicated that she could not be regulated. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Board mailed to Respondent at her address of record was reasonable and she is deemed to have received notice of the hearing.[5] 2. The Board has jurisdiction over Respondent and the subject matter in this case.[6] 3. The Board bears the burden of proof to establish cause to discipline Respondent’s certificate by a preponderance of the evidence.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] 4. A.R.S. § 32-730(A) requires every certified public accountant to renew her registration every two years and A.R.S. § 32-730(C) requires in relevant part as follows: At the time of registration, every certified public accountant, as a prerequisite to biennial registration, shall submit to the board satisfactory proof in a manner prescribed by the board that the registrant has completed the continuing professional education requirements established by the board. The board may grant a full or partial exemption from continuing professional education requirements or an extension of time to complete the continuing professional education requirements for registrants on a demonstration of good cause.

5. A.A.C. R4-1-453(C) also provides that “[a] registrant shall complete the CPE requirements during the two-year period immediately before registration . . . .” A.A.C. R4-1-455.03(D) provides 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.” 6. A.R.S. § 32-741(A) sets forth the grounds for the Board to suspend or revoke a registrant’s certification, including the following: 6. Violation of any of the provisions of this chapter . . . . . . . .

9. Violation of any decision, order or rule issued or adopted by the board.

7. The Board established that Respondent violated A.R.S. § 32-730(C) and A.A.C. R4-1-453(C) by failing to complete the Board’s CPE requirements, even after the Board granted the extension that she requested. The Board also established that Respondent violated A.A.C. R4-1-455.03(D) by failing to respond to the Board’s November 16, 2018 certified letter. RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED that, on the effective date of the final order in this matter, Respondent Maria I. Tellez’s Certified Public Accountant Certificate No. 18576-E shall be revoked. IT IS FURTHER ORDERED that Respondent shall reimburse the Board for its costs for investigating and proceeding to hearing in this matter pursuant to 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 shall be five (5) days from the date of the certification. Done this day, May 30, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director Arizona State Board of Accountancy ----------------------- [1] See Exhibit A. [2] See Exhibit B. [3] See Exhibit C. [4] See Exhibit C at 4. [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] See A.R.S. § 32-701 et seq. and A.A.C. R4-1-101 et seq. [7] 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). [8] 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