ALJDEC decisions subject to certification as final

20A-2020.095-ACY · State Board of Accountancy · 2020-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Certified Public Accountant

Certificate No. 6283-E

Issued to: FREDERICK S. PUCCI,

Respondent.

No. 20A-2020.095-ACY

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 10, 2020

APPEARANCES: Frederick S. Pucci on his own behalf; Scott Donald, Esq. for the State 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 April 16, 2020, the Board issued a Complaint and Notice of Hearing setting this matter for hearing on June 10, 2020 at the Office of Administrative Hearings in Phoenix Arizona.

The issue for hearing is whether good cause exists for the Board to revoke, suspend, or take other disciplinary action against Frederick S. Pucci, who holds Certificate No. 6283-E issued by the Board.

Mr. Pucci appeared and testified on his own behalf; the Board presented the testimony of Assistant Director of Regulation and Compliance, Christopher Rasmussen.

The Board sent to Mr. Pucci by certified mail and regular mail a letter dated December 12, 2019.

The letter informed Mr. Pucci that he was required to provide a written response within thirty days of the date of the letter and that a failure to do so may be considered a violation of Ariz. Admin Code section R4-1-455.03(D).

Both letters were sent to Mr. Pucci at 2610 East Broadway Road in Tucson, which is his address of record with the Board and his current address.

On January 15, 2020, the Board received from the postal service the certified letter that was marked “RETURN TO SENDER – ATTEMPTED – NOT KNOWN UNABLE TO FORWARD”.

At a Board meeting on February 10, 2020, the Board voted to set the matter for a hearing to revoke Mr. Pucci’s certificate because he had not responded to the December 12, 2019 letter.

Through the Complaint, the Board alleges that Mr. Pucci’s failure to respond to the letter is a violation of Ariz. Admin. Code section R4-1-455.03(D), which provides a basis for it to revoke Mr. Pucci’s certificate under Ariz. Rev. Stat. section 32-741(A)(9).

Mr. Pucci testified to the effect that to the best of his recollection he did not receive the copy of the letter sent by regular mail.

With respect to the certified mail, Mr. Pucci received from the postal service a notice that it had a certified letter for him. He went to the post office shortly before Christmas but there was a long line and he did not wait. To his recollection, he returned to the post office on December 26 or 27, 2019, but was told that the certified letter had been returned to the sender.

The record does not show whether the certified-mail notice that the postal service left for Mr. Pucci showed that the letter was from the Board.

In order for the Board to fulfil its mission to protect the public, it is important for certificate holders to respond to inquiries from the Board.

Mr. Pucci’s belief was to the effect that had the certified mail been returned to the Board before the deadline by which his response was due, the Board would have contacted him regarding the matter. Mr. Rasmussen explained that given the number of regulated parties, the Board typically would not have done so.

At the hearing, the Board (through counsel) requested that rather than revocation, Mr. Pucci’s certificate be suspended, that he be assessed a civil penalty of $2000, and be required to repay the Board the cost of its investigation.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2) and (G)(3).

The standard of proof on all issues in this matter 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).

Ariz. Admin Code section R4-1-455.03(D) provides that: “Communications: When 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.”

The preponderance of the evidence shows that Mr. Pucci did not respond to the Board’s certified letter of December 12, 2019, which was properly served on him when it was mailed to his address of record.

The Board has authority to revoke or suspend any certificate and may take disciplinary action concerning the holder of any certificate who violates any rule adopted by the Board. Ariz. Rev. Stat. § 32-741(A)(9).

Disciplinary action includes the suspension of certificates, the imposition of an administrative penalty not to exceed $2000, and the reimbursement of the Board's costs of investigations and proceedings, including attorney fees. Ariz. Rev. Stat. § 32-701(12)(a) and (12)(g).

At the hearing, the Board requested that Mr. Pucci’s certificate be suspended, that he be assessed the maximum administrative penalty of $2000, and that he be required to reimburse the Board for its costs.

There was no evidence adduced to show that Mr. Pucci acted with a bad motive or that his failure to respond to the Board’s letter caused any actual harm to the public. Consequently, considering the facts and circumstances of this matter, it is appropriate to assess against Mr. Pucci an administrative penalty of $500 and to require him reimburse the Board for its costs.

RECOMMENDED ORDER

IT IS RECOMMENDED that an administrative penalty of $500 be assessed against Frederick S. Pucci, and that he be ordered to reimburse the Board for its costs of investigation and proceedings in this matter.

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.

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-137160-45720000Done this day, June 26, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

Arizona State Board of Accountancy

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