ALJDEC decisions subject to certification as final

20A-2020.163-ACY · State Board of Accountancy · 2020-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Certified Public Accountant

Certificate No. 19200-E

Issued to: KEVIN NORMAN DOBRICK,

Respondent.

No. 20A-2020.163-ACY

ADMINISTRATIVE LAW JUDGE DECISION

TELEPHONIC HEARING: August 27, 2020

APPEARANCES: Respondent Kevin N. Dobrick appeared, representing himself. 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

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 in the State of Arizona.

Kevin Norman Dobrick (Respondent) is the holder of Certified Public Accounting (CPA) Certificate No. 19200-E. Based on statutory continuing professional education (CPE) requirements, Respondent was required to complete a total of fifty (50) CPE credit hours in the two year period prior to his registration renewal.

Following the receipt of Respondent’s January 6, 2020 registration renewal form, which documented only forty-six (46) continuing professional education (CPE) credits, the Board determined to offer Respondent a Consent Order in this matter.

By letter dated February 12, 2020, the Board notified Respondent of the offer and specified that Respondent had until March 13, 2020 to accept the Consent Order, after which the offer would expire. The letter indicated that, if Respondent wanted to accept the offer, he should sign the Consent Oder and return it within the 30 days. The letter further specified that a failure to timely respond might be considered to be a violation of Board rule A.A.C.R4-1-455.03(D) and might constitute grounds for disciplinary action pursuant to A.R.S. § 32-741(A)(9). See Exhibit 1.

The Board’s offer was mailed to Respondent at his address of record, the firm address of his employer, Grant Thornton LLP, where it was received on February 13, 2020 (presumably by an employee designated to sign for the mail). See Exhibit 2.

When the Board did not receive a timely response, the Board referred the matter for disciplinary action.

On June 8, 2020, Respondent filed with the Board a revised CPE summary.

On July 8, 2020, the Board issued a Complaint and Notice of Hearing to Respondent at his address of record.

At hearing, Respondent explained that he had, at or about that time, moved to Los Angeles, still employed by Grant Thornton, but had been sent to Alaska for an assignment beginning on January 19, 2020 until he returned from that lengthy assignment to Los Angeles on February 21, 2020. He indicated by that time, the Phoenix office location was closed or moved and the COVID issues affected access to any Grant Thornton office.

Respondent acknowledged that he did receive the February 12, 2020 mailing but had, apparently, misunderstood the various time frames involved, believing that he had 6 months to comply with the CPE requirements. Upon preparation for the hearing, Respondent essentially indicated that he now well-understood that the intent was for him to respond within 30 days of that letter.

At hearing, the Board’s representative argued that Respondent’s failure to respond within 30 days to the Consent offer was a rule violation and, thus, was cause for discipline, suspension, or revocation of Respondent’s CPA certificate. At hearing, the Board’s representative acknowledged that, due to Respondent’s participation in the administrative hearing process, a discipline less than revocation should be recommended. The Board’s representative requested consideration of a suspension terminable upon the Board’s acceptance of Respondent’s revised CPE credits (which must be in compliance with the CPE requirements) and a penalty in the amount of $2,000.00 along with the associated administrative costs of the process.

At hearing, Respondent readily acknowledged the importance of regulation by the Board and admitted he had mistakenly not responded correctly and not initially completed the CPE correctly. Respondent requested that the Tribunal and Board give consideration to his then-recent move, the out-of-state assignment, and his required work load at that time for the firm as being related to the delay in a correct response.

CONCLUSIONS OF LAW

The Board was created and authorized to regulate and control the profession of Certified Public Accountancy in Arizona. This matter lies within its jurisdiction, the applicable laws found at A.R.S. § 32-701 et seq. and A.A.C. R4-1-101 et seq. The Board’s authority to discipline Respondent is found at A.R.S. §§ 32-741(A) and 32-701(10). Because the Board has been given statutory discretion in regard to suspension, revocation, or taking other disciplinary action, Respondent’s circumstances should be considered in the administrative process. Each case presented stands on its own as to the evidentiary facts and circumstances.

The Board bears the burden of proof to establish cause to discipline Respondent‘s CPA Certificate by a preponderance of the evidence. Respondents bear the burden to establish affirmative defenses or factors in mitigation of any penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Pursuant to A.A.C. R4-1-102(A), Respondent is deemed to have knowledge of the Board’s administrative rules.

A.A.C. R4-1-455.03(D) mandates that a registrant respond in writing within 30 days to certified mail communications from the Board. A failure to so respond may be determined to be a violation of A.R.S. § 32-741(A)(9), a violation of a Board rule. Such a violation is cause for disciplinary action under A.R.S. § 32-741(A).

A suspension of a CPA certification results in, during the period of suspension, a registrant being prohibited from using the “CPA” designation, the title of “Certified Public Accountant” or any abbreviation or derivation of the term.

In this case, the Administrative Law Judge concludes that discipline is warranted tempered by the specific circumstances in this case. The Administrative Law Judge recommends a short suspension period in the absence of Board acceptance of Respondent’s revised compliant-CPE credits and a civil penalty in the amount of $500.00. This penalty amount is calculated based on what would be a registration fee, a possible late registration fee and, simply, a lesser monetary penalty amount.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, the Board suspend Respondent’s CPA certification for a period of one week and impose a civil penalty in the amount of $500.00. It is further recommended that the Board require Respondent to reimburse the Board’s costs of this matter and proceeding to hearing, under A.R.S. § 32-701(12)(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 16, 2020.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

Arizona State Board of Accountancy