ALJDEC - Licensing

23A-2022.154-ACY · State Board of Accountancy · 2023-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Certified Public Accountant

Certificate No. 19378

Issued to: DANIEL JOHN FLEMING

Respondent.

No. 23A-2022.154-ACY

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 25, 2023

APPEARANCES: Assistant Attorney General Scott Donald represented the Arizona State Board of Accountancy; Christopher Rasmussen, Assistant Director of Regulation and Compliance, appeared as a witness. Daniel John Fleming appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

FINDINGS OF FACT

The Arizona State Board of Accountancy (“Board”) is the authority for regulating Certified Public Accountants in the State of Arizona. A person with a certification from the Board is authorized to hold themselves out to the public as being a Certified Public Accountant.

Daniel John Fleming holds CPA Certificate No. 19378 as issued by the Board.

On August 25, 2022, the Board issued a Complaint and Notice of Hearing (“Complaint”) setting this matter for hearing on October 12, 2022, before the Office of Administrative Hearings in Phoenix Arizona. The hearing was continued and subsequently reset for January 25, 2023.

The Complaint gave notice to Mr. Fleming that the issue for hearing was whether good cause exists for the Board to revoke, suspend, or take other disciplinary action against Daniel John Fleming’s Certificate No. 19378.

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

On May 9, 2022, the Board sent to Mr. Fleming by certified mail, an offer of a Decision & Order by Consent (“Consent Order”). The Consent Order was accompanied by a cover letter that requested Mr. Fleming respond to the offer within 30 days. The cover letter advised Mr. Fleming of the following in pertinent part:

A written response accepting or rejecting this offer is required and you are hereby requested to respond within thirty (30) days from the date of this letter. Please be advised that your failure to timely respond and/or submit a written response may be considered a violation of A.A.C. R4-1-455.03(D), and/or grounds for disciplinary action against a certificate and/or registration pursuant to A.R.S. § 32-741(A)(9).

The cover letter and Consent Order were sent to Mr. Fleming at his then-address of record, which was 3031 E. Avalon Drive, Phoenix, Arizona. The Board never received back the signed return receipt for the certified mailing. However, the Board did receive the mailing back at the Board’s office on June 10, 2022.

Mr. Fleming was required to respond to the Board’s Consent Order within 30 days of May 9, 2022. Mr. Meyers did not file a response to the mailing within 30 days.

On June 10, 2022, the Board sent an e-mail to Mr. Fleming regarding the certified mailing that had been sent to his then-address of record, which mailing had been returned to the Board. This e-mail notified Mr. Fleming that he needed to submit a change of address and that he could do so using the Board’s change of address form which form he could attach to his response to the Board’s e-mail.

After consideration by the Board, the Board forwarded the matter for an administrative hearing to consider revocation of licensure.

Through the Complaint, the Board alleges that Mr. Fleming’s failure to respond to the Board’s communication is a violation of Ariz. Admin. Code R4-1-455.03(D), which provides a basis for the Board to revoke Mr. Fleming’s CPS certificate pursuant to Ariz. Rev. Stat. § 32-741(A)(9) (“Violation of Board rules”).

At the time of the administrative hearing, the Board’s counsel indicated that the Board was no longer seeking revocation of CPA certification but was asking for (a) an administrative penalty in the amount of $2,000.00, plus costs, and (b) an Order that Mr. Fleming be required to respond to the May 9, 2022 Board communication.

Mr. Fleming indicated at hearing that he no longer lives at the address the Board utilized but further indicated that, once a week, he collects the mail there. Mr. Fleming noted that certified mail is delivered during the day and that, during the day, he would have been at his work.

Mr. Fleming indicated that he made a phone call to the Board in an effort to change his address after receiving the Board’s June 10, 2022 e-mail but that he never got a phone call in response. Mr. Fleming argued that he did not receive the May 9, 2022 letter and, therefore, should not be considered to have not responded. Finally, Mr. Fleming requested that the Tribunal consider a lower penalty amount, asking for a penalty of $200.00 instead of $2,000.00.

In order for the Board to fulfill its mission to protect the public, it is imperative for certificate holders to respond to any and all communications from the Board.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion.

The standard of proof on all issues in this matter is that of the preponderance of the evidence.

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.

Ariz. Admin Code 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. Fleming did not respond to the Board’s certified letter of May 9, 2022, which was appropriately mailed to Mr. Fleming’s then-address of record with the Board.

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.

Disciplinary action includes the suspension of certificates, the imposition of an administrative penalty not to exceed $2,000.00 per violation, and the reimbursement of the Board's costs of investigations and proceedings, including attorney fees.

At the hearing, the Board requested that Mr. Fleming be assessed the maximum administrative penalty of $2,000.00, and be required to reimburse the Board for its costs of investigation and proceedings, as well as be required to respond to Board’s May 9, 2022 Consent Order.

Considering the facts and circumstances of this matter, it is appropriate for the Board to consider assessing a lower administrative penalty in the amount of $1,000.00 against Mr. Fleming but to also require him to reimburse the Board for its investigative and proceedings costs.

RECOMMENDED ORDER

IT IS RECOMMENDED that an administrative penalty of $1,000.00 be assessed against Daniel John Fleming, that he be ordered to reimburse the Board for its costs of investigation and proceedings in this matter, and that he be ordered to file a response to the May 9, 2022 Consent Order with the Board no later than 30 days after the date of the final Board Decision.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge's written decision by so advising the Office of Administrative Hearings in writing not more than ten days after receiving the decision. If the licensee accepts the Administrative Law Judge's written decision, that Administrative Law Judge Decision shall be certified as the final decision in this matter by the Office of Administrative Hearings.

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 (5) days after the date of that certification.

-54864001

001

-137160-45720000Recommended this day, February 14, 2023.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

Arizona State Board of Accountancy

100 N. 15 Ave., Ste 165

Phoenix, AZ 85007

[email redacted]

Scott Donald

Assistant Attorney General

Licensing & Enforcement Section

[email redacted]

Daniel John Fleming

[email redacted]

By: OAH Staff