ALJDEC decisions subject to certification as final

23A-2023.242-ACY · State Board of Accountancy · 2023-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Certified Public Accountant

Certificate No. 13004

Issued to: CHARLES D. CUCCINELLO,

Respondent.

No. 23A-2023.242-ACY

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2023 at 9:00 AM.

APPEARANCES: Assistant Attorney General Scott Donald, Esq. appeared on behalf of the Arizona State Board of Accountancy (“Board”) with Christopher Rasmussen as a witness. No appearance(s) by or on behalf of Charles D. Cuccinello (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

Respondent is the holder of Certified Public Accountant (“CPA”) Certificate No. 13004, issued by the Board.

Administrative Notice is taken of Respondent’s prior registration record as reflected on the Board’s public website. Such prior record reflects that Respondent’s CPA Registration was issued on March 08, 2004. There is no disciplinary action on file for Respondent.

Per the Complaint and Notice of Hearing (“Notice of Hearing”), the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 20, 2023, to determine whether good cause exists to revoke, suspend or take any other disciplinary action against Respondent’s certification.

Hearing Evidence

At the hearing, the Board submitted Exhibits 1-3 and presented the testimony of Mr. Rasmussen, Assistant Director of Regulation and Compliance. Although the start of the duly noticed hearing was briefly delayed allow Respondent additional time to appear, Respondent did not appear, by or through an attorney or owner, and did not contact OAH to request that the start of the hearing be further delayed. No request to continue was submitted on Respondent’s behalf. Consequently, Respondent did not present any evidence to defend its CPA Certificate. The substantive evidence of record is as follows:

On or about May 03, 2022, Respondent submitted a request to extend the period to complete his continuing professional education (”CPE”) requirements related to his CPA Certificate. Respondent avowed to the Board that he was unable to timely comply due to “financial difficulties,” as he could not afford to sign up for CPE courses. Respondent additionally offered that he had hoped to retire, but was unable to do so because financial hardships necessitated his continued employment.

On June 06, 2022, the Board voted 4 -1 to grant Respondent’s request and afford him sixty (60) additional days to complete his CPE requirements, noting that Respondent had established good cause for the extension.

On January 04, 2023, after Respondent’s 60-day CPE extension had lapsed, the Board mailed a suspension order, i.e. Decision & Order by Consent (“Order”), for Respondent’s CPA Certificate via regular mail. Correspondence was not returned as undeliverable by the United States Postal Service (“USPS”). A response was due by February 03, 2023. Respondent did not reply.

On February 24, 2023, the Board mailed another Order to Respondent via certified mail. The correspondence was signed for by Respondent as received on February 27, 2023. Although a response was due by March 27, 2023, Respondent did not reply.

Additional Evidence

On June 02, 2023, the Notice of Hearing was issued for this matter. Correspondence was not returned as undeliverable by USPS.

On June 30, 2023, a Minute Entry providing remote participation hearing for the matter was provided to the parties. Correspondence issued to Respondent was not returned as undeliverable by his email domain or USPS.

Respondent did not request an informal Settlement Conference in this matter.

Closing Arguments

Ultimately, the Board argued that revocation was appropriate as evidence established Respondent refused to be regulated by the Board.

CONCLUSIONS OF LAW

The Board is authorized to regulate the practice of public accounting in the State of Arizona, and as such, maintains personal and subject matter jurisdiction over Respondent pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-701, et seq. and Arizona Administrative Code (“Ariz. Admin. Code”) R4-1-101, et seq.

This matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Notice of Hearing the Board mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received the Notice of Hearing in this matter. Because the Board mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Board as well.

Pursuant to Ariz. Rev. Stat. §§ 32-701 et seq., the Board is the authority for regulating the practice of Certified Public Accountants in the State of Arizona. Pursuant to Ariz. Rev. Stat. §§ 32-701 et seq., and Ariz. Admin. Code R4-1-101 et seq., the Board has personal and subject matter jurisdiction over Respondent.

Respondent is deemed to have knowledge of the Board’s rules.

Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2), the Board has the burden of proof in this matter. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard. The standard of proof is a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is also, “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Ariz. Rev. Stat. § 32-741(A)(9) provides, in pertinent part, that “[a]fter notice and opportunity for a hearing, the board may revoke or suspend any certificate” and may also “take disciplinary action concerning the holder of any certificate” for violation of any decision, order, or rule issued by the Board.

Ariz. Rev. Stat. § 32-743(C) provides that “[i]f, after having been served with the notice of hearing, the person fails to appear at the hearing and defend, the board may proceed to hear evidence against the person and may enter such order as shall be justified by the evidence.”

Ariz. Admin. Code R4-1-455.03(D), in pertinent part, requires that a registrant shall file a written response to a communication from the Board within 30 days of the date of said mailing.

Here, no material facts are in dispute.

The Board established by a preponderance of the evidence that Respondent never responded to either of its correspondence issued January 04, 2023, or February 24, 2023. Moreover, the Board also established that Respondent unequivocally received the latter correspondence well in advance of the required response date.

Respondent’s knowing, intentional, and volitional refusal to submit to the Board’s regulation and maintain communication establishes that he is unwilling to be regulated at this time.

Because Respondent violated Ariz. Rev. Stat. §§ 32-41(A)(9); Ariz. Admin. Code R4-1-455.03(D) the Board has established good cause to revoke Respondent’s CPA Certificate.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that on the effective date of the Board’s Final Order, the Board revoke Certified Public Accountant Certificate No. 13004 as issued to Charles D. Cuccinello.

NOTICE

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, July 21, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Monica L. Petersen, Executive Director

c/o Christopher Rasmussen, Assistant Director of Regulation & Compliance

Arizona State Board of Accountancy

100 N. 15th Ave., Ste. 165

Phoenix, AZ 85007

[email redacted]

Scott Donald, Esq. Assistant Attorney General

Office of the Attorney General

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Charles D. Cuccinello

CL and Company, CPA's PC

7110 E. McDonald Dr., Ste. B-2

Scottsdale, AZ 85260

[email redacted]

By: OAH Staff