ALJDEC - Licensing
25A-2025.035-ACY · State Board of Accountancy · 2024-11-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
Certified Public Accountant
Certification No. 2161
Issued to:
JOHN RICHARD FOLSE,
Respondent.
No. 25A-2025.035-ACY
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 13, 2024
APPEARANCES: Assistant Attorney General Scott Donald represented the Arizona State Board of Accountancy. Mr. Christopher Rasmussen, Assistant Director of Regulation and Compliance, appeared as a witness for the Arizona State Board of Accountancy. Respondent John Richard Folse failed to appear.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: Arizona State Board of Accountancy’s Exhibits 1 and 2
FINDINGS OF FACT
John Richard Folse (“Respondent”) is the holder of Certified Public Accountant (“CPA”) Certificate No. 2161, issued by the Arizona State Board of Accountancy (“Board”).
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 to be held on November 13, 2024, to determine whether good cause exists to revoke, suspend or take any other disciplinary action against Respondent’s certification.
On November 12, 2024, an Order Setting Hearing Via Google Meet providing the information to participate in the hearing by either video or phone was emailed to Respondent at his email address of record with the Board.
At the hearing, the Board submitted Exhibits 1 and 2, and presented the testimony of Mr. Christopher Rasmussen, Assistant Director of Regulation and Compliance. Although the start of the duly noticed hearing was briefly delayed to allow Respondent additional time to appear, Respondent did not appear, by or through an attorney, 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 his CPA Certificate. The substantive evidence of record is as follows:
On May 16, 2024, Board staff sent Respondent a mailing including a Decision & Order (by Consent) for failure to comply with continuing professional education (“CPE”) requirements. This mailing requested a response within thirty (30) days of the date of the cover letter. Board staff received no response.
On June 20, 2024, Board staff sent Respondent the mailing including the Decision & Order (by Consent) through certified mailing. This mailing requested a response within thirty (30) days of the date of the cover letter. Board staff received no response.
On July 1, 2024, Board staff received a signed return receipt indicating delivery of the certified mailing.
Board staff did not receive any timely response to the certified mailing.
The Board argued that revocation was appropriate as the evidence of record established that 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 A.R.S. §§ 32-701, et seq. and A.A.C. R4-1-101, et seq.
This matter was properly brought before OAH pursuant to A.R.S. §§ 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 at Respondent’s mailing address of record, Respondent is deemed to have received all correspondence regarding this matter from the Board, as well.
Respondent is deemed to have knowledge of the Board’s rules.
Pursuant to A.R.S. § 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.”
A.R.S. § 32-741(A)(9) provides, in pertinent part, that “[a]fter notice and an 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 “[v]iolation of any decision, order, or rule issued or adopted by the Board.”
A.R.S. § 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.”
A.A.C. R4-1-455.03(D), in pertinent part, requires that a registrant shall file a written response to a communication from the Board within thirty (30) days of the date of the mailing of such communication by certified mail.
Here, the material facts are not in dispute.
The Board established by a preponderance of the evidence that Respondent never responded to either of its correspondences issued May 16, 2024, or June 20, 2024. 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 A.R.S. § 32-741(A)(9) and A.A.C. R4-1-455.03(D), the Board has authority to revoke his registration to practice public accounting.
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. 2161 issued to John Richard Folse.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision 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 forty (40) days from the date of that certification.
Done this day, November 21, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Monica L. Petersen, Executive Director
Arizona State Board of Accountancy
[email redacted]
Scott Donald
Assistant Attorney General
[email redacted]
[email redacted]
John Richard Folse
718 Basin Drive
Inwood, WV 25428
[email redacted]
By: OAH Staff