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8-0100-17783-2 |
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STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF ACCOUNTANCY
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In the Matter of John W. Nylen |
FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled
matter came on for an evidentiary hearing before Administrative Law Judge Eric
L. Lipman commencing at 9:30 a.m. on August 1, 2007, at the
Gregory P. Huwe,
Assistant Attorney General,
NOTICE
This Report is a recommendation, not
a final decision. The Board will make the final decision after a review
of the record. The Board may adopt, reject or modify the Findings of
Fact, Conclusions, and Recommendations contained herein. Pursuant to
Minn. Stat. § 14.61, the final decision of the Board shall not be made
until this Report has been made available to the parties to the proceeding for
at least ten days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to
the Board. Parties should contact Doreen Johnson Frost, Executive
Director, Board of Accountancy,
Under Minn. Stat. § 14.62, subd. 1, the Board is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law. If the Board fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subdivision 2a. In such a case, the Board must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed. The record closes upon the filing of exceptions to the report and the presentation of argument to the Board, or upon the expiration of the deadline for doing so. The Board must notify the parties and the Administrative Law Judge of the date on which the record closes.
STATEMENT
OF ISSUES
1. Whether Respondent violated a statute or rule the Board is empowered to enforce, in violation of Minn. Stat. § 326A.08, subd. 5(1)?
2. Whether Respondent failed
to submit a report showing completion of required Continuing Professional
Education (CPE), in violation of Minn. Stat. § 326A.04, subd. 4 and
3. Whether Respondent failed to renew Respondent’s license, in violation of Minn. Stat. § 326A.04?
4. Whether Respondent
failed to respond to communications from the Board, in violation of Minn. R.
1105.1200?
5. Whether Respondent failed to appear before the Board, in violation of Minn. R. 1105.1300?
6. Whether Respondent’s
conduct constitutes grounds justifying the Board to take disciplinary action
against Respondent?
Based upon all of the files and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The Board of Accountancy issued
the Respondent, John W. Nylen, a CPA certificate on February 2,
1987.
2. The Notice of and Order for Prehearing Conference and Hearing in this matter was served upon the Respondent by first class mail on January 11, 2007, at 15 South First Street, No. 519A, Minneapolis, MN 55101, Respondent’s last known address.[1]
3. The Notice of and Order for Prehearing Conference and Hearing mailed to the Respondent included the following notice:
The Respondent’s failure to appear at the prehearing conference or the hearing may result in a finding that the Respondent is in default, that the Board’s allegations or issues contained in this Notice and Order may be accepted as true, and its proposed action may be upheld.[2]
4. The parties, including Mr. Nylen, participated in a May 22, 2007 prehearing conference. By subsequent Order of May 30, 2007, a hearing date was set for August 1, 2007.
5. On June 26, 2007, the Board served Requests for Admissions upon the Respondent, Mr. Nylen.[3] Mr. Nylen failed to make a written answer within ten days or establish a justifiable excuse for not so responding. Accordingly, the matters in the Board’s June 26, 2007 Requests for Admissions are deemed admitted,[4] and are hereby incorporated into these Findings of Fact.
6. The Respondent did not make any request for a continuance or other relief in advance of the evidentiary hearing. The Respondent did not appear at the hearing for August 1, 2007, or have an appearance made on his behalf.
7. The Notice and Order for Hearing alleges that:
(a)
Respondent failed to provide documentation of
120 hours of mandatory Continuing Professional Education (CPE) credits for the
years ended June 30, 2003, June 30, 2004, and June 30, 2005 to the Board,
in violation of Minn. Stat. §§ 326A.04, subd. 4 and
(b) On December 31, 2006, Respondent’s active CPA certificate expired.
(c) Respondent failed to renew his CPA Certificate, in violation of Minn. Stat. § 326A.04.
(d) On November 3, 2006, the Board served Respondent with a Notice of Conference with the Complaint Committee. The conference was scheduled for December 1, 2006. Respondent failed to appear at the conference on December 1, 2006. Respondent failed to appear before the Board, in violation of Minn. R. 1105.1300 and failed to respond to communications from the Board, in violation of Minn. R. 1105.1200.
6. Because the Respondent failed to appear at the evidentiary hearing in this matter, he is in default. Pursuant to Minn. R. 1400.6000, the allegations contained in the Notice of and Order for Prehearing Conference and Hearing are hereby deemed to be true.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Board and the Administrative
Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50,
214.10, and 326A.08 (2006).
2. The Board has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law or rule.
3. The
conduct described in the Notice of and Order for Prehearing Conference and
Hearing constitutes a violation of Minn. Stat. § 326A.04 (2005), and
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
Based
upon these Conclusions, the Administrative Law Judge recommends that disciplinary
action be taken against John W. Nylen, by the Minnesota Board of Accountancy.
Dated: August 24, 2007
_/s/ Eric L.
Lipman _
ERIC L. LIPMAN
Administrative Law Judge
Reported: Digitally recorded
No transcript prepared.