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Richard - Bizlaw
Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8819
Experience:  30 years of corporate, litigation and international law
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Dear Attorney, We will not only pay you the online fee, we

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Dear Attorney,
We will not only pay you the online fee, we also are willing to pay you the proper amount you request for your time spent to read carefully the story and answer properly my 5 questions=

My store provides merchandises for State beneficiaries- On 2004 an auditor came for a routine audit and requested for purchase invoices versus sale quantity. At the time of audit, the manager was new coming, she was so stressed and could not find right away enough invoices, therefore did alter the quantity number of 4 invoices given to the auditor. After that, she found more legitimate invoices and provided to the auditor. After reviewing our record, the auditor concluded that we had no discrepancies. Nevertheless, he said that among our invoices, he found 4 incorrect invoices by compare with the invoices provided by the wholesaler.
The manager made apology. The auditor seemed to accept the explanation because we indeed had more than enough invoices to support the quantity being audited. The auditor did not make any allegation, neither any signed acknowledgement of what being said by the manager.
On the latest audit on 2009 (no discrepancy found), another inspector from State License Board brought up the 2004 incident, based on “The Incidental Referral System” report in 2005 she received from the State Department. She ordered our manager to write a report of tampering the 4 invoices 5 years ago- Denying the incident, we told our attorney that those 4 invoices were not tampered but were mistakenly delivered by the wholesale -We have not told our attorney the whole thing because we don’t want him to be influenced by ethical feelings-
Lately, the Board sent us 2 Citations with fine (total $4500): one for the store, one for the manager.
Both Citations say: “Knowingly making or signing any certificate or other document that falsely represents the existence or nonexistence;/Acts of moral turpitude, dishonesty, fraud, deceit or corruption…(based on Bus.& Prof. Codes…)”
Our attorney advised us to pay fines for the case to close, because the Citations also say “If the hearing is not requested to contest the Citation(s), timely payment of any fine(s) and submission of Proof of Abatement shall not constitute an admission of the violation(s) charged . Payment in full of the fine(s) assessed shall be represented as a satisfactory resolution of the matter in any public disclosure … (Bus & Prof code…).
But since we were worried about an unsafe legal status or more problems for our business will happen once these Citations are on public record, we asked him to request an appeal –
Processing the appeal, our attorney requested for discovery, and received from the Attorney General’s Office a full report of the Board inspector which contains a statement saying that when she (the Board inspector) contacted the auditor of 2004 audit, he told her that: “ When he confronted the manager with altered invoices, she was crying and admitted altering invoices…. that she wanted to produce more invoices to cover discrepancies”- However, the auditor also stated that “there were no shortage identified after auditing the top products even when the altered invoices were excluded”.

Base on the 2 facts that:
1) There were no signed document or any signature of acknowledgement between the auditor and the store or the manager about the incidence of the 2004 audit - Also
2) There were no discrepancies nor quantity shortage detected from this 2004 audit (stated in the report), and from all audits so far to the latest one on 2009.

My questions are:
1- Since our attorney does already know after getting the full discovered documents, do we still need to tell him that the manager innocently did alter those 4 invoices?
2- Should we stay with our story in explaining that what the auditor of 2004 told the Board inspector is just a miscommunication, misunderstanding between the auditor and the manager= the manager cried because she was under too big anxiety about the wrong invoices she picked and submitted, but she did not know exactly why these invoices were there, nobody of the store could remember exactly why that might happened-
3- Do we have a strong ground for the argument that we did not tamper any invoices because we did not have any purpose or reason to do so, based on the 2 facts above and the California Evidence Code section 400-406 about the “preliminary fact”?
4- Base on the 2 facts, that copy of the incorrect invoices enough to be used without any other “preliminary fact” as evidence to prosecute the store or the manager for making tampered invoices even without a purpose or benefit?
5- If we pay fines, or settle the case with payment, will the case safely close for us as stated in the Citations ?
Submitted: 3 years ago.
Category: Business Law
Expert:  Richard - Bizlaw replied 3 years ago.

bizlaw :

I suggest that you follow the advice of the attorney and pay the fine without a hearing. Not having a hearing means you make no admission of any liabilty. The manager is a sufficiently responsible person to make her actions those of the company. Although there was no discrepancy in the records and the actual performance, there was clearly an attempt to create false documents even if promptly admitted and corrected. The more time you spend on it the more you highlight and make the problem worse. Pay the fine and move on. If any one questions it, just say the cost of proving your innocence was more than the fine and since paying the fine is not an admission, that is what you did, a pure business decision.


If this answer is responsive to your question, please accept it. That is how we are compensated. I would also be appreciated if you provided feed back on your view of the answer. Finally, if the answer was especially helpful you can provide a bonus. If I can be of further assistance or you have other questions in the future you can ask for me and reach me at this site.


This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

Customer:

However we have requested a hearing since 2009 after receiving the citations, is that possible to step back for a settlement ? could you advise us to make up a reason to settle? e.g the manager now accepts that she stupidly did a non necessary wrongdoing, gave up her license and get fired ?

bizlaw :

I think you can always cancel the hearing and just pay. This you can discuss with your attorney as he will be the contact point. You do not want to go into the details of why you are abandoning the hearing. I would stick with the cost factor and that it is just more cost effective to settle rather than incurring the cost of defending with a chance of losing. If it costs you $3,000 to defend in attorneys fees plus lost time of employees, if you win you only win about 1,500 in savings, a bad decision in terms of cost benefit analysis.


If this answer is responsive to your question, please accept it. That is how we are compensated. I would also be appreciated if you provided feed back on your view of the answer. Finally, if the answer was especially helpful you can provide a bonus. If I can be of further assistance or you have other questions in the future you can ask for me and reach me at this site.


This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8819
Experience: 30 years of corporate, litigation and international law
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