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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…)” A friend of us 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 business credential status will happen once these Citations are on public record, we requested an appeal 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- 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- 2- 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”? 3- Base on the 2 facts, is 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? 4- If we pay fines, or settle the case with payment, will the case safely close for us and do not affect our business credential status? 5- If so, is that possible to cancel the hearing and just pay fine ?
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Answered in 13 minutes by:
8/4/2011
MShore Law
MShore Law, Attorney
Category: Business Law
Satisfied Customers: 25,285
Experience: Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
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Thank you for the post, I am happy to assist you by answering your questions. To answer your questions:

1. Yes, you should stick with the original story because it is very plausible and there is no evidence to refute it.

2. Yes, you do have strong argument that no one engaged in tampering. This is because tampering is defined as with intent to weaken or alter negatively, the structure or composition of an invoice. This, from your description, did not occur.

3. As you probably know a "preliminary fact" means a fact upon
the existence or nonexistence of which depends the admissibility or
inadmissibility of evidence. The phrase "the admissibility or
inadmissibility of evidence" includes the qualification or
disqualification of a person to be a witness and the existence or
nonexistence of a privilege.

4. Yes, if you pay the fines or settle with payment it would not affect your credential status.

5. Yes it is possible to cancel and just pay the fine. After all, this is purely a civil matter (i.e. the objective is monetary recovery).

Please let me know if you have any follow up questions.
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Customer reply replied 6 years ago

Please explain:

2&3: Can the altered invoices and/ or the statement of the auditor are enough preliminary facts to conclude the evidence of tampering even tampering without purpose or benefit ?

 

4-How could we explain the citations posted in our annual credential verification with third parties if being requested ?

Thanks

Evidence of tampering is inconsistent invoices, one accurate, the other reflecting an intent to mislead or deceive. From your description, there was no tampering, but an omission that resulted in the initial incorrect invoice.

The citations posted could be explained via asterisk confirming that payment of the citation was tendered with no express or implied admission of wrongdoing.
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Customer reply replied 6 years ago

However, inspector has onhand copy of both invoices, 1 original she received from the seller replying to her request, and 1 id the ones altered by the stupidity of the manager, is that enough voe an evidence to prosecute ?

The manager is willing to bear all responsability about her stupidity, Can the store is still be affected ? How the store can get rid of bad record ?

Thanks a lot

Customer reply replied 6 years ago

Please answer my last question, I will pay you the amount you prefer

Thanks

Thank you for the clarification, yes, that is enough evidence to prosecute. The store is necessarily liable for the actions of the manager, the manager cannot bear all responsibility for her actions as her actions were in the furtherance of her employment. The store cannot completely get rid of the bad record, it can however mitigate the damages by publishing an explanation.
MShore Law
MShore Law, Attorney
Category: Business Law
Satisfied Customers: 25,285
Experience: Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
Verified
MShore Law and 87 other Business Law Specialists are ready to help you
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Customer reply replied 6 years ago

I would like to get a bit more confidence, so, let's review again:

 

There are 2 State departments involved, one who did the audit 0n 2004 (the Department A) and another one (The Licensing Board B) who worked beside the latest audit in 2009-

The Department (A) processed the incidence from 2004 but did not kill us, just put a notice on their system for more follow up audits, which the last one in 2009 came up with no discrepancies found again, but the Department (A) was forward the final report with the whole history from 2004 to the Board (B) as a complaint-

The Board Inspector did her own investigation with in favor of us, but asking us a report about the incidence on 2004 even she has everything on hand (that you say enough for prosecute)-

 

My question are:

1-Why they did not kill us on 2004?

2-Even the 2009 Citations (from the Board B) says "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...)...". Is that possible the citation payments can be that the Department (A) is waiting for to push forward a kill (suspend the provider contrac because of bad credential records) ? If so, based on reference authorities (Bus & Prof Code....) can we then request an appeal ?

Thank you again

Customer reply replied 6 years ago

Please answer me few more questions above- I will pay separately-

Thank you

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MShore Law
MShore Law
MShore Law, Attorney
Category: Business Law
Satisfied Customers: 25,285
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Experience: Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements

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