STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE F. TAYLOR )

)

Petitioner, )

)

vs. ) CASE NO. 87-4137RX

) DEPARTMENT OF PROFESSIONAL REGULATION,) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on November 24, 1987, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Rodney W. Smith, Esquire

Post Office Box 628 Alachua, Florida 32615

For Respondent: John J. Rimes, III, Esquire

Suite LL04, The Capitol Tallahassee, Florida 32301

ISSUE

The issue is whether Rules 21H-21.002(1) and 21H-21.004(1) are an invalid exercise of delegated legislative authority.

BACKGROUND AND PROCEDURAL MATTERS

Petitioner, Ronnie F. Taylor (Taylor), presented his own testimony and that of Herbert Arthur Ingley, III, and George Edward Rabb. Respondent, Department of Professional Regulation, Board of Professional Engineers (Board), presented the testimony of Robert D. Kersten, together with Respondent's Exhibits 1, 2, 4, and 5 admitted in evidence.

The transcript was filed on December 24, 1987. By agreement of the parties, proposed findings of fact and conclusions of law were filed on January 8, 1988. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Final Order.

FINDINGS OF FACT

1. Ronnie F. Taylor, of Post Office Box 697, Cedar Key, Florida, is employed by the engineering firm of Ingley, Campbell, Moses and Associates of Gainesville, Florida, which engages in mechanical, electrical and plumbing engineering.

   
   

2. Taylor has been with this engineering firm for four years and is currently a vice president in charge of production of electrical engineering documents. Prior to this employment, Taylor spent 14 years as an electrical engineer with the engineering firm of Reynolds, Smith and Hill of Jacksonville, Florida. When Taylor left Reynolds, Smith and Hill, he was the senior design engineer.

   
   

3. Taylor served in the military as an electrician. Upon completing military service in 1967, Taylor entered Florida Junior College. He received an Associate of Science degree in Electrical Engineering Technology in 1970 from that institution.

   
   

4. Following that degree, Taylor began employment with Reynolds, Smith and Hill, where his responsibilities included the design of electrical projects for commercial buildings, including writing specifications, making cost estimates and producing a finished product.

   
   

5. Taylor has spent his entire career in electrical engineering and has no experience with other specialties of engineering. He has extensive experience in electrical engineering having designed and completed numerous large commercial projects. However, because Taylor is not a licensed professional engineer, a licensed professional engineer must oversee all projects during the course of design and completion and must sign and seal all completed work.

   
   

6. Taylor is not a licensed professional engineer because he has failed to pass the Fundamentals of Engineering (FE) portion of the engineering examination. He has failed in fourteen attempts to pass the FE exam. Taylor did pass the Principles and Practices (P & P) portion of the exam in 1982. Licensure requirements specify that both sections must be passed prior to licensure.

   
   

7. Taylor became qualified to take the engineering exam in 1977 pursuant to Section 471.21(1)(c), Florida Statutes (1977), which permitted an applicant to take the exam with "a specific record of 10 years or more of active practice in engineering work of a character indicating that the applicant is competent to be placed in responsible charge of such work." This so-called 10 year cycle permitted an applicant to qualify for the exam without the otherwise required 4- year college degree and 4 additional years of experience.

   
   

8. In 1979, Section 471.013, Florida Statutes, was enacted, allowing persons in the final year of engineering school to take the FE exam to qualify as an engineer intern. This provision has been in effect since 1979.

   
   

9. The FE exam, as required by Rule 21H-21.002(1), which is challenged here, includes questions on the subjects of mathematics, mathematical modeling of engineering systems, nucleonics and wave phenomena, chemistry, statistics, dynamics, mechanics of materials, fluid mechanics, thermodynamics/heat transfer, computer programming, electrical circuits, statics, structure of matter, engineering mechanics, electronics and electrical machinery.

10. While Taylor scored highly on the subjects relating to electrical engineering, he had difficulty with other areas of the exam. The course work completed by Taylor in 1970 did not include some of these areas with which Taylor had difficulty. Taylor has had no course work in computer programming, thermodynamics, statistics, nucleonics and wave phenomena.

    
    

11. The subjects tested in the FE exam are updated in order to test applicants on the most current information and knowledge of engineering fundamentals.

    
    

12. Herbert A. Ingley is a licensed professional engineer and holds a Bachelors degree in Chemical Engineering, a Masters degree in Mechanical Engineering, and a Ph.D. in Mechanical Engineering with a minor in Environmental-Mathematics. He taught full time on the faculty of the University of Florida in Mechanical Engineering for 11 years. In his opinion, it is more difficult for applicants to pass the FE exam the further they are from their formal education and, therefore, applicants in the 10 year cycle have more difficulty passing the exam. According to Ingley, the requirement that persons such as Taylor wait 10 years before taking the FE exam is not logical. However, Ingley also opined that it is important for a professional engineer to have a fundamental knowledge of engineering and that there is a need to test the fundamental basics of engineering for each person who is going to become a licensed professional engineer.

    
    

13. George Edward Rabb is a licensed professional engineer, having been licensed in 1965. He was grandfathered and therefore only had to pass the P & P exam. The FE exam was waived based on specific portions of statute and rule which waived the FE exam for persons with fifteen years experience. The waiver was only available to persons qualifying prior to November, 1970.

    
    

14. According to Rabb, an engineer needs to have a working knowledge of fundamentals and to understand the general concepts of engineering.

    
    

15. Robert D. Kersten, who has been the Dean of the Department of Engineering at the University of Florida for 20 years, has a Bachelors degree in Mathematics and Chemistry, a Masters degree in Civil Engineering, and a Ph.D. in Civil Engineering, Water Resource/Hydrologic Engineering. Dean Kersten has served in numerous capacities with both state and national professional associations involved in accreditation of engineers and served on the Board of Professional Engineers in Florida and on the National Council of Engineering Examiners.

    
    

16. The FE exam is prepared by the National Council of Engineering Examiners and is designed to cover the fundamental areas essential to the basic practice of engineering. The FE exam tests both the common body of knowledge that is essential to practice in the profession and the ability to apply that knowledge.

    
    

17. According to Dean Kersten the FE exam tests items which should be within an engineer's basic knowledge and which are necessary to communication between engineers in a design team approach to project design.

    
    

18. Dean Kersten acknowledges that the FE exam is more difficult for applicants who lack a degree or who have been out of the academic area for a period of time, but opines that those factors do not excuse an applicant from mastering and retaining the basic fundamentals important to the practice. In

    fact, the FE exam is designed so that 70 percent of the applicants with-the 4- year college educational background pass the exam. Only 40 percent of the applicants in the 10 year cycle pass the exam.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings. Section 120.56, Florida Statutes.

    
    

20. As an otherwise qualified applicant for licensure as a professional engineer who has failed to pass the Fundamentals of Engineering (FE) examination, which is a prerequisite to licensure, Petitioner Taylor is a substantially affected party with standing to bring this action. This action is for a determination of the validity or invalidity of Rules 21H- 21.002(1) and 21H-21.004(1), Florida Administrative Code.

    
    

21. While Petitioner initiated this action by Petition challenging these Rules and while Petitioner apparently agreed, both in the Prehearing compliance and at the beginning of the formal hearing, that the issue was as stated, nowhere in his argument or proposed order does he mention those Rules. Instead, Petitioner now seeks a determination that a rule that requires an individual to wait ten years before being eligible to take Part 1 of the State Engineering Examination" is not logical or is "an arbitrary and capricious determination which tends to defeat the very purpose the legislature sought to effectuate

    ...."

    
    

22. However, the Rules challenged, even by implication, do net even relate to the 10 year cycle. Instead, the so-called 10 year cycle is a product of statute. Rule 21H-21.001, Florida Administrative Code (April, 1987), provides:

    
    

    The Florida Board of Engineers hereby determines that a written examination shall be given and passed prior to any applicant receiving a license to practice as a professional engineer, or as an engineer intern....The examination shall be

    provided by the National Council of Engineering Examiners (NCEE). The examination consists of two parts, each of eight hours...

    
    

    Rule 21H-21.002(1), Florida Administrative Code (April, 1987), provides:

    
    

    1. The Engineering Fundamentals Examination shall include all questions and problems on subjects normally connected with the basic fundamentals of engineering education. The topics which will usually be treated in this section are as follows: mathematics, mathematical modeling of engineering systems, nucleonics and wave phenomena, chemistry, statistics, dynamics, mechanics of materials, fluid mechanics, thermodynamics/heat transfer, computer programming, electrical

       circuits, statics, structure of matter, engineering mechanics, electronics and electrical machinery.

       
       

       Rule 21H-21.004(1), Florida Administrative Code (April, 1987), provides:

       
       

       (1) The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEE to set the raw score that represents the minimum amount of knowledge necessary to pass the Fundamentals of Engineering Examination....The raw

       score necessary to show competence shall be deemed to be a 70 on a scale of 100.

       
       

       Section 455.217, Florida Statutes (1985), authorizes rulemaking as follows:

       
       

       (1) The Division of Examination and Licensure of the Department of Professional Regulation shall provide services for the preparation

       and administration of all examinations.

       * * *

       1. To the extent not otherwise specified by statute, the board, or when there is no board, the department, shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade....

       2. The department shall use any national examination which is available which is approved by the board....

       
       

       Further, Section 471.008, created by Chapter 87-349, Section 1, Laws of Florida, (effective July 11, 1987), provides:

       
       

       Rules of the board.--The board may adopt such rules not inconsistent with law as may be necessary to carry out the duties and authority conferred upon the board by this chapter.

       
       

       Finally, Section 471.015(1), Florida Statutes (1985), provides that the "department shall license any applicant who the board certifies as qualified to practice engineering and who has passed the licensing examination."

       
       

23. It is undisputed that the standard to be applied in determining the validity of a rule is the standard set forth in Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). That standard requires the party challenging the validity of an agency rule to show that the agency adopting the rule has exceeded its authority, that the requirements of the rule are not appropriate to the ends specified in the legislative act, and that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary

    or capricious. See also Dent. of Administration, Division of Retirement v. Albanese, 445 So.2d 639 (Fla. 1st DCA 1984).

    
    

24. Further, this standard was expanded and codified in Section 120.52(8), Florida Statutes (1987). See Chapter 87-385, Section 2, Laws of Florida. As amended, Section 120.52(8) states:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54 (7);

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

25. In applying these standards, a simple reading of Section 455.217(1)(b) and (c) and Section 471.008 makes it abundantly clear that the Board of Professional Engineers has statutory authority to enact rules which set forth the requirements of the engineering examination, its content, subject matter and grading criteria. Rules 21H-21.002 and 21H-21.004 do exactly that, no more and no less. Further, Section 455.217 and Section 471.015(1) authorize the use of a national exam and require the department to issue licenses only to those qualified applicants who pass that exam. Clearly, the first prong of the Agrico standard and the requirements of Section 120.52(8)(b),(c), and (d) are not met. The rules challenged do not exceed or modify the clear statutory authority. In fact, they simply implement the statutory mandate.

    
    

26. While the Agrico standard requires a challenger to meet all three prongs of the test, here Petitioner meets none of them. The second prong cannot be met where the rules merely restate the statutory requirements and adopt an alternative allowed by statute. Further, the testimony was clear that an understanding of the fundamentals of engineering is necessary to the appropriate and competent practice of engineering and that a test is an appropriate way of insuring that all applicants have this necessary understanding of and ability to apply these fundamental principles. Hence, Petitioner has not shown that these examination requirements, as set forth in the challenged rules, are arbitrary or capricious as required by Agrico and Section 120.52(8)(e). Petitioner made no argument that Section 120.52(8)(a) was at issue in these proceedings.

    
    

27. Petitioner also argues that it is unfair (or arbitrary or capricious) to administer the FE exam to persons in the 10 year cycle because it is more difficult for 10 year cycle applicants to pass. The 10 year cycle was created

    by Section 471.21, Florida Statutes (1977), to allow persons with 10 years of experience, but no 4-year college degree, to qualify to take the examination. By 1981, in Section 471.013(2), the legislature closed the window for 10 year cycle applicants to the extent that only those persons who were in the 10 year cycle and who had notified the Board by July 1, 1984, that they were in the 10 year cycle before July 1, 1981, could qualify to take the examination.

    Additionally, Petitioner points to the grandfathering available to applicants like Rabb who did not have to take and pass the FE exam, only the P & P exam. However, this waiver was created by the legislature to apply only to a very specific and limited number of long-time engineering professionals and was the only exception to the statutory mandate that all applicants pass the engineering examination prior to licensure. There is no evidence that the legislature intended to waive the FE exam for 10 year cycle applicants. Instead, the statutory language is very clear that passing the engineering examination designated by the Board is a prerequisite to licensure and that the various statutes regarding 4-year degree holders, engineer interns, and 10 year cycle applicants simply define the earliest time in their education and training when they are eligible to sit for the engineering examination. While it has been argued that this statutory scheme gives preference to graduates of engineering schools over 10 year cycle applicants in that 10 year cycle applicants have greater difficulty passing the exam, it is not within the purview of this proceeding to determine the logic or rationale of the legislature in creating these categories. While the statutory scheme may make it easier for 4-year engineering graduates to pass the FE exam, it does not change the statutory mandate that all applicants pass both sections of the engineering examination prior to licensure.

    
    

28. Based upon the foregoing Findings of Fact and Conclusions of Law, it is determined that Rules 21H-21.002(1) and 21H-21.004(1), Florida Administrative Code, are not an invalid exercise of delegated legislative authority and it is therefore

ORDERED that the Petition to Determine Validity of a Rule filed by Ronnie

1. Taylor be dismissed.

   
   

   DONE AND ORDERED this 29th day of January, 1988, in Tallahassee, Florida.

   
   

   DIANE K. KIESLING

   Hearing Officer

   Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1988.

   
   

   APPENDIX TO FINAL ORDER, CASE NO. 87-4137RX

   
   

   The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

   Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Ronnie F. Taylor

   
   

   1. Each of the following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1); 4, 5 & 7(2); 8 & 9(3); 10(4); 11 & 13(5); 14-16(6); 17(7); 18(8); 19 & 20(10); 20(11); 22(5); 27-29(12); 30(13); and 34 & 36(18).

   2. Proposed findings of fact 21, 23, 25, 26, 31 and 32 are irrelevant.

   3. Proposed findings of fact 6 and 12 are unnecessary.

   4. Proposed finding of fact 24 is speculative, argumentative and irrelevant.

   5. Proposed findings of fact 33 and 35 are unsupported by the competent, substantial evidence.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of

Professional Regulation, Board of Professional Engineers

1. Each of the following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7) and 2(6).

2. Proposed findings of fact 3, 5, 7 and 8 are rejected as being argumentative and a conclusion of law.

3. Proposed findings of fact 4 and 6 are subordinate to the acts actually found in this Final Order

COPIES FURNISHED:

Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 326215

Douglas Beason, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John J. Rimes, Esquire Assistant Attorney General Suite L104, The Capitol Tallahassee, Florida 32399-1050

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Allen R. Smith, Jr., Executive Director

Department of Professional Regulation

Board of Professional Engineers

130 North Monroe Street Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED, TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-004137RX

Orders for Case No: 87-004137RX