STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS MARTINEZ MALLEN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5973

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 9, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Carlos Martinez Mallen, pro se

33C Venetian Way #66

Miami Beach, Florida 33139

For Respondent: John J. Rimes, III, Esquire

Office of Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether Petitioner's application for licensure as a professional engineer should be approved?

PRELIMINARY STATEMENT

Petitioner filed an application for licensure by endorsement as a professional engineer in the State of Florida, and Respondent denied that application for licensure both by endorsement and by examination. Petitioner timely requested a formal hearing on that denial, and this cause was transmitted by Respondent to the Division of Administrative Hearings for formal proceedings.

At the final hearing, Petitioner was unable to communicate in English sufficiently to present his position, and, therefore, with the agreement of the parties Petitioner's daughter was permitted to act as an interpreter in order that Petitioner could fully present his evidence. Petitioner testified on his own behalf. The Respondent presented the testimony of Robert D. Kersten.

Additionally, Petitioner's Exhibits numbered 1 and 2, Respondent's Exhibits numbered 1 and 2, and Joint Exhibit numbered 1 were admitted in evidence.

Further, Respondent's motion for official recognition of Sections 471.013 and 471.015, Florida Statutes, and Rules 21H-18.015 and 21H-20.006, Florida Administrative Code, was granted.

Both parties submitted post hearing proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement.

   
   

2. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes.

   
   

3. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method.

   
   

4. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET").

   
   

5. The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain.

   
   

6. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board.

7. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties.

   
   

8. Petitioner is not a graduate of the State University System.

   
   

9. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver.

   
   

10. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

12. Section 471.013 and 471.015, Florida Statutes, provide, in pertinent part, as follows:

    
    

    [471.013](1)(a) A person shall be entitled to take an examination for the purpose of determining whether he is qualified to practice in this state as an engineer if the person is of good moral character and:

    
    

    1. Is a graduate from an approved engineering curriculum of 4 years or more in a school, college, or university which has been approved by the board and has a record of 4 years of active engineering experience of a character indicating competence to be in responsible charge of engineering;

       
       

    2. Is a graduate of an approved engineering technology curriculum of 4 years or more in a school, college or university within the State University System, having been enrolled or having graduated prior to July 1, 1979, and has a record of 4 years of active engineering experience of a character indicating competence to be in responsible charge of engineering; or

       
       

    3. Has, in lieu of such education and experience requirements, 10 years or more of active engineering work of a character indicating that the applicant is competent to be placed in responsible charge of

       engineering. However, this subparagraph does not apply unless such person notifies the department before July 1, 1984, that he was engaged in such work on July 1, 1981.

       
       

       The board shall adopt rules providing for the review and approval of schools or colleges and the courses of study in engineering in such schools and colleges. The rules shall be based on the educational requirements for engineering as defined in

       s. 471.005. The board may adopt rules providing for the acceptance of the approval and accreditation of schools and courses of study by a nationally accepted accreditation organization.

       * * * [471.015] (3) The board shall certify as qualified for a license by endorsement an applicant who:

       
       

       1. Qualifies to take the examination as set forth in s. 471.013, has passed a national, regional, state, or territorial licensing examination which is substantially

          equivalent to the examination required by s. 471.013, and has satisfied the experience requirements set forth in s. 471.013; or

          
          

       2. Holds a valid license to practice engineering issued by another state or territory of the United States, if the criteria for issuance of such license were substantially identical to the licensure criteria which existed in this state at the time the license was issued.

       * * * (5)(a) The board shall deem that an

       applicant who seeks 1icensure by endorsement has passed an examination substantially equivalent to part I of the engineering examination when such applicant:

       1. Has held a valid professional engineer's registration in another state for 15 years, and

          
          

       2. Has had 20 years of continuous professional-level engineering experience.

       (b) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I and part II of the engineering examination when such applicant:

       1. Has held a valid professional engineer's registration in another state for 25 years, and

       2. Has had 30 years of continuous professional-level engineering experience.

       
       

13. Rule 21H-20.006, Florida Administrative Code, sets forth the educational requirements for applicants for licensure as follows:

    
    

    1. The evaluation of curricula and standards of accreditation for approval of degree programs required by section 471.013, F.S., shall be based upon:

       
       

       1. An overview of engineering programs within the United States accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc., (ABET), and,

       2. An evaluation of such programs and schools, following the definition of the practice of engineering set forth in section 471.005(6), F.S.

    2. This rule shall not apply to Board approved engineering programs or where ABET accreditation is available to a school or college of engineering.

    3. Acceptable curricula requirements and degree programs shall conform to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc., (ABET) and found in the 1986 Annual Report of ABET.

    4. The evaluation of the applicant's transcript and degree program shall include a determination of whether such a transcript and degree program is comparable to the above-mentioned model by the Education Advisory Committee as defined in rule 21H- 18.015.

    5. In order to verify the applicant's curriculum and engineering program the Board may require evidence from the applicant's institution(s) at the cost of the applicant as to the areas mentioned in 21H-20.006(2) including, when the information necessary for the evaluation set forth in (3) above is not available, a site visit by Educational Advisory Committee of the Board at the expense of the applicant.

    
    

14. It is uncontroverted that Petitioner has never been licensed as an engineer by another state or territory of the United States and he has never taken an examination for licensure in this country. Further, a comparison of Petitioner's educational curriculum with the requirements of ABET, incorporated by reference in Rule 21H-20.006, shows conclusively that Petitioner's degree from Spain does not conform to the standards for an engineering degree in the United States, and, therefore, he does not quality to sit for the licensing

    examination in this state. Likewise, Petitioner has not passed an examination equivalent to the examination which must be passed to become a professional engineer in this state. Thus, the provisions for licensure by endorsement set forth in Section 471.015(3)(a) or (b) have not been met by Petitioner nor has he met the requirements necessary to take the examination as set forth in Section 471.013(1)(a), Florida Statutes.

    
    

15. Petitioner contends that he meets the requirements for licensure under the "waiver" provisions of Section 471.015(5)(a) and (b), Florida Statutes. As set forth above, those statutes require that in order to be licensed by endorsement with a waiver of all examination and education requirements, an applicant must have been licensed for a minimum number of years in another state and must have a minimum number of years of professional-level engineering experience. There is no question that Petitioner has never been licensed in any state of the United States. The Board has consistently construed the term "another state" as set forth in Section 471.015, Florida Statutes, to be a state of the United States. Petitioner has cited no logical or legal basis for his position that Spain is a state or is another state (or is a territory) of the United States.

    
    

16. Petitioner contends that he applied for licensure by endorsement but that the Board misunderstood his application and has wrongfully evaluated it as an application for licensure by examination. Such is simply not the case. The Board understood Petitioner's application to be one for licensure by endorsement. Once the Board determined, however, that Petitioner does not qualify for licensure by endorsement because he does not have an engineering degree which would qualify him to take the licensing examination in Florida, that he has not passed a substantially equivalent examination, and that he does not hold a valid license to practice engineering issued by another state or territory of the United States, the Board reviewed Petitioner's application to ascertain if he could qualify for licensure by examination. Petitioner does not quality for licensure by examination either since his degree is essentially a bachelor's degree in chemistry and is not an engineering degree, he is not a graduate of the State University System, and he did not advise the Department of Professional Regulation before July 1, 1984, that he was engaged in active engineering work on July 1, 1981, and would be seeking a waiver of the educational requirements in order to take the examination for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure by endorsement and further finding that Petitioner's educational

background does not meet the requirements necessary to take the examination to become licensed in the State of Florida.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973

1. Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40,

   .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30,

   5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25,

   6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law.

   
   

2. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause.

   
   

3. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order.

   
   

4. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding.

   
   

5. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

Carlos Martinez Mallen 33C Venetian Way #66

Miami Beach, Florida 33139

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-005973

Orders for Case No: 89-005973