STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS JOSEPH FERRANO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5776

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 16, 1990, in Miami, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francis Joseph Ferrano, pro se

1738 North 16th Court Hollywood, Florida 33020

For Respondent: Edwin A. Bayo, Esquire

Assistant Attorney General The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this case is whether, for the purpose of qualifying to take the professional engineering licensure examination, Francis Joseph Ferrano (Petitioner) should be granted credit for engineering experience based upon his employment history and the publication of two papers while he was a student at the University of Miami.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf and also called Kau-Fui Vincent Wong, who was accepted as an expert in professional engineering. The Petitioner introduced forty-eight exhibits. The Respondent called Charles Edward Langbein, P.E., who was accepted as an expert in professional engineering.

The transcript of the final hearing was filed on December 7, 1990, and thereafter, the parties were allowed ten days within which to file proposed recommended orders. A ruling on each proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner graduated from the University of Miami with a degree in engineering in April 1990. He applied to take the examination for the purpose of determining whether he is qualified to practice professional engineering in the State of Florida. By letter from Respondent dated July 9, 1990, the Petitioner was informed that his application did not meet the requirement for 48 months engineering experience, and that it had, therefore, been determined that he was not qualified to take the licensure examination. Petitioner timely requested a hearing to determine if he should be granted 48 months credit for work experience and for the publication of two papers while a student at the University of Miami, and based thereon, whether he should be allowed to take the licensure examination.

   
   

2. Petitioner claims 7 months experience while he was at the United States Naval Academy from July 1975, to March 1978. However, he introduced no evidence which would establish the type and nature of the qualifying experience he gained while at the Naval Academy, and therefore, he properly received no credit from the Respondent for this period.

   
   

3. From July 1981 until August 1984, Petitioner was employed as a mechanical journeyman with Airtech Air Conditioning, Inc., in Miami, Florida, and claims 38 months experience for the work he performed during this employment. However, the employer verification form submitted by the Petitioner for this employment indicates that he engaged in "limited engineering" and his employer has "no knowledge" of the Petitioner's experience of being in "responsible charge of engineering." Therefore, the Respondent properly gave the Petitioner no credit for this period.

   
   

4. Petitioner was the qualifier and owner of Eagle Air Conditioning, Inc., in Hollywood, Florida, from August 1984 until January 1988, and claims 41 months experience for this period. He held a Class A Air Conditioning Contractor's license during this period. Income tax returns which the Petitioner introduced in support of his claim of practical work experience credit for this period do not establish the specific kind of work in which the company was engaged or whether the Petitioner was actively engaged in, and in responsible charge of, engineering. The only notarized reference form submitted by Petitioner concerning this period of employment references one job, a bowling alley project, and indicates that a person other than the Petitioner designed the air conditioning system involved in that job, while the Petitioner was simply responsible for the installation of the system. Therefore, the Respondent properly gave the Petitioner no credit for this period.

   
   

5. From January 1988 to April 1990, the Petitioner attended the University of Miami, graduating and receiving his engineering degree. While a student at the University of Miami, the Petitioner worked on two papers with Professor Kau- Fui Vincent Wong, Ph.D., P.E., which were subsequently published in the "ASHRAE Transactions", a publication of the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. Competent substantial evidence was not introduced to establish that student research, or publication while a student is pursuing an engineering degree, have ever been accepted as practical work experience for which any applicant has ever been given credit toward the 48 month experience requirement. In addition, the exact nature of the work which Petitioner performed in the preparation of these papers, and how this work would qualify to establish that the Petitioner was in "responsible charge of

   engineering" for this period, was not established. Therefore, although Petitioner claims 12 months credit for his work on these papers, the Respondent properly gave the Petitioner no credit for this period.

   
   

6. The Petitioner claims 16 months credit for his employment with Poole and Kent Company, an engineering firm in Miami, Florida, from December 1989, until August 1990. However, the employment verification form and one letter of recommendation submitted for this period were not completed by professional engineers, and therefore, the representation that the Petitioner was in responsible charge of engineering during this period is not credited. A second letter of recommendation in connection with this employment was completed by a professional engineer, but simply indicates that Petitioner was "directly involved with all facets of" the City of Sunrise water treatment plant expansion project, and that he has shown "an ability to apply (engineering) concepts to the problems at hand". This recommendation does not constitute competent substantial evidence that Petitioner has been in "responsible charge of engineering" during this period of employment. Therefore, the Respondent properly gave the Petitioner no credit for this period.

   
   

7. Based upon the work experience set forth above, as well as the publication of two papers with Professor Wong, the Petitioner has claimed a total of 102 months experience prior to his graduation from the University of Miami. If the Petitioner is given 35% credit for these 102 months, he would have a total of 36 months creditable experience, to which he would add 12 months of experience with Poole and Kent in order to meet the requisite 48 hours of practical experience to qualify to take the licensure examination.

   
   

8. However, there is no competent substantial evidence to establish that any of the Petitioner's claimed experience would qualify for credit. Nevertheless, even if a portion of this experience were found to be qualified, there is no evidence in the record to establish that 35% would be an appropriate percentage to be applied to his pregraduation work experience. The Board of Professional Engineering does grant partial credit to qualifying pregraduation work experience, but the usual and customary percentage applied is 25%. Under limited circumstances when such experience involves highly responsible engineering duties, an applicant may be given more than 25% credit for certain pregraduation experience. However, there is nothing in this record to show that the usual 25% factor should be applied, much less a higher percentage. Credit has never been given for the publication of a paper while a student pursuing a degree in engineering.

   
   

9. Based upon the foregoing, it is found that the Respondent properly determined that the Petitioner is 48 months short of the 48 months experience required to qualify for the professional engineering licensure examination.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

11. Section 471.013(1)(a)1., Florida Statutes, authorizes an applicant to take the examination for professional engineering licensure if he has a degree from an approved engineering program, "and has a record of 4 years of active engineering experience of a character indicating competence to be in responsible charge of engineering." The Board of Professional Engineers has adopted Rule 21H-20.002(2)(a), Florida Administrative Code, which provides that:

    In order to verify an applicant's experience record, the Board will require evidence of employment from employers or supervisors

    who are employed in the engineering profession or are professional engineers, who shall

    set forth the quality and character of the applicant's duties and responsibilities.

    
    

12. The Board has also adopted Rule 21H-18.011, which in pertinent part sets forth the following definition:

    
    

    1. "Responsible Charge" shall mean direct control and personal supervision of engineering work done by oneself or by others over which the applicant exercises supervisory authority.

       
       

13. Since this is a case in which Petitioner is seeking to establish his qualification to take the professional engineering licensure examination, the Petitioner has the burden of establishing his qualifications by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Specifically, an applicant who seeks to establish that the initial review of his application was incorrect, must show that the agency's initial decision was arbitrary or capricious. Harac

    v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported

    by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as

    such evidence as a reasonable person would accept as adequate to support a conclusion.

    
    

14. Petitioner challenges the Respondent's determination that he has no credit toward the 48 months of experience required to take the licensure examination, but he has not sustained his burden of proof in this regard. There is no evidence of engineering work which he claims to have done while at the Naval Academy. His experience as a mechanical journeyman while with Airtech Air Conditioning does not meet the definition of "engineering" found at Section 471.005(6), Florida Statutes, and he has not submitted any evidence that he was in responsible charge of engineering during this time. As the owner of Eagle Air Conditioning, Petitioner held a Class A air conditioning license. However, Section 471.003(2)(i), Florida Statutes, places specific limits on the kinds of air conditioning systems which air conditioning contractors can design, and there is no evidence regarding the general kinds and nature of systems with which the Petitioner dealt during this time. The only verification of engineering experience for this period deals with one project which the Petitioner installed. There is no authority for Petitioner's claim of experience for publication of two articles while a student at the University of

Miami. The employment verification forms submitted by the Petitioner regarding his employment with Poole and Kent are not sufficient to establish that he has been in responsible charge of engineering during this period.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified to take the professional engineering licensure examination.

DONE AND ENTERED this 19th day of December 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December 1990.

APPENDIX TO RECOMMENDED ORDER

The Petitioner submitted a narrative letter summarizing the evidence presented at hearing. Specific rulings cannot be made to the unnumbered paragraphs contained in his letter since they mix proposed facts with proposed conclusions of law, but Petitioner's letter has been considered in the preparation of this Recommended Order.

Rulings on the Respondent's Proposed Findings of Fact: 1-2. Adopted in Finding 1.

1. Adopted in Finding 2.

2. Adopted in Finding 3.

3. Adopted in Finding 4.

4. Adopted in Finding 5.

5. Adopted in Findings 5 and 6.

6. Adopted in Finding 8.

7. Adopted in Findings 3 and 8.

8. Adopted in Findings 4 and 8.

9. Adopted in Finding 8.

COPIES FURNISHED:

Francis Joseph Ferrano 1738 North 16th Court Hollywood, FL 33020

Edwin A. Bayo, Esquire Assistant Attorney General The Capitol

Tallahassee, FL 32399-1050

Kenneth E. Easley, Esquire Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Robert D. Cotton Executive Director Board of Chiropractic

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-005776

Orders for Case No: 90-005776