STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMR SALLAM,
Petitioner,
vs.
BOARD OF PROFESSIONAL ENGINEERS,
Respondent.
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) Case No. 06-3670
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RECOMMENDED ORDER
A formal hearing in this case was held before Carolyn S. Holifield, Administrative Law Judge with the Division of Administrative Hearings, on December 20, 2006, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Edwin A. Bayo, Esquire
GrayRobinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32302-3189
For Respondent: Lee Ann Gustafson, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
STATEMENT OF THE ISSUES
The issues for determination are: (1) whether Petitioner, Amr Sallam's, education meets the "substantially equivalent" criteria as set forth in Florida Administrative Code Rule
61G15-20.007; and, if so, (2) whether, by virtue of its reviews of Petitioner's education and the grounds listed in the two related previously issued notices of denial, Respondent, Board of Professional Engineers, is estopped from denying Petitioner's application.
PRELIMINARY STATEMENT
On April 14, 2005, Petitioner, Amr Sallam, applied to take the Fundamentals Examination, one of the two examinations required to be licensed as a professional engineer in Florida. Respondent, Board of Professional Engineers (the Board), denied Petitioner's application based on its determination that he had educational deficiencies in two areas. Petitioner challenged the Board's action and filed a Petition for Formal Hearing.
Subsequently, Petitioner filed an Amended Petition for Formal Hearing, which raised the alternative argument of estoppel.
The final hearing was set for November 9, 2006, but was rescheduled after Petitioner requested and was granted a continuance.
At hearing, Petitioner testified on his own behalf and offered and had three exhibits admitted into evidence.
Respondent presented the testimony of Paul Martin, executive director of the Board, and offered and had one exhibit admitted into evidence.
A Transcript was filed on January 9, 2007. Both parties timely filed Proposed Recommended Orders.
FINDINGS OF FACT
Petitioner is an applicant to take the Fundamentals Examination.
Unless an applicant is otherwise exempted, the Fundamentals Examination is the first of two examinations an applicant must pass to be licensed as a professional engineer in Florida.
Prior to applying to take the Fundamentals Examination, on two previous occasions, Petitioner applied to take the Principles and Practice Examination, the second examination required for licensure as a professional engineer in Florida. Petitioner's Educational Credentials and Teaching Experience
Petitioner received a bachelor's degree in engineering from Alexandria University in Egypt in 1994.
Petitioner received a master's degree in engineering from Alexandria University in Egypt in 1998.
Petitioner received a doctorate degree in engineering from the University of South Florida (USF) in Tampa, Florida, in 2004.
After completing his undergraduate degree, Petitioner began teaching at Alexandria University. Petitioner taught
there for seven years, including the time he was in the master's degree program.
In 2002, prior to receiving his doctorate degree, Petitioner taught geotechnical engineering at USF, which has an engineering program that is accredited by the Accreditation Board for Engineering and Technology, Inc. (ABET).
In the summer of 2006, after receiving his doctorate degree, Petitioner taught a geotechnical design course at the University of Central Florida (UCF). The engineering program at UCF is accredited by ABET.
At the time of this proceeding, Petitioner was employed by an engineering company. However, until Petitioner is licensed as a professional engineer, he cannot get a promotion within that company.
"Substantial Equivalency" Requirement for Applicants with Degrees from Foreign Institutions
Florida Administrative Code Rule 61G15-20.0071/ requires that applicants for licensure as professional engineers, who have foreign degrees, document that the engineering program they completed is substantially equivalent to an ABET accredited engineering program.
Pursuant to Rule 61G15-20.007(4), Petitioner obtained an evaluation of his education in Egypt through an evaluation service, Joseph Silny and Associates (Silny).
The evaluation conducted by Silny was a course-by- course evaluation of Petitioner's academic credentials at Alexandria University, in relation to the United States courses and semester credit hours. However, the Silny evaluation was limited to courses that Petitioner took in order to earn his bachelor of science degree in civil engineering.
The Silny evaluation did not have Petitioner's transcript from USF, and, thus, none of those courses was considered or included in that evaluation.
Based upon a review of Petitioner's academic credentials from Alexandria University from 1989 to 1994, the Silny evaluation concluded that Petitioner's bachelor's degree in civil engineering was not substantially equivalent to such degrees earned at a regionally accredited institution of higher learning in the United States. Specifically, the Silny evaluation determined that Petitioner had 27.5 of the required
32 semester credit hours in the Mathematics and Basic Sciences area and 1.5 credits of the required 16 semester credit hours in the Humanities and Social Sciences area.
To satisfy the requirements in Mathematics and Basic Sciences, the Silny evaluation indicated that Petitioner needed
4.5 semester credit hours, "including a course in probability and statistics and an additional course in either general chemistry or calculus-based physics."
The Silny evaluation awarded Petitioner 1.5 semester credit hours in Humanities and Social Sciences based on an English course he completed during his undergraduate studies. To satisfy the requirement in this area, the Silny evaluation found that Petitioner needed an additional 14.5 semester credit hours.
The Silny evaluation indicates that Petitioner took
5.5 semester credit hours in physics and lists the course as a one-class and not a two-class sequence. Although the Silny evaluation listed the physics course as one course, the credible testimony of Petitioner was that he took two classes, one after the other, to receive the 5.5 semester credit hours. Moreover, the credible testimony of both Petitioner and the Board's executive director was that they have never seen and are unaware of any physics course that offers 5.5 semester credit hours. Given this undisputed testimony, the weight of the evidence established that the 5.5 semester credit hours for physics were not for one physics course, but for a two-class sequence.
Despite the deficiencies noted in the Silny evaluation, Petitioner was not concerned. First, with respect to the deficiencies cited in Mathematics and Basic Sciences, Petitioner knew that the Silny evaluation did not include a review of his transcript from USF, which showed six additional hours of higher mathematics. Second, when Petitioner applied to
take the Principles and Practice Examination and his application was being considered, the Board's Rule 61G15-20.007(5) waived the Humanities and Social Sciences requirement for applicants, such as Petitioner, who had a post baccalaureate degree in engineering from a university in the United States that had an accredited undergraduate engineering degree program.
The Silny evaluation report dated March 31, 2005, was advisory. Pursuant to Rule 61G15-20.007(3), the Board's Education Advisory Committee (EAC) makes the final decision regarding equivalency of programs and recommends to the Board whether an applicant should be approved for admittance to the examination.
Petitioner's Initial Application Filed on April 2005
On April 14, 2005, Petitioner submitted his initial application to the Board. This application was to take the Principles and Practice Examination.
At the time Petitioner submitted his initial application, he had not taken the Fundamentals Examination.
The Silny evaluation was forwarded to and considered by the Board in its determination of whether Petitioner's bachelor's degree from Alexandria University was substantially equivalent to a degree from an ABET accredited engineering program at a regionally accredited institution of higher learning in the United States.
Prior to the Board taking final action on Petitioner's initial application, Petitioner's educational credentials were reviewed by the Board's EAC.
The EAC is responsible for reviewing and evaluating the educational credentials of applicants holding foreign degrees.
Typically, members of the EAC are engineering educators who have special expertise in discerning and comparing education courses.
Dr. Anderson was the evaluator for the EAC that considered Petitioner's educational credentials in connection with his April 2005 application. Dr. Anderson has a doctorate degree in engineering and has been in education for many years and testifies as an expert for the Board.
Like the Silny evaluation, Dr. Anderson determined that in the Mathematics and Basic Sciences area, Petitioner had
27.5 semester credit hours from courses taken at Alexandria University. However, in addition to those 27.5 semester credit hours in Mathematics and Basic Sciences, Dr. Anderson also determined that Petitioner had an additional six semester credit hours for two, three-semester credit hours of mathematics courses he took at USF, as part of his doctorate degree program. These mathematics classes, Numerical Methods III and Vector Analysis III, were higher level courses.
The EAC's July 2005 evaluation determined that Petitioner should receive credit for the higher level mathematics courses taken at USF.
Dr. Anderson's evaluation determined that Petitioner had a total number of 33.5 semester credit hours in Mathematics and Basic Sciences (27.5 from Alexandria University and six from USF), 1.5 credits more than the required number. However, Dr. Anderson noted on the educational credential review form that to satisfy the Mathematics and Basic Sciences course requirement, Petitioner still needed to take a course in "Prob [Probability] and Stat [Statistics]."
Initially, Dr. Anderson wrote on the educational credentials review form that to meet the Mathematics and Basic Sciences requirements, Petitioner "needs 4.5 hours of Math and Bas Sci [Basic Science], which must include a Prob [Probability] & Stat [Statistics] course and a second course in chem [Chemistry] and phy [Physics]." However, Dr. Anderson crossed out that entire statement and wrote that Petitioner "[n]eeds to take a course in Prob [Probability] & Stat [Statistics]."
The EAC educational credentials review form listed the following courses in Humanities and Social Sciences for which Petitioner could be given credit: English, 1.5 credits; American Civilization, three credits; Introduction to Music, three credits; and The Family, three credits.
Although Petitioner did not have the 16 semester credit hours required in Humanities and Social Sciences to document "substantial equivalency," the EAC determined that this was not an impediment to Petitioner's satisfying this requirement. On the educational credentials review form, in the Humanities and Social Sciences section, Dr. Anderson wrote, "Ph.D. 2004." This notation reflected the Board's Rule 61G15- 20.007(5), in effect when Petitioner submitted his application, which waived the Humanities and Social Science requirements for applicants who had a doctorate degree in engineering from an institution with an ABET accredited undergraduate engineering degree program.
On July 13, 2005, Dr. Anderson and Gerry Miller, Ph.D., P.E., a Board member, signed a form on which they recommended that the Board deny Petitioner's application because he needed a course in probability and statistics.
The Board accepted the EAC's determination regarding Petitioner's educational deficiencies and recommendation that Petitioner's April 2005 application be denied.
By letter dated July 15, 2005, the Board denied Petitioner's application to take the Principles and Practice Examination. Petitioner received the letter by certified mail on August 1, 2005. The letter cited three reasons for the denial: (1) Petitioner's educational deficiencies; (2) his lack
of engineering experience; and (3) his failure to take the Fundamentals Examination.
With regard to educational deficiencies, the Board's letter stated only that Petitioner was deficient in Mathematics and Basic Sciences. The letter stated the basis of this determination and indicated how this deficiency could be satisfied, as follows:
Based on the evaluation from JSA&A [Silny] and review for compliance with 61G15-20.007, Florida Administrative Code, it was determined that you [Petitioner] were deficient in the following areas:
1.0 semester credit hours in Mathematics & Basic Sciences-A course in Probability & Statistics is needed.
Except for the deficiencies in Mathematics and Basic Sciences, the Board's July 15, 2005, letter indicated that Petitioner had satisfied the requirements in Rule 61G15-20.007. The letter expressly stated that Petitioner had "satisfied" the 16-semester credit hour requirement in Humanities and Social Sciences.
According to the letter, the second reason Petitioner's application was denied was that he had not taken the Fundamentals Examination. The Board noted that Petitioner had applied for consideration of "waiving the Fundamentals Examination under Section 471.013(3)(d)[sic],"2/ but was
ineligible for such waiver. In explaining the reason Petitioner was not entitled to a waiver, the letter stated the following:
Section 471.013(3)(d),[sic][3/] F.S. addresses Licensure in Florida by examination requires Ph.D. waiver applicants to have an ABET accredited Ph.D., along with having taught full time for a minimum of three years, in order to qualify for the Fundamental Waiver. The teaching requirement has not been met, therefore, your waiver was denied.
The denial letter explained that eligibility for waiver of the Fundamentals Examination required applicants to have a doctorate degree and three years of full-time teaching experience. However, the letter failed to state that waiver provisions required that the full-time teaching experience be after Petitioner received his doctorate degree.
Third, and finally, the letter indicated that Petitioner's application was considered under Subsection 471.013(1)(a)1., Florida Statutes (2006), which requires four years of engineering experience. The letter stated,
Your application was considered under the provision of Section 471.013(1)(a)1[.], Florida Statutes (F.S.). Under that provision, you receive credit of
four (4) years for your degree, and you must verify four (4) years of engineering experience.
The Board has determined that you do not evidence four years of experience at this time.
Petitioner received the denial letter and assumed that the information contained therein was correct. In a Petition dated August 18, 2005, Petitioner responded to the Board's denial letter. In regard to his teaching experience, Petitioner indicated he had taught geotechnical engineering at USF for one year. He also indicated that prior to that, he taught Geotechnical Engineering I and II, college-level courses in Egypt for five years (from 1996 through 2001). Petitioner did not state whether these teaching positions were full-time or part-time, but the teaching experience in Egypt and at the USF was before he received his doctorate degree.
In the Petition dated August 18, 2005, Petitioner also noted that based on his calculations, he had more than the four years of engineering experience required in Subsection 471.013(1)(a)1., Florida Statutes (2006). Rule 61G15-20.002 sets out the criteria for determining engineering experience. The mere assertions in the Petition did not establish that Petitioner had the prescribed engineering experience.
Petitioner did not dispute that he needed a statistics course. Instead, in reliance on the Board's July 15, 2006, letter regarding his educational deficiencies, Petitioner enrolled in a three-semester credit hour statistics course at USF in August 2005. After Petitioner completed the statistics
course in December 2005, a copy of the Petitioner's transcript reflecting such completion was sent to the Board.
The Board's executive director testified that it was reasonable for Petitioner to rely on the July 15, 2005, denial letter.
Had the July 15, 2005, denial letter indicated that Petitioner was missing any additional courses, he would have taken all such courses during the fall of 2005, the same semester he took the statistics class.
Petitioner's Second Application Filed January 2006
In or about January 2006, after completing a three- semester credit hour statistics course, Petitioner submitted an application to the Board to take the Principles and Practice Examination.
As of January 2006, Petitioner had never applied for or taken the Fundamentals Examination, although he did not meet the eligibility requirements to waive that examination. Specifically, he did not have at least three years of full-time teaching experience at the baccalaureate level or higher after receiving his doctorate degree. See § 471.013(1)(d), Fla. Stat. (2006).
By letter dated March 29, 2006, the Board denied Petitioner's second application to take the Principles and Practice Examination.
According to the Board's March 29, 2006, letter, Petitioner's application was considered under Subsection 471.013(1)(a) and (c), Florida Statutes (2006), but was denied because Petitioner lacked the requisite engineering experience and had not passed the Fundamentals Examination. The letter states in relevant part the following:
Your application was considered for eligibility under Section 471.013(1)(a)[and](c), and [sic] Florida Statutes. Under these provisions, you receive credit of four (4) years for your degree. You must demonstrate 4 years of engineering experience and a passing score on the Fundamentals of Engineering exam.
Your application was denied for failure to evidence having passed the NCEES 8 hour Fundamentals examination. Additionally, pursuant to Section [Rule] 61G15-20.002(11),
F.A.C. you must evidence experience at the time of application. The Board has determined that you have not demonstrated four years of professional experience at the time of application.
The Board's March 29, 2006, letter did not indicate that Petitioner had any educational deficiencies in the areas listed in Rule 61G15-20.007(2).
After reading the March 29, 2006, letter, Petitioner was assured that his education had been approved, since no deficiencies were mentioned in the letter. Moreover, Petitioner had successfully completed the statistics course, which the
denial letter dated July 15, 2005, indicated he needed to take to satisfy the Mathematics and Basic Sciences requirements.4/ Petitioner's Third Application Filed in April 2006
Relying on information in the March 29, 2006, letter, on or about April 19, 2006, Petitioner submitted an application to take the Fundamentals Examination.
On or about May 17, 2006, the Board's EAC evaluated Petitioner's educational credentials and recorded information pertinent to its evaluation on an educational credential review form.5/ This evaluation was performed by Board members, Chris Bauer, Ph.D., P.E., and David Bloomquist, Ph.D., P.E. According to the form, the EAC used the Silny evaluation and transcripts from USF and the University of North Carolina for its course-by- course evaluation.
Based upon its course-by-course evaluation, the EAC concluded that Petitioner's application should be denied because its review indicated the educational criterion is not substantially comparable to EAC/ABET and Rule 61G15-20.007.
In the comment section of the May 17, 2006, educational credentials review form, the EAC noted that Petitioner needed 1.5 semester credit hours in Mathematics and Basic Sciences and 2.5 semester credit hours in Humanities and Social Sciences. The EAC specified that in Mathematics and Basic Sciences, Petitioner needed 1.5 hours in chemistry or
physics "for sequence." No specific courses were listed as needed to satisfy the Humanities and Social Sciences requirements.
The Board adopted the EAC's findings made on May 17, 2006, regarding Petitioner's educational deficiencies and also followed the EAC's recommendation that Petitioner's April 2006 application be denied.
By letter dated May 18, 2006, the Board denied Petitioner's application to take the Fundamentals Examination based on a determination that Petitioner had educational deficiencies in Mathematics and Basic Sciences and in Humanities and Social Sciences. The letter stated that because Petitioner has a bachelor's degree from Egypt, the Board reviewed the Silny evaluation to determine substantial equivalency to EAC/ABET and compliance with Rule 61G15-20.007.
With regard to the educational deficiencies, the Board's May 18, 2006, letter stated, in relevant part, the following:
[Rule] 61G15-20.007, F.A.C., states that to document substantial equivalency to an ABET accredited engineering degree, the candidate must demonstrate:
32 semester credit hours in Mathematics and Basic Sciences - Deficient
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16 semester credit hours in Humanities and Social Sciences - Deficient
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The areas of deficiencies noted above are identified as follows:
1. [Rule] 61G15-20.007, F.A.C. requires 32
semester credit hours of Mathematics & Basic Sciences. In reviewing the evaluation from Josep Silny & Associates [Silny]; [sic] the Board determined that you have evidenced
30.5 semester credit hours in Mathematic [sic] and Basic Sciences. You are deficient in 1.5 semester credit hours in Mathematics and Basic Sciences including a secondary course in Chemistry and/or Calculus based Physics. [5/]
2. Rule 61G15-20.007 requires 16 semester credit hours in Humanities and Social Sciences. You have evidenced 13.5 semester hours. In reviewing the evaluation from Josep Silny & Associates, the Board determined that you are deficient 2.5 semester credit hours in Humanities and Social Sciences. . . .
The 13.5 semester credit hours in Humanities and Social Sciences was based on a 1.5-semester credit hour English class Petitioner took at Alexandria University and four, three- semester credit hour classes that were listed on a University of North Carolina transcript.
The Board's May 18, 2006, letter denied Petitioner's application because it concluded that he was deficient by 1.5 semester credit hours in Mathematics and Basic Sciences,
including a secondary course in chemistry and/or calculus-based physics and by 2.5 semester credit hours in Humanities and Social Sciences.
The Board's determination, relative to Petitioner's educational deficiencies, in the May 18, 2006, letter is contrary and inconsistent with the Board's two prior decisions. In the first denial letter dated July 15, 2005, the Board ratified the EAC's July 13, 2005, educational credential review and decision, which determined that Petitioner needed one semester credit hour in Mathematics and Basic Sciences, including a probability and statistics course.7/
Prior to May 1, 2005, and when Petitioner initially applied to take the Principles and Practice Examination, Rule 61G15-20.007(5) waived the Humanities and Social Sciences requirements for applicants with post-baccalaureate degrees.
The Board's March 29, 2006, letter did not indicate that Petitioner had any educational deficiencies, even though the waiver provision for Humanities and Social Sciences requirements was no longer in effect. According to the second denial letter, Petitioner's application was denied because he lacked the required engineering experience and had not passed the Fundamentals Examination.
The deficiency in Mathematics and Basic Sciences noted in the Board's third denial letter dated May 18, 2006, was based
on the Silny evaluation that indicated Petitioner was 4.5 semester credit hours short in Mathematics and Basic Sciences. After reducing the 4.5-semester credit hour deficiency by the three semester credit hours Petitioner earned in the statistics course, the Board concluded that Petitioner needed 1.5 semester credit hours in Mathematics and Basic Sciences. This calculation was erroneous in that Petitioner was not granted credit for two higher level mathematic courses he took at the USF as part of his doctorate program. These two courses, Numerical Methods III and Vector Analysis III, were each three semester credit hours. Therefore, Petitioner should have been given credit for an additional six semester credit hours.
By appropriately giving Petitioner credit for 27.5 semester credit hours for courses completed at Alexandria University and three semester credit hours each for Numerical Methods III, Vector Analysis III, and Statistics, he has a total of 36.5 semester credit hours in Mathematics and Basic Sciences,
4.5 semester credit hours more than the 32 hours required.
Deficiency in Humanities and Social Sciences is Discovered After May 2006 Denial Letter
During this proceeding, the Board's executive director revealed that "sometime this past summer" (the summer of 2006), he discovered that an error had been made regarding Petitioner's credits/deficiencies in Humanities and Social Sciences.
This error came to light after it was discovered that the Board had erroneously given Petitioner credit for four courses listed on a University of North Carolina transcript, which had been mistakenly placed in Petitioner's file. The four, three semester-hour courses for which Petitioner was given credit were English, American Civilization, The Family, and Introduction to Music.
There was no evidence or testimony to indicate that Petitioner was responsible in any way for this "transcript" error. In fact, none of Petitioner's various applications to the Board listed the University of North Carolina as a school Petitioner ever attended.
Petitioner acknowledged that he never attended the University of North Carolina or took any of the courses listed on that transcript.
As noted on the Silny evaluation, Petitioner has completed only one course in the Humanities and Social Sciences area, the 1.5-semester credit hour English class he completed at Alexandria University.
The waiver of Humanities and Social Sciences requirement for applicants with doctoral degrees is no longer in effect. That wavier provision was deleted from Rule 61G15-
20.007 pursuant to an amendment, which became effective on May 1, 2005.
As a result of the transcript error, Petitioner has a deficiency of 14.5 semester credit hours in the Humanities and Social Sciences area, and not the 2.5-semester credit hour deficiency noted in the Board's May 18, 2006, letter. Therefore, Petitioner needs an additional 14.5 semester credit hours in appropriate courses to satisfy the Humanities and Social Sciences requirement.
As of the date of this proceeding, the Board had not notified Petitioner of the mistake in its May 18, 2006, letter, regarding his deficiencies in Humanities and Social Sciences. Action on Petition for Formal Hearing
Petitioner filed a Petition for Formal Hearing with Respondent on June 13, 2006.
The Board held a duly-noticed meeting on July 26
and 27, 2006. Respondent did not act on the Petition for Formal Hearing. Thereafter, on July 30, 2006, Petitioner filed a Petition for Writ of Mandamus with the First District Court of Appeal.
The Board did not advance any legitimate explanation as to why Petitioner's Petition for Formal Hearing filed six weeks prior to the July 26 and 27, 2006, meeting was not placed on that agenda. The Board's agendas are usually set about one month before the meeting.
By letter dated August 24, 2006, the Board notified Petitioner that his Petition for Formal Hearing would be considered by the Board of Professional Engineers on October 26, 2006.
On September 13, 2006, the First District Court of Appeal granted Petitioner's Petition for Writ of Mandamus and directed the Board to rule on the Petition for Formal Hearing within 15 days of the date of the Order.
On or about September 25, 2006, the Board forwarded Petitioner's Petition for Formal Hearing to the Division of Administrative Hearings. This was more than three months after the Petition was filed with the Board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57, and 120.60, Florida Statutes (2006).
Petitioner, as an applicant for licensure, has the burden of proof in this proceeding and must demonstrate by a preponderance of the evidence that he is eligible for licensure. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Sterne and Co., 670 So. 2d 932 (Fla. 1996); Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250 (Fla. 3rd DCA 1999); and Balino v.
Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
Statutory Scheme for Professional Engineering Licensure By Examination
Section 471.013, Florida Statutes (2006), sets forth the requirements for a person to be licensed by examination as a professional engineer and which provides, in pertinent part, the following:
(1)(a) A person shall be entitled to take an examination for the purpose of determining whether she or he is qualified to practice in this state as an engineer if the person is of good moral character and:
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;
* * *
A person shall not be entitled to take the principles and practice examination until that person has successfully completed the fundamentals examination.
The board shall deem that an applicant who seeks licensure by examination has passed the fundamentals examination when such applicant has received a doctorate degree in engineering from an institution that has an undergraduate engineering program that is accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc., and has taught engineering full time for at least 3 years, at the
baccalaureate level or higher, after receiving that degree.
The above-quoted statutory provision requires that a person seeking licensure as a professional engineer must complete the Fundamentals Examination and the Principles and Practice Examination. See § 471.013(1)(c), Fla. Stat. (2006).
Generally, a person is not entitled to take the Principles and Practice Examination until he or she has successfully completed the Fundamentals Examination. See
§ 471.013(1)(c), Fla. Stat. (2006).
Notwithstanding this requirement, an applicant is deemed to have passed the Fundamentals Examination when such applicant has a doctorate degree from an institution that has an undergraduate engineering program that is accredited by ABET and has taught engineering full-time for at least three years at the baccalaureate level or higher, after receiving that degree. See
§ 471.013(1)(d), Fla. Stat. (2006).
The prerequisites for taking the Fundamentals Examination and/or the Principles and Practice Examination are that the person must be of good moral character and must meet one of the three educational and engineering experience requirements set forth in Subsection 471.013(1)(a), Florida Statutes (2006). Relevant to this case is Subsection 471.013(1)(a)1., Florida Statutes (2006), which requires that
the applicant be a graduate of an approved engineering curriculum of four years or more in a school, college, or university which has been approved by the Board and have a record of four years of engineering experience as defined in Rule 61G15-20.002.
The Board is authorized to adopt rules to implement Chapter 471, Florida Statutes (2006). See § 471.008, Fla. Stat. (2006).
Section 471.013, Florida Statutes (2006), requires the Board to adopt rules providing for the review and approval of schools or colleges and the courses of study in engineering in such schools and colleges. These rules must be based on the educational requirements for engineering as defined in Section 471.005, Florida Statutes (2006). The adoption of such rules provides an objective standard upon which to determine if applicants meet the educational prerequisites for taking the professional engineering licensure examination. See
§ 471.013(1)(a)1., Fla. Stat. (2006).
Consistent with its review and approval responsibility, the Board has prescribed criteria by which applicants with degrees from foreign institutions can establish that such degrees are "substantially equivalent" to an ABET accredited engineering program. See Fla. Admin. Code R.
61G15-20.007.
Rule 61G15-20.007 provides, in relevant part, the following:
Foreign Degrees
Applicants having degrees from foreign institutions shall be required to document "substantial equivalency" to the 2002 ABET Accreditation Yearbook for Accreditation Cycle Ended September 30, 2002 engineering criteria. This document is hereby incorporated by reference.
In order to document "substantial equivalency" to an ABET accredited engineering program, the applicant must demonstrate:
32 college credit hours of higher mathematics and basic sciences. The hours of mathematics must be beyond algebra and trigonometry and must emphasize mathematical concepts and principles rather than computation. Courses in probability and statistics, differential calculus, integral calculus, and differential equations are required. Additional courses may include linear algebra, numerical analysis, and advanced calculus. As for the hours in basic sciences, courses in general chemistry and calculus-based general physics are required, with at least a two semester (or equivalent) sequence of study in either area. Additional basic sciences courses may include life sciences (biology), earth sciences (geology), and advanced chemistry or physics. Computer skills and/or programming courses cannot be used to satisfy mathematics or basic science requirements.
16 college credit hours in humanities and social sciences. Examples of traditional courses in this area are philosophy, religion, history, literature, fine arts, sociology, psychology, political
science, anthropology, economics, and no more than 6 credit hours of languages other than English or other than the applicant’s native language. Courses in technology and human affairs, history of technology, professional ethics and social responsibility are also acceptable. Courses such as accounting, industrial management, finance, personnel administration, engineering economics and military training are not acceptable. Courses which instill cultural values are acceptable, while routine exercises of personal craft are not.
48 college credit hours of engineering science and engineering design. . . .
Substantial Equivalency of Petitioner's Engineering Program
The issue in this case is whether Petitioner met the educational requirements in the Mathematics and Basic Sciences area and in the Humanities and Social Sciences area. Mathematics and Basic Sciences Requirements
To meet the Mathematics and Basic Sciences requirement in Rule 61G15-21.007(2)(a), an applicant must have 32 semester credit hours in the courses designated therein.
Despite conflicting letters sent out by the Board, the evidence established that Petitioner has not only met the
32-semester credit hour requirement in Mathematics and Basic Sciences, but exceeded it.
The undisputed evidence demonstrated that Petitioner was appropriately awarded credit for the 27.5 semester credit hours for courses taken at Alexandria University and three
semester credit hours for a statistics course taken at USF. Additionally, the July 2005 EAC correctly determined that Petitioner should be awarded six semester credit hours for the two, three-semester credit hour higher level mathematics courses that he took as part of his doctorate degree program at USF. Therefore, Petitioner has a total of 36.5 semester credit hours in Mathematics and Basic Sciences.
The undisputed evidence established that the physics course listed on the Silny evaluation as one 5.5-semester credit hour course was actually two sequential courses in physics. Therefore, Petitioner has met the requirement in Rule
61G15-21.007(2)(a) that the hours in Mathematics and Basic Sciences include courses in chemistry or calculus-based physics, with at least a two semester (or equivalent) sequence of study. Humanities and Social Sciences Requirements
Rule 61G15-21.007(2)(b) requires 16 semester credit hours in Humanities and Social Sciences.
The evidence established that Petitioner has 1.5 semester credits hours in Humanities and Social Sciences. Accordingly, he is deficient in this area by 14.5 semester credit hours.
The evidence showed that the Board first notified Petitioner that he was deficient in Humanities and Social Sciences in the third denial letter dated May 18, 2006.
Furthermore, the undisputed evidence established that the May 18, 2006, letter advised Petitioner that he was only deficient in Humanities and Social Sciences by 2.5 semester credit hours.
It is undisputed that the third denial was based on Petitioner's being awarded credit for classes that were listed on a transcript mistakenly placed in his file and that the transcript was from a university that Petitioner never attended.
The Board's first denial letter dated July 15, 2005, and its second denial letter dated March 29, 2006, made no mention of Petitioner's being deficient in Humanities and Social Sciences. This omission was apparently intentional and based on the version of Rule 61G15-21.007(5) that was effective in
April 2005 when Petitioner submitted his first application.
The version of Rule 61G15-21.007(5) in effect in January 2005 waived the Humanities and Social Science requirement for applicants who were otherwise qualified under the rule. In accordance with that rule, an applicant, such as Petitioner with a doctorate degree in engineering from a school in the United States with an ABET accredited engineering curriculum at the baccalaureate level, was "deemed to have met all the required hours in humanities and social sciences."8/
The version of Rule 61G15-20.007(5) in effect in January 2005 was substantially amended on May 1, 2005, prior to
the Board's acting on Petitioner's initial application and is currently in effect.
The May 1, 2005, amendment to Rule 61G15-21.007 deleted the provision in that rule which authorized a waiver of the Humanities and Social Sciences requirement for any qualified applicant. As a result of the amendment, effective May 1, 2005, the Humanities and Social Sciences requirement could not be waived for any applicant, including those who were previously eligible for such waiver.
Any change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application. Therefore, agencies must apply the law in effect at the time of final determination, rather that at the time of the submission of an application. Lavernia v.
Department of Professional Regulation, Board of Medicine, 616 So. 2d 53 (Fla. 1st DCA 1993). In light of the foregoing, Petitioner's applications must be considered under the statutory and rule provisions in effect at the time the Board made a final determination on each of the applications. When the Board made each determination, the operative and applicable statutory provisions did not authorize waiver of the Humanities and Social Sciences requirement.
In light of the foregoing, Petitioner's applications must be considered under the statutory and rule provisions in
effect at the time the Board made a final determination on the application. The amended and current version of Rule 61G15- 20.007(5) does not authorize waiver of the Humanities and Social Sciences requirement.
The current version Rule 61G15-20.007(5), in effect since May 1, 2005, provides:
(5) Any applicant whose only educational deficiency under subsection (2) involves humanities and social sciences shall be entitled to receive conditional approval to take the Fundamentals examination. Such an applicant shall not become eligible for the Principles and Practice examination until satisfactory completion and documentation of the necessary hours in humanities and social sciences as provided in subsection (2).
Under the amended and current version of Rule 61G15-21.007(5), an applicant's failure to meet the Humanities and Social Sciences requirement is not a bar to his taking the Fundamentals Examination. The rule provides that if an
applicant has met all the other educational requirements, he is entitled to conditional approval to take the Fundamentals Examination. However, such applicants must meet the Humanities and Social Sciences requirement in order to take the Principles and Practice Examination.
Clearly, the Board's July 2005 and March 2006 letters failed to notify Petitioner of his deficiencies in Humanities and Social Sciences. Nonetheless, such omissions are not a
basis for waiving the Humanities and Social Sciences requirement for Petitioner when the operative law at the time the Board took final action did not allow for such waiver.9/
Equitable Estoppel
Petitioner does not dispute that he does not meet the 16-semester credit hour requirement in Humanities and Social Sciences. See Fla. Admin. Code R. 61G15-20.007(2)(b). Rather, Petitioner argues that by virtue of the errors made by the Board in acting on his three applications, the doctrine of equitable estoppel may be applied against the Board.
Two general rules are applicable to equitable estoppel claims against the state. First, the doctrine of equitable estoppel may be applied against the state only in rare instances and exceptional cases. Second, the state cannot be estopped through mistaken statements of law. State Department of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981).
To demonstrate a claim of equitable estoppel, there must be the following: (1) a representation as to a material fact that is contrary to a later asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon. Anderson, 403 So. 2d at 400; and Tri-State
Systems v. Dept. of Transportation, 500 So. 2d 212 (Fla. 1st DCA 1986).
The evidence established, and it is undisputed, that the Board made representations as to material facts that were contrary to later asserted facts regarding Petitioner's educational deficiencies in Mathematics and Basic Sciences and in Humanities and Social Sciences.
In regard to Mathematics and Basic Sciences, in July 2005, the Board notified Petitioner that to satisfy the Mathematics and Basic Sciences requirements, he only needed to complete a course in probability and statistics. Relying on the Board's representation, Petitioner completed a statistics class in December 2005. By failing to mention any educational deficiencies in its March 2006 letter, the Board appeared to validate that by completing the statistics course, Petitioner had satisfied the Mathematics and Basic Sciences requirement. However, in a third letter dated May 2006 letter, the Board made a representation that was clearly contrary to its earlier assertion by telling Petitioner that he needed to take a secondary chemistry and/or calculus-based physics course to satisfy the Mathematics and Basic Sciences requirement.
The issue related to the Mathematics and Basic Sciences deficiencies is no longer an issue as the evidence established that Petitioner met the requirement in Rule 61G15- 21.007(2)(b).
In regard to the Humanities and Social Sciences requirement, in a July 2005 letter to the Board, expressly notified Petitioner that he "satisfied" that requirement. The Board's second letter mentioned no educational deficiencies, thereby indicating that Petitioner had met the Humanities and Social Sciences requirement. The Board's third letter indicated that Petitioner was deficient in Humanities and Social Sciences by 2.5 semester credit hours. Finally, during the proceeding, the Board's position was that Petitioner was deficient in that area by 14.5 credit hours.
Petitioner testified, credibly, that he relied on the Board's early assertions that he had satisfied the Humanities and Social Sciences requirement. In reliance on those representations, Petitioner took no courses that would meet the Humanities or Social Sciences requirement. Also, Petitioner's credible testimony was that had the Board indicated additional educational deficiencies, he would have timely addressed these.
In order to establish a claim of equitable estoppel, Petitioner must establish all three elements described in paragraph 112. Here, Petitioner has failed to show the third element necessary to establish equitable estoppel. None of the evidence presented established that Petitioner changed his position to his detriment, in reliance on the Board's representations. Having failed to establish the three requisite
elements necessary to apply equitable estoppel, Petitioner's claim under this theory must fail.
Assuming, arguendo, that Petitioner had established all three elements necessary to demonstrate estoppel, he could not prevail in this case. First, estoppel is not appropriate when it would result in the granting of a license to an applicant who does not meet the qualifications therefor. Humhosco, Inc. v. Department of Health and Rehabilitative Services, 561 So. 2d 388 (Fla. 1st DCA 1990). Second, estoppel is not appropriate where representations are a mistake of law.
In order to be licensed, Petitioner must (1) satisfy the educational requirements in Rule 61G15-21.007; (2) pass the Fundamentals Examination, unless exempted by Subsection 471.003(1)(d), Florida Statutes (2006); (3) demonstrate four years of active engineering experience; and (4) pass the Principles and Practice Examination. Petitioner must comply with the statutory and rule requirements for licensure.
§ 471.013, Fla. Stat. (2006) and Fla. Admin. Code R. 61G15- 21.007.
The evidence established that Petitioner is deficient in the Humanities and Social Sciences in that he has only 1.5 semester credit hours of the 16 semester credit hours required in Rule 61G15-21.007(2)(b).
To the extent Petitioner does not meet the statutory and rule requirements for licensure as a professional engineer, the Board cannot waive or excuse Petitioner from those requirements, even though the Board made mistakes in its three denial letters.10/ The Board cannot be estopped from requiring Petitioner to meet the legally prescribed licensure requirements, including the Humanities and Social Sciences requirements. See Fla. Admin. Code R. 61G15-21.007(2)(b).
With regard to the Humanities and Social Sciences requirement, all three of the Board's letters to Petitioner were incorrect. At no time did any statutory or rule provision allow Petitioner to waive the Humanities and Social Sciences requirement. Accordingly, a misunderstanding of the relevant law was the apparent basis for the Board's representation in the July 2005 and March 2006 letters which indicated that Petitioner met that requirement. The third letter erroneously gave Petitioner credit for 12 hours of courses that he did not take, but were on a transcript that was mistakenly placed in Petitioner's application file. Such mistakes of law cannot be the basis of and/or support a claim for estoppel against the Board.
Although the Board may not waive the requirements mandated by law, consistent with its responsibility to deny applications which do not comport with the statutory and rule
requirements, the Board is obligated to accurately convey to each applicant the reasons the application was denied.
Undoubtedly, this requires that the Board carefully review applications to ensure that the information it provides to applicants regarding their educational deficiencies, experience deficiencies, and other relevant matters associated with their applications, is accurate, complete, and unambiguous.
While some errors in processing applications may be inevitable, the number of mistakes made in this case have unnecessarily prolonged and extended the licensing process for Petitioner.
Nonetheless, Petitioner failed to prove that he meets the educational criteria in Rule 61G15-21.007(2)(b), the
16 semester credit hours in Humanities and Social Sciences.
Pursuant to the Rule 61G15-21.007(5), as amended, Petitioner is entitled to conditional approval to take the Fundamentals Examination, but must satisfy the Humanities and Social Sciences requirements prior to taking the Principles and
Practice Examination.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that Respondent, Board of Professional Engineers, enter a final order which (1) finds that Petitioner
has met the Mathematics and Basic Sciences requirement;
(2) conditionally approves Petitioner's application to take the Fundamentals Examination in accordance with Florida Administrative Code Rule 61G15-21.007(5); and (3) allows Petitioner to take the Fundamentals Examination the next time it is administered.
DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida.
S
CAROLYN S. HOLIFIELD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2007.
ENDNOTES
1/ All other references to Florida Administrative Code Rule 61G15-20 are cited as Rule 61G15-20.
2/ The correct cite for the waiver provision is Subsection 471.013(1)(d), Florida Statutes (2006). Section 471.013, Florida Statutes (2006), does not have a subsection (3) as cited in the Board's letter.
3/ See Endnote 2 above.
4/ The educational credentials review form, which had been completed by Dr. Anderson on July 13, 2005, had a hand-written note that Petitioner had taken the statistics course. This notation was apparently made by one of the two EAC members who reviewed Petitioner's second application. Both members signed the notation which is dated March 18, 2006.
5/ Members of this EAC were provided with Petitioner's entire file, which included the educational credentials review form completed in connection with Petitioner's initial application submitted in April 2005. However, it is unknown whether the members of the EAC who reviewed Petitioner's educational credentials in May 2006 were aware of or considered the review of Petitioner's educational credentials completed by the EAC in July 2005 and in March 2006.
6/ The Silny evaluation indicated that Petitioner needed 4.5 semester credit hours in Mathematics and Basic Sciences, but this number was reduced to 1.5 after Petitioner took and was given credit for the three semester credit hours for the statistics course taken in the fall of 2005.
7/ The educational credentials review form dated July 13, 2005, indicates that the EAC considered, but rejected the Silny evaluation's determination that Petitioner needed to take a second course in chemistry or physics. In fact, neither the EAC member, Dr. Anderson nor Dr. Miller, indicated that Petitioner needed or was deficient in a sequence in physics or chemistry.
As a result of the EAC's review and evaluation of Petitioner's USF's transcript on July 13, 2005, it determined that Petitioner should be given credit for two higher level mathematics courses taken during his doctorate degree program. Because each of these courses was a three-semester credit hour course, the EAC determined that Petitioner had 27.5 semester credit hours (from his undergraduate studies), plus six additional semester credit hours from the higher level mathematics courses taken at USF, for a total of 33.5 semester credit hours. However, Petitioner needed to take a probability and statistics course to comply with the course requirements prescribed in Rule 61G15- 20.007(2)(a).
8/ The pre-May 1, 2005, version of Rule 61G15-20.007(5) provided the following:
(5) Applicants who have completed a post baccalaureate engineering program from a school or college in the United States which
has an ABET accredited engineering curriculum in that discipline at the baccalaureate level shall be deemed to have met the required hours in humanities and social sciences.
9/ Where deemed appropriate, a person may seek variances and waivers to agency rules pursuant to Section 120.542, Florida Statutes (2006).
10/ For example, it was obvious that Petitioner first applied for the Principles and Practice Examination because he mistakenly believed he was eligible to waive the Fundamentals Examination pursuant to Subsection 471.013(1)(d), Florida Statutes (2006). (The Board's letter incorrectly cited the waiver provision as Subsection 471.013(3)(d), a subsection that does not exist.) However, the Board's first denial letter failed to clearly and completely articulate the reason Petitioner was not eligible for such wavier. Instead of stating that the Fundamentals Examination waiver required a doctorate degree and three years of full-time teaching experience after receiving the doctorate degree, the Board's letter indicated only that Petitioner did not have three years of full-time teaching experience. As a result of the Board's incomplete explanation, Petitioner provided information about his teaching experience that was prior to his receiving his doctorate degree and, then, applied a second time to take the Principles and Practice Examination, even though he was not eligible to waive the Fundamentals Examination.
COPIES FURNISHED:
Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Edwin A. Bayo, Esquire GrayRobinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32302-3189
Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and
Professional Regulation 2507 Callaway Road, Suite 200
Tallahassee, Florida 32303-5267
Michael Martinez, Acting General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Patrick Creehan, Esquire Chief Prosecuting Attorney
Florida Engineers Management Corporation 2507 Callaway Road, Suite 200
Tallahassee, Florida 3303-5267
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 15, 2007 | Agency Final Order | |
| Mar. 19, 2007 | Recommended Order | Equitable estoppel may not be applied where Respondent made inaccurate representations to Petitioner regarding the humanities and social sciences requirements. Petitioner must complete all requirements in Florida Administrative Code Rule 61G15-21.007. |
