STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

1. ) CASE NO. 79-2288RP

   )

   BOARD OF ENGINEERS, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, a final hearing was conducted in the above case on December 21, 1979, in Tallahassee, Florida. The following appearances were entered: Frederick H. Wilsen, and Salvatore Carpino, Tallahassee, Florida, for the Petitioner, Department of Professional Regulation; and John J. Rimes, Tallahassee, Florida, for the Respondent, Board of Engineers.

   
   

   On November 16, 1979, the Petitioner filed a "Petition to Determine the Invalidity of a Proposed Rule" with the Division of Administrative Hearings. Petitioner is seeking a determination under Section 120.54(4), Florida Statutes, that the Respondent's proposed rules 21H-20.02 and 21H-21.04(3)(4) constitute invalid exercises of delegated legislative authority. On November 21, 1979, the Director of the Division entered an order assigning the matter to the undersigned Hearing Officer. The final hearing was scheduled by notice dated November 27, 1979.

   
   

   The Department of Professional Regulation, through its Secretary, has standing to challenge proposed rules of the Respondent Hoard. Section 455.211(1), Florida Statutes (1979). The Division of Administrative Hearings has jurisdiction over the parties to this proceeding and over the subject matter by virtue of Section 120.54(4), Florida Statutes (1979) Proposed Rule 21H-20.02

   
   

   The Board of Engineers is responsible for regulating the practice of engineering in Florida. Chapter 471, Florida Statutes (1979). The Board is specifically responsible for certifying to the Department of Professional Regulation applicants who satisfy certain statutory criteria. Section 471.015(2), Florida Statutes (1979). Section 471.013 provides that before applicants can take the necessary examination to be licensed to practice in the field of engineering in Florida, he or she must meet certain criteria. The statute provides in pertinent part:

   
   

   1. 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; or

      2. 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.

The statute basically allows an applicant to take the examination if he or she has completed an approved engineering curriculum and has 4 years of active engineering experience, or if the applicant has 10 years or more of active engineering work. Through Rule 21H-20.02 the Board seeks to include certain educational experiences in the terms "active engineering experience" and "active engineering work". Specifically, the Board would accept as equivalent to four years of work or experience a degree from an approved engineering technology program [proposed rule 21H-20.02(3)(b)], as equivalent to one year experience a masters degree in engineering [proposed rule 21H-20.02(3)(c)], and as equivalent to one year's experience a doctorate in engineering [proposed rule 21H- 20.02(3)(c)] . Requirements for an approved engineering technology program or an engineering related degree are set out at proposed rule 21H-20.02(4),(5),(6).

The Petitioner contends that the Board of Engineers is without authority to equate education with experience under Section 471.013. The contention is without merit. While no agency has inherent rulemaking authority; Section 120.54(14), Florida Statutes (1979); all agencies under the Administrative Procedure Act have the responsibility of providing notice as to how they intend to apply statutory standards. McDonald v. Department of Banking and Finance,

346 So.2d 569 (1 DCA Fla. 1977). Under Section 471.013(1)(a) 1, the Board has tide responsibility of determining whether graduates of approved engineering schools have also completed "4 years of active engineering experience of a character indicating competence to be in responsible charge of engineering". Under Paragraph (1)(a) 2 the Board has the Responsibility of determining whether applicants have "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". Clearly it is the Board's duty to apply these criteria to every applicant for licensure. If the Board adopts a policy as to whether certain types of experiences would constitute "active engineering experience" or "active engineering work" that policy would constitute a "rule" [Section 120.52(14)] and it would be the Board's responsibility to adopt the policy as a rule.

The Petitioner has also contended that equating education with work experience is arbitrary and capricious, and that the rule is therefore invalid. See: Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1979). This contention is unsupported by any evidence in the record and is contrary to the evidence. The Board has the responsibility of determining what constitutes "active engineering experience" or "active engineering work". The undisputed evidence in this matter demonstrates that completion of an engineering technology program, or of a sequence of college level courses in a discipline which is significantly related to the practice of engineering, and which includes basic science courses which an engineering degree would provide is experience of a character indicating competence to be in responsible charge of engineering. Engineering firms have found graduates of such programs to be better equipped to handle engineering responsibilities than are persons who have had work experience without any educational background.

Persons who have completed such programs have performed better on the examinetion administered by the Petitioner and by the Board than have persons who have work experience without educational background.

Engineering technology programs do not include the theoretical and scientific courses that would be offered in an approved engineering curriculum. Engineering technology programs are more application is oriented than theoretically oriented. It is certainly appropriate that persons who have completed such programs demonstrate more additional work experience than would be required of graduates of approved engineering curriculum.

The Board has similarly demonstrated that a masters degree in engineering, or a doctorate in engineering, are both equivalent or superior to one year of work experience. The Petitioner's contention that education cannot constitute experience is contrary to the evidence in this case.

Proposed Rule 21H-21.04

Proposed Rule 21H-21.04(3)(4) sets forth the Board's policy of awarding extra points on portions of the engineering examination for acceptable experience above and beyond that needed to take the examination, as well as the criteria for judging said experience. Up to ten points on the examination can be awarded for certain work experiences and up to eight points for educational experiences. The Hoard's rationale is that as engineers gain work experience they are likely to become more and more specialized. While the engineer will become more and more competent within the specialty, it is likely that the engineer will become stale in areas that are the subject of the general examination.

The responsibility of administering examinations is divided between the Petitioner, Department of Professional Regulation, through its Division of Administrative Services, and the Board. Section 455.217, Florida Statutes (1979), provides in pertinent part:

1. The Division of Administrative Services of the department shall provide services for the preparation and administration of all examinations.

   1. The division shall ensure that the examinations adequately and reliably measure an applicant's ability to practice the profession regulated by the department and shall seek the advice of the appropriate board in the preparation and administration of the examinations.

      
      

      After an examination has been administered, the board may reject any question which does not reliably measure the general areas of competency specified in the board's rules. The department shall use professional testing services to pre- pare, administer, grade, and evaluate the examinations, when such services are available and approved by the board.

      
      

   2. To the extent not otherwise specified by statute, the board 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 neces- sary to achieve a passing grade. If a practical

examination is deemed to be necessary, the rules shall specify the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade.

The statute requires that an examination be administered. It is clear that the legislature intended the examination to reliably measure an applicant's ability to practice the profession. While the policy off allowing applicants with certain work qualifications to pass the examination with lesser scores than would be required of counterparts without the experience may have its laudable aspects, it directly conflicts with the legislative mandate that examinations be developed to adequately and reliably measure an applicant's ability to practice the profession, and the placing of the responsibility for administering and grading the tests in the Petitioner department rather than in the Respondent board. Rule 21H-21.04 therefore constitutes an invalid exercise of legislative authority.

FINAL ORDER

Based upon the foregoing Memorandum opinion which includes Findings of Fact and Conclusions of Law, it is, hereby,

ORDERED:

1. Proposed Rule 21H-20.02 of the Board of Engineers constitutes a valid exercise of delegated legislative authority, and the petition to determine the invalidity of the proposed rule is hereby dismissed.

   
   

2. Proposed Rules 21H-21.04(3) and (4) as they relate to providing extra points on examinations for various experiences in engineering fields constitute invalid exercises of legislative authority. The proposed rules are hereby declared to be invalid.

DONE and ORDERED this 22nd day of January, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Department of Professional Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

John Rimes, Esquire Assistant Attorney General The Capitol

Tallahassee, Florida 32301

Col. J. Y. Read Executive Director Board of Engineers

400 West Robinson Street Orlando, Florida 32001

Ms. Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Mr. Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Docket for Case No: 79-002288RP

Orders for Case No: 79-002288RP