STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW MINOT NICHOLSON, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0282

) BOARD OF PROFESSIONAL GEOLOGISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on November 21, 1989, at Tampa, Florida.

APPEARANCES

For Petitioner: Maxwell G. Battle, Esquire

1460 Beltrees Street

Dunedin, Florida 34698

For Respondent: Clark R. Jennings, Esquire

Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32395-1050

STATEMENT OF THE ISSUES

Whether Petitioner is qualified for licensure as a professional geologist pursuant to the grandfather provision of Section 492.105(2)(c), Florida Statutes (1987).

PRELIMINARY STATEMENT

By application for licensure as a professional geologist dated August 22, 1988, Andrew Minot Nicholson, Petitioner, seeks licensure pursuant to Section 492.105(2)(c), Florida Statutes. This Section provides that applicants meeting the requirements of licensure by examination as prescribed in Section 492.105, Florida Statutes, may be licensed without written examination if application is made in proper form within one calendar year of October 1, 1987.

At the commencement of the hearing, Respondent stipulated that Petitioner's application was timely submitted to comply with the grandfather provisions of the statute and that Petitioner met all of the requirements for licensure except the educational requirements of Section 492.105(1)(d)2, Florida Statutes.

Thereafter Petitioner testified in his own behalf, called Respondent's witness and 10 exhibits were admitted into evidence.

Treatment accorded proposed findings submitted by the parties is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Andrew Minot Nicholson, Petitioner, applied for licensure as a professional geologist pursuant to the grandfather provisions of Section 492.105(2)(c), Florida Statutes. This provision exempts qualifying applicants from taking and passing the examination required of other applicants.

   
   

2. The Respondent has stipulated that Petitioner is in all respects qualified for licensure, except for the educational requirements contained in Section 492.105(1)(d)2, Florida Statutes.

   
   

3. Petitioner graduated from the Florida Institute of Technology (FIT) in 1973 with a degree in Ocean Engineering. He later returned to FIT and received a master's degree in Business Administration.

   
   

4. The courses which Petitioner argues meets the educational requirements for licensure as a professional geologist are as follows (all from FIT)

   
   

   Course	Abbreviation	Course Title	Course	Hours	Earned
   	ST161	Introduction to Earth and Space Sciences		3
   	ST313	Materials Science	I	3
   	ST314	Materials Science	II	3
   	OE3505	Ocean Engineering	Design	3
   ST315		Materials Laboratory		1
   0E3583		Marine Geology Laboratory		1
   0E4506		Ocean Engineering Design II		3
   OE3001		Introduction to Oceanography		3
   OE3503		Marine Geology		3
   OE3002		Chemical Oceanography		3
   OE3500		Fluid Mechanics I		3
   OE4507		Soil Mechanics		3
   OE4508		Hydroacoustics		3
   OE3581		Fluid Mechanics Laboratory I		1

   OE3502 Fluid Mechanics II 3

   OE3582 Fluid Mechanics 1

   Laboratory II

   OE4502 Optical Oceanography 3

   0E4581 Optical Ocean Laboratory 1

   OE4433 Solid Mechanics I 3

   0E4505 Ocean Waves 3

   
   

5. The above courses, with the exception of Introduction to Earth and Space Sciences, are upper division courses successfully completed by Petitioner. The hours listed are quarter hours.

   
   

6. Fifty quarter hours are roughly equivalent to 40 semester hours.

   
   

7. Of those courses in finding four above only Introduction to Earth and Space Sciences (ST161), Marine Geology Laboratory (OE3583), Introduction to Oceanography (OE3001) and Marine Geology (OE3503) were accepted by Respondent as meeting the statutory identification as geology courses.

   
   

8. Geology is a precise science which relies on knowledge about principles which can only be obtained by taking core courses in geology programs. These core courses include Historical Geology, Structural Geology, Mineralogy, Optical Mineralogy, Petrology, Sedimentology, Geophysics, Geochemistry, Stratigraphy, Economic Geology, Hydrogeology, Field Methods and Paleontology.

   
   

9. The courses taken by Petitioner at FIT were primarily oceanographic engineering or oceanography courses and the geological aspects of the courses he took related only to the aquatic aspects of geology. Petitioner's practical experience, which was accepted as adequate by the Board, involved only aquatic geology. If Petitioner's practice of geology were limited to an oceanographic setting, with the training he received at FIT, he would be qualified for licensure. However, there are not geology licenses limited to one specific field of geology.

   
   

10. Petitioner contends that because FIT is listed in the Directory of Geoscience Departments by the American Geological Institute, a degree from that school qualifies him to meet the educational requirements for licensure. This document is a directory of academic geoscience departments which include geology departments as well as oceonographic institutes. A listing of the professors at FIT in this directory reveals a heavy orientation of their degrees towards oceanography and ocean engineering as opposed to geology.

    
    

11. Licensing of professional geologists came to being in Florida with the enactment of Chapter 87-403 Laws of Florida. Accordingly, applications for licensure have been processed for only one year and Rules have not been adopted which define and interpret various provisions of this statute such as what constitutes "geological courses".

    
    

12. Respondent has a proposed rule to provide a more detailed explanation of what criteria an applicant must meet to satisfy the educational requirements for licensure. Such a policy constitutes incipient agency action pending the adoption of rule.

13. Respondent's witness explained that since there are no provisions for limited licenses in geology, the Board has adopted a policy which requires applicants for licensure to demonstrate that they have taken enough core geology courses to have been subjected to nearly all phases of geology. This will permit them, hopefully, to at least recognize problems that may need additional research to resolve, while holding themselves out as licensed professional geologists.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

15. Section 492.102(3) Florida Statutes defines "geology" to mean the science which includes the treatment of the

    earth and its origin and history, in general; the

    investigation of the earth's crust and interior and the solids and fluids, including all surface and underground waters, and gasses which compose the earth; the study of the natural agents, forces and processes which cause changes in the earth; and the utilization of this knowledge of the earth and its solids, fluids and gasses, and their collective properties and processes, for the benefit of mankind.

    
    

16. Section 492.102(3) defines a "geologist" as . . .

    an individual who, by reason of his knowledge of geology, soils, mathematics, and the physical and life sciences, acquired by education and practical experience, is capable of practicing the science of geology.

    
    

17. Section 492.105(1)(d) Florida Statutes provides that to be licensed as a professional geologist in Florida one must, in addition to the other requirements established in Chapter 492,

    
    

    Fulfill[s] the following educational requirements of a college or university the geological curricula of which meet the criteria established by an accrediting agency recognized by the United States Department of Education:

    
    

    1. Graduation from such college or university with a major in geology or other science acceptable to the department; and

       
       

    2. Satisfactory completion of at least 30 semester hours of geological courses, 24 of which must be at the third or fourth year or graduate level.

       
       

18. In the instant case Respondent accepted Petitioner's degree from FIT in ocean engineering as "another science acceptable to the department", but did not accept the transcript as meeting the requirement of "30 semester hours of geological courses."

19. Petitioner Nicholson, who holds a bachelor's degree in ocean engineering and is seeking licensure as a professional geologist, opined that the courses listed in Finding of Fact 4 above are "geology courses." On the other hand Anthony F. Randazzo, chairman of the application committee of the Board of Professional Geologists, who holds three geology degrees and is chairman of the geology department at the University of Florida, opined that only four of those courses listed in finding 4 above are "geology courses."

    
    

20. Here Petitioner has the burden to prove, by a preponderance of the evidence, that he meets the requirement for licensure. Bolina v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner has failed to sustain this burden.

    
    

21. Petitioner rightly contends that Respondent should publish rules to define those courses acceptable to the department as geology courses. Here Respondent has been in operation for only one year and has prepared such a rule which, hopefully, will soon be published. These policies which may soon be ruled have evolved as the Respondent wrestled with Chapter 492 while licensing professional geologists. As stated by the court in McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977):

    
    

    . . . even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.

    
    

22. From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that he meets the educational requirement for licensure as a professional geologist.

RECOMMENDATION

It is recommended that the application of Andrew Minot Nicholson for licensure as a professional geologist under the grandfather provisions of Section 492.105(2)(c) Florida Statutes be denied.

DONE and ENTERED this 22nd day of December, 1989 in Tallahassee, Leon County, Florida.

K.N. AYERS 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 22nd day of December, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0282

Treatment accorded Petitioner's proposed findings.

Proposed findings submitted by Petitioner are accepted and are in general included in the findings submitted by the Hearing Officer except:

Petitioner's Exhibit 5. Reject last sentence. "Geological courses" was defined by Respondent's witness.

Petitioner's Exhibit 8. Rejected. Respondent looked at the curriculum and the professor's fields of expertise who taught the courses. From these two factors the department concluded the courses were not primarily geology courses, although all of the courses touched slightly on geology.

Treatment accorded Respondent' proposed findings. Proposed findings submitted by the Respondent are accepted.

COPIES FURNISHED:

Clark R. Jennings, Esquire Department of Legal Affairs Suite 1603, The Capitol Tallahassee, FL 32399-1050

Maxwell G. Battle, Jr., Esquire 1460 Beltrees Street

Suite A

Dunedin, FL 34698

Kenneth D. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Anna Polk Executive Director

Board of Professional Geologists

1940 North Monroe Street Tallahassee, FL 32399-0792

Docket for Case No: 89-000282

Orders for Case No: 89-000282