STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARDO A. MARQUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5778

)

BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 28, 1990, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Gerardo A. Marquez (pro se)

Reef Tower Apartment 16B Isla Verde, Puerto Rico

For Respondent: Edwin A. Bayo, Esquire

Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to be licensed by endorsement as a professional engineer in the State of Florida, pursuant to Section 471.015, Florida Statutes (1989).

PRELIMINARY STATEMENT

By letter, dated May 30, 1990, the Board of Professional Engineers denied Petitioner's application for licensure by endorsement as an engineer in Florida. On June 15, 1990, Petitioner executed an Election of Rights seeking a formal hearing to dispute the allegations of fact contained in the license denial letter. This matter was referred to the Division of Administrative Hearings on September 10,1990. This hearing followed.

At the hearing, Petitioner testified in his own behalf and offered four exhibits which were received in evidence. Respondent presented the testimony of Robert Kersten, Ph.D., P.E. as an expert witness and two exhibits were admitted in evidence. The transcript was filed on January 7, 1991. The Petitioner did not file proposed findings of fact as of the filing of this order. Respondent

filed its proposed findings of fact and conclusions of law on January 7, 1991. The proposals have been given careful consideration and incorporated by reference where supported by the greater weight of the evidence. My specific rulings as provided by Section 120.57(1)(b)9., Florida Statutes (1989) is included in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner Gerardo A. Marquez is an applicant for licensure by endorsement as a professional engineer.

   
   

2. By letter dated May 30, 1990, Petitioner was informed by the Board that his education did not meet the criteria for licensure by examination under Section 471.013(1)(a)1, Florida Statutes, because the engineering program he completed was not accredited by the Accrediation Board for Engineering and Technology (ABET).

   
   

3. Petitioner is a graduate of the Polytechnic University of Puerto Rico, with a degree in civil engineering. This program is not accredited by ABET.

   
   

4. Section 471.013(1)(a)2, Florida Statutes, provides that graduates of an approved engineering technology curriculum of four years or more in a school, college or university within the state university system, having been enrolled or having graduated prior to July 1, 1979, shall be entitled to take an examination to determine if he is qualified to practice as an engineer. Petitioner does not qualify pursuant to this provision.

   
   

5. Petitioner was enrolled for one semester in 1977 at the University of Puerto Rico in the engineering program. This first semester consisted of basic general studies such as humanities, English, biology and math. Petitioner resumed his college education in the summer of 1980 at the Polytechnic University of Puerto Rico.

   
   

6. Petitioner testified that the criteria for licensure in Puerto Rico was "substantially identical" to the criteria in Florida at the time of his licensure since Puerto Rico requires that the University granting the degree be approved by the Middle States Association of Colleges as well as the Commission of Higher Education of Puerto Rico.

   
   

7. ABET is the sole agency in the United States to accredit engineering programs. ABET does not accredit schools, but only specific programs.

   
   

8. Since 1981 when Chapter 471 underwent sunset review, Florida has required an ABET approved degree, and the Board has considered that any state that has the same experience and examination requirements as Florida, but does not require an ABET approved engineering degree, is not substantially equivalent to Florida under the statute.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

10. Section 471.015(3), Florida Statutes, provides in pertinent part:

    
    

    The board shall certify as qualified for a license by endorsement an applicant who:

    1. Qualifies to take the examination as set forth in s. 471.013, has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 471.013, and has satisfied the experience requirements set forth in s. 471.013; or

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

       
       

11. 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).

    
    

12. Petitioner does not meet the criteria of Section 471.015(3)(a) because he would not be eligible for examination in Florida. Section 471.013(1)(a) provides as follows:

    
    

    A person shall be entitled to take an exami- nation 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. A graduate from an approved engineering curriculum of 4 years or more in a school, college, or university which has been approved by the board and has a record of 4 years of active engineering experience of a character indicating competence to be in responsible charge of engineering;

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

    3. Has, in lieu of such education and experi- ence requirements, 10 years or more of active engineering work of a character indicating that the applicant is competent to be placed in responsible charge of engineering. However, this subparagraph does not apply unless such person notifies the department before July 1, 1984, that he was engaged in such work on

    July 1, 1981.

    The board shall adopt rules providing for the review and approval of schools or colleges and the courses of study in engineering in such schools and colleges. The rules shall be based on the educational requirements for engineering as defined in s. 471.005. The board may adopt rules providing for the acceptance of the approval and accreditation of schools and courses of study by a nationally accepted accreditation organization.

    
    

13. Pursuant to its delegated authority, the Board has promulgated Rule 21H-20.001(1)(b), Florida Administrative Code, which in pertinent part states:

    
    

    (b) "Board approved engineering programs" shall mean:

    1. engineering curricula accredited by the Accreditation Board for Engineering and Tech- nology, Inc. (ABET), approved by ABET, approved by the Board of Professional Engi- neers as equivalent to ABET, or . . . .

    
    

14. Although Petitioner holds a valid license to practice engineering issued by the Commonwealth of Puerto Rico, it must be concluded, as a matter of law, that the criteria for issuance of such license was not substantially identical to the criteria which existed in Florida at the time Petitioner was licensed. Puerto Rico does not require graduation from an ABET approved engineering program. The requirement of an approved engineering education is a major, substantial part of Florida's requirement for licensure.

    
    

15. Finally, Petitioner cannot be deemed to come under the provisions of Section 471.013(1)(a)2, Florida Statutes. Petitioner has not demonstrated that he was enrolled in an approved engineering technology curriculum prior to July 1, 1979, or at any time.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered denying Petitioner's application for licensure by endorsement under Section 471.015, Florida Statutes.

RECOMMENDED this 14th day of January, 1991, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 14th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5778

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1 - 8.

COPIES FURNISHED:

Edwin A. Bayo, Esquire Assistant Attorney General Suite LL04, The Capitol Tallahassee, FL 32399-1050

Gerardo A. Marquez

Reef Tower Apartment 16B

Isla Verde, Puerto Rico 00913

Rex Smith

Board of Professional Engineers Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Kenneth Easley General Counsel Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 90-005778

Orders for Case No: 90-005778