STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER C. EVANS, )

)

)

)

Petitioner, )

)

vs. ) CASE No. 91-1580

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PROFESSIONAL ) ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above styled case on July 2, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Weldon Earl Brennan, Esquire

SHEAR NEWMAN HAHN

& ROSENKRANZ, P.A.

201 E. Kennedy Boulevard, Ste. 1000 Post Office Box 2378

Tampa, Florida 33601

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's application for licensure by examination as an engineering intern should be granted.

PRELIMINARY STATEMENT

In an Election of Rights Form dated October 12, 1990, the Petitioner, Roger

1. Evans (Evans), requested a formal administrative hearing to contest the denial of his application for entrance into the Fundamentals Examination administered by the Department of Professional Regulation (the Department) for the Board of Professional Engineers (the Board). Essentially, Petitioner Evans disputes the determination made by the Department that the award of his Bachelor of Science Degree in Engineering (Option in General) from the University of South Florida prevents his admission to the examination because it was not

   awarded directly from an engineering program within the college which has been accredited by the Accreditation Board for Engineering and Technology.

   
   

   The Department received the request for a hearing on October 22, 1990. The case was referred to the Division of Administrative Hearings on March 12, 1991, and was scheduled for hearing.

   
   

   During the hearing, Petitioner Evans presented one witness and testified in his own behalf. Petitioner's Exhibits 1, 2, 3, 4, 6, 7 and 8 were admitted into evidence. The Department called two witnesses and filed a composite exhibit, which was admitted into evidence. Posthearing exhibits filed by Petitioner were admitted on June 21, 1991 as Petitioner's Composite Exhibit A.

   
   

   The transcript of the hearing was filed July 16, 1991. Proposed recommended orders were received July 25, 1991. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Prior to his admission to the Mechanical Engineering Program at the University of South Florida on August 30, 1982, Petitioner Evans attended a three-year full-time Mechanical Engineering Diploma Program at the College of Arts, Science and Technology in Kingston, Jamaica. Upon completion of the program, Petitioner was awarded the College Mechanical Engineering Diploma.

      
      

   2. The diploma from the College of Arts, Science and Technology was conferred in an educational system based upon the English System of Education. The diploma was not a university degree, such as a Bachelor of Science. It is more akin to a certificate from a specialized training program. Such diplomas are often called Associate Degrees when they are issued by junior colleges in the United States.

      
      

   3. 750 credit hours were transferred from the College of Arts, Science and Technology and were applied to the lower level requirements for the Mechanical Engineering Program when Petitioner was enrolled at the University of South Florida. As with all transfers from other schools of higher education, Petitioner was not given credit for those courses in the grade point average (GPA) he was required to achieve at the university.

      
      

   4. Throughout his enrollment at the university prior to the actual award of his Bachelor of Science (BS) degree, Petitioner Evans was in the Mechanical Engineering Program.

      
      

   5. During the thirteen terms the Petitioner attended the university before he was awarded his BS degree, he repeated the following engineering department courses: EGN 3313 STATICS (3 times); EML 4503 MACH AN & DES 2 (2 times); ENG 4314 AUTO CONTROLS I (3 times) and EML 4106 C THERM SYS & ECO (4 times). Petitioner ultimately achieved a "A" in EGN 3313 STATICS; a "C" in EML 4503 MACH AN & DES 2, as well as ENG 4314 AUTO CONTROLS I. His final grade in the coursework for EML 4106 C THERM SYS & ECO was a "B".

      
      

   6. At all times while Petitioner was in attendance at the university, the Mechanical Engineering Department required students to have a GPA of 2.2 or better in a specific schedule of coursework before a Bachelor of Science in Mechanical Engineering (BSME) degree would be awarded by the faculty of the Department. The curriculum for the Mechanical Engineering Program at the University of South Florida was accredited by the Accreditation Board for

      Engineering and Technology (ABET) based upon the program requirement that a degree in mechanical engineering would be conferred only on students with a 2.2 or better GPA.

      
      

   7. The fall term of August 24, 1987 - December 12, 1987, was designated as Petitioner's final term of his senior year as an undergraduate seeking a BSME degree. Although the means used by the Mechanical Engineering faculty to calculate a GPA during this particular time period was unavailable, there is no dispute that the faculty applied its policy and determined that a BSME could not be awarded to Petitioner because he did not meet the academic standard of 2.2 or better GPA in the scheduled courses. Due to the averaging required to arrive at a GPA, Petitioner's repetition of so many courses lowered his overall GPA even though he successfully completed each course on his final attempt.

      
      

   8. When Petitioner was personally informed of the faculty's decision by his assigned faculty adviser, he questioned whether he could retake some of the courses to bring his GPA status up to the level demanded by the faculty. This idea was discouraged by his adviser because Petitioner would have to repeat a large number of courses over a lengthy period of time. The averaging techniques used to compute a GPA makes such an endeavor very time consuming with small results for the effort spent. Based upon the advice he received, Petitioner acquiesced in the faculty's decision to award him a B.S. in Engineering-Option in General and accepted the degree.

      
      

   9. At the close of his undergraduate academic pursuits, Petitioner had an overall GPA of 2.082 and a GPA in departmental course work of 1.79. This departmental GPA was calculated by eliminating 3 "Fs" from his transcript, per the university's forgiveness policy. All other course repeats lowered his overall GPA and his departmental GPA.

      
      

   10. In spite of the overall GPA and departmental GPA determination, Petitioner did take and successfully passed every course within the curriculum of the Mechanical Engineering Program at the University of South Florida.

       
       

   11. The B.S. degree awarded to Petitioner is an alternate degree within the university. It is designed for students who have either completed a specialized program but were unable to meet a faculty's higher GPA standard or for those students who never designated a specialty within the engineering school, but met general university degree requirements. This program has never been accredited by ABET.

       
       

   12. ABET relied upon the faculty's representation that students who received BSME degrees would obtain a 2.2 or better GPA in the program before the degree was awarded when accreditation was granted by the board. It is unknown as to whether the program would have been approved if a lower success standard had been set for the students.

       
       

   13. On July 9, 1990, Petitioner's application for the Fundamentals Examination was received by the Department. The application was rejected on September 24, 1990, because the Department determined Petitioner did not meet the statutory and rule provisions governing admissions to the examination.

       
       

   14. From August 27,, 1984 - December 11, 1987, Petitioner was in the final year of an approved engineering curriculum in a university approved by the Board. He successfully completed the courses in the curriculum, but his GPA in the program was lowered by his numerous repetitions of the same courses before successful completion occurred.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

       
       

   16. Chapter 471, Florida Statutes, regulates the practice of engineering in this state. As part of the qualifications for practice, an applicant must pass the licensing examination. Entitlement to take the examination is governed by rules established by the Board of Engineers. The authority to adopt the rules relating to the prerequisite qualifications was delegated to the Board in Section 471.013, Florida Statutes, which states:

       
       

       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.

       
       

   17. Section 471.013(1)(b), Florida Statutes, sets forth the prerequisites an applicant must complete before he is admitted to the Florida examination for engineer intern. The law provides, as follow, in pertinent part:

       
       

       (1)(b) 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 intern if he is in the

       final year of, or is a graduate of an approved engineering curriculum in a school, college, or university approved by the board.

       
       

   18. The Board has duly promulgated rules which further define the educational requirements that enable an applicant to gain admission into the examination based upon a baccalaureate degree. These requirements are generally described in Rule 21H-20.001(1)(b), Florida Administrative Code, which reads:

       
       

       1. As used hereinafter in this chapter the following words and phrases shall be defined as follows:

          * * *

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

          1. engineering curricula accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc. (ABET), approved by ABET, approved by the Board of Professional Engineers as equivalent to ABET, or

          2. non-ABET-approved engineering programs

             for a post-baccalaureate degree in engineering from a school or college in the United States

             which has an accredited engineering curriculum in a related discipline at the baccalaureate level, or

          3. programs which have been approved by the Board of Professional Engineers under the provisions of F.S. 455.11(3).

          
          

   19. An alternate evaluation program exists wherein the Board can review an applicant's transcript and degree program in order to determine whether the applicant should be admitted to the examination. This evaluation process is contained in Rule 21H-20.006, Florida Administrative Code. However, this rule applies only to an applicant who did not attend a school or college of engineering where ABET accreditation is available. Specifically, the rule provides:

       
       

       This rule shall not apply to board approved engineering programs or where ABET accreditation is available to a school or college of engineering.

       
       

   20. Under the facts of this case, the Mechanical Engineering Program at the University of South Florida is an ABET approved program based upon the university's representation that graduates have a 2.2 GPA in the course of studies. Without that GPA at this particular university, there is no showing that an applicant meets a sufficiently high standard of academic achievement which is required by the Board as a prerequisite to admission to the examination. While there are exceptions to the ABET approval requirements, Rule 21H-20.006(2), Florida Administrative Code, does not allow exceptions to be made where ABET accreditation is available to a school or college of engineering. Such accreditation is available to the University of South Florida. As a result, Petitioner cannot be admitted to the examination.

       
       

   21. Agency rules, duly promulgated under the authority of law, have the effect of law. State v. Jenkins, 469 So.2d 733 (Fla. 1959). An agency's interpretation of its own rules or operable statutes is entitled to great deference. Reedy Creek Imp. v. State Dept. of Envir. Reg., 486 So.2d 642 (Fla. 1st DCA 1986). In addition, the Department's interpretation comports with the plain meaning of the rule. There is competent substantial evidence that Petitioner's application for entrance to the examination does not meet the rule requirements for admission. He is not a graduate of an approved engineering curriculum because the general BS in Engineering from the University of South Florida has never been accredited by ABET and the Mechanical Engineering Program has an ABET approval that is based upon a demonstration of proficiency in the subject matter indicated by a 2.2 or better GPA. Without the required GPA at the University of South Florida, College of Engineering, the Board does not have the assurances regarding qualifications it requires from an applicant prior to the exam admission.

       
       

   22. Whether the rules are invalid is a determination that is beyond the subject matter jurisdiction of the Hearing Officer in a formal hearing under Section 120.57, Florida Statutes. An administrative determination of a rule can only be made by a hearing officer when a petition seeking an administrative determination is filed pursuant to the provisions of Section 120.56, Florida Statutes, and the hearing is conducted under the statutory requirements. Meanwhile, permissible interpretations of the rules by the agency must and will be sustained, "even though other interpretations are possible and may even seem

preferable according to some views." Retail Grocers Ass'n v. Dept. of Labor, 474 So.2d 379 (Fla. 1st DCA 1985).

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

Petitioner's application to take the examination administered by the Department for the Board be denied.

DONE and ENTERED this 20th day of August, 1991, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 20th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows: Pages 1-2: Accepted. See Preliminary Statement

Issue I-Page 3: Paragraph one. Accepted. See HO #11.

Paragraph two. Accepted. See HO #7. Paragraph three. Accepted. See HO #3.

Paragraph four. Accepted. See HO #8. Paragraph five. Accepted. See HO #4, #10, #11 and #12.

Paragraph six. Accepted.

Paragraph seven. Accepted. See HO #15.

Paragraph eight. Accepted. See HO #12.

Paragraph nine. Accepted. Paragraph ten. Accepted.

Paragraph ten. Rejected. Cumulative.

Issue II-Page 7: Paragraph one. Accepted. See HO #13. Issue III-Page 8:Paragraph one. Accepted.

Paragraph two. Rejected. Cumulative. Paragraph three. Accepted.

Paragraph four. Rejected. Mixed Question of Law and Fact. Witness Incompetent to determine.

Paragraph five. Rejected. Cumulative.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #14.

2. Accepted. See HO #14.

3. Accepted. See HO #1.

4. Accepted. See HO #3 and #4.

5. Accepted. See HO #13.

6. Accepted. See HO #12 and #13.

7. Accepted. See HO #8 and #13.

8. Rejected. Contrary to fact. See HO #5.

9. Accepted. See HO #11.

10. Rejected. Irrelevant.

11. Accepted.

12. Accepted. See HO #10.

13. Rejected. Insufficient facts presented. See HO #8.

14. Accepted. See HO #6.

15. Accepted.

16. Rejected. Irrelevant.

17. Rejected. Irrelevant.

18. Rejected. Improper legal conclusion.

19. Rejected. Contrary to fact. See HO #12.

COPIES FURNISHED:

Weldon Earl Brennan, Esquire

SHEAR NEWMAN HAHN & ROSENKRANZ, P.A.

201 E. Kennedy Boulevard, Suite 1000 Post Office Box 2378

Tampa, Florida 33601

Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050

Carrie Flynn, Executive Director Jack McRay, General Counsel Florida Board of Professional Department of Professional

Engineers Regulation

Northwood Centre, Suite 60 Northwood Centre, Suite 60 1940 North Monroe Street 1940 North Monroe Street Tallahassee, Florida 32399-0755 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: 91-001580

Orders for Case No: 91-001580