STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW NETUPSKY, )

)

Petitioner, )

vs. )

)

DEPARTMENT OF BUSINESS AND ) Case No. 00-2012 PROFESSIONAL REGULATION, FLORIDA )

ENGINEERS MANAGEMENT CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida, on September 7, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrew Netupsky, pro se

1275 West 75th Avenue Vancouver, British Columbia Canada V6P 3G4

For Respondent: Edwin A. Bayo, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner, Andrew Netupsky, should be granted licensure by endorsement as a professional engineer in Florida.

PRELIMINARY MATTERS

By letter dated December 20, 1999, Carrie Flynn, assistant executive director of the Florida Board of Professional Engineers, advised Petitioner herein, Andrew Netupsky, that his application for licensure by endorsement had been disapproved. On January 18, 2000, Petitioner requested formal hearing on the denial and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Dr. L. T. Russell, a professional engineer and an expert in the process of licensing engineers and the examination process for professional engineers in Canada.

Petitioner also introduced Petitioner's Exhibits A through D. Respondent called Petitioner as a witness and presented the testimony of Dr. Melvin W. Anderson, a professional engineer. Respondent also introduced Respondent's Exhibit 1. The undersigned officially recognized Section 471.015, Florida Statutes, and Rule 61G15-21, Florida Administrative Code.

No transcript of the proceedings was furnished. Subsequent to the hearing, both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times, pertinent to the issues herein, Respondent, Florida Engineers Management Corporation (FEMC), was the state agency responsible for the licensing of professional

   engineers and for the regulation of the engineering profession in Florida. Petitioner, Andrew Netupsky, is a professional engineer licensed in the Province of British Columbia, Canada. He graduated from the University of British Columbia in 1971 with a Bachelor of Applied Science in Civil Engineering and was licensed as a Registered Professional Engineer (Structural) in British Columbia in 1973. He was subsequently licensed by endorsement as a Registered Professional Engineer (Structural) in Arizona in 1987. The State of Arizona accepted Petitioner's scholastic examinations as a valid basis for licensure. The State of Florida does not.

2. Petitioner's engineering education in Canada was accredited by the Canadian Counsel of Professional Engineers (CCPE). The accrediting body within the United States is the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology (EAC/ABET). By virtue of a mutual agreement between the accrediting bodies in the United States and Canada, Petitioner's Canadian schooling and accreditation is deemed equivalent to an EAC/ABET accredited engineering program. Accreditation and schooling are not at issue in this proceeding.

3. Sometime before November 15, 1999, Petitioner applied to the Florida Board of Professional Engineers (Board) for licensure by endorsement as a professional engineer in Florida. By letter dated November 22, 1999, the Board notified Petitioner that his application had been deemed administratively complete and that it

   would be presented for review to the Board's Application Review Committee (Committee) on December 7, 1999.

4. Though the educational programs in Canada and Florida are similar, the methods and requirements for licensure are not. In Canada, a successful graduate of an engineering program does not take a subsequent comprehensive examination as a condition of licensure. Canadian engineering graduates are permitted to practice upon graduation from an engineering course of study. After the graduate has obtained four years of acceptable engineering experience, he or she takes a Principles and Practices examination which is, in effect, an examination on the laws and rules of practice. The subject matter examinations taken by the candidate while in engineering school serve as the required technical examination.

5. In Florida, candidates for licensure as a Professional Engineer take two examinations in addition to the course material examinations given in engineering school. One of these is the Fundamentals examination, also known as the Engineer In Training/EIT examination. It is an examination of the candidate's broad knowledge of mathematics, general sciences, and engineering sciences. This examination is generally taken shortly before or upon graduation from a baccalaureate program in engineering school. Upon successful practice of that examination, and upon four years of acceptable engineering experience, the candidate may sit for the Principles and Practice

   examination, also known as the Professional Engineer or PE examination. This latter examination tests the candidate's knowledge in a specific discipline. Both the Fundamentals examination and the Principles and Practice examination are prepared and provided to the states by the National Council of Examiners for Engineers and Surveyors (NCEES).

6. Petitioner took the examinations required for each of the mathematics, general science, and engineering courses required by his course of study as an engineering student in Canada, a total of 25 separate course examinations. In 1973 he also took the Professional Practice examination administered by the Association of Professional Engineers and Geo-scientists of British Columbia (APEGBC). At no time did he take either examination prepared by NCEES.

7. Petitioner contends the course examinations he took in engineering school and the Professional Practice examination he took after graduation are equivalent to the NCEES examination process administered to candidates for licensing as professional engineers in Florida, and that he should be licensed by endorsement as a professional engineer in this state.

8. In support of Petitioner's contention, he presented the testimony of Dr. Leslie Tremaine Russell, of Halifax, Nova Scotia, a mechanical engineer in practice since 1955, and past chairman of the Canadian Council of Professional Engineers (CCPE) and the Canadian Engineering Accreditation Board (CEAB).

   Dr. Russell has worked as a design engineer and has served as a university professor of engineering, being designated as Professor Emeritus for the past nine years. He has reviewed the engineering education programs in all Canadian provinces except Nova Scotia, Quebec, and Saskatchewan, and works in harmony with the ABET, the American equivalent to the CEAB to ensure that the engineering education programs in the two countries are as similar as is possible.

9. As in the United States, the CCPE gains all its powers from the various provincial licensing bodies. All provinces require graduation from an accredited engineering program, and accreditation of the programs is done at the request of the university presenting the program. All students who seek to graduate from an accredited engineering program in Canada must meet all requirements of the accrediting board. Before a candidate may be licensed as an engineer in Canada, he or she must both be a graduate of an accredited engineering program and have four years' experience in the practice of engineering.

10. The CEAB monitors engineering programs at all Canadian engineering schools to ensure that the programs are adequate to guarantee uniformity and safety. If so, the graduates are not required to take other comprehensive examinations. The engineering department at the University of British Columbia has been accredited since 1965. While the Canadian and United States

    programs are similar, Dr. Russell concedes that similar is not identical.

11. An international agreement forged under the North American Free Trade Act in 1995, and applying to engineering education and licensing in Canada, the United States, and Mexico, calls for reciprocal accreditation of individuals with a four- year degree from an accredited institution and eight years of satisfactory experience. This agreement was signed by NCEES, ABET, and NSPE in the United States, but it requires ratification by the individual licensing bodies in order to become effective. The agreement has been ratified by all provinces in Canada, but only by Texas in the United States.

12. Dr. Russell, in his many years of experience, has taken both eight-hour examinations, such as the NCEES examinations, and shorter ones as well. He is not convinced that the NCEES examinations, being made up of true/false and multiple choice questions, are particularly reflective of a candidate's actual knowledge. They are somewhat superficial. On the other hand, a university examination requires a full issue analysis.

13. Dr. Russell is comfortable with the conclusions that the Canadian university subject examinations, which Petitioner took while in engineering school, are the equivalent of the NCEES examination on the same subject matter.

14. Dr. Melvin W. Anderson, currently Dean of the College of Engineering at the University of South Florida, also reviewed

    the examinations presented by Petitioner and agreed that many had questions that were typical of the questions asked on final examinations in university engineering courses. However, some of those courses claimed by Petitioner to be fundamentals of engineering courses, such as those in English, Russian, Surveying, and Biology, have little to do with engineering science and are not subjects covered by the NCEES Fundamentals examination. Dr. Anderson also opined that the university examinations taken by Petitioner cannot be considered equal to the NCEES examinations.

15. Further, according to Dr. Anderson, the NCEES examinations are developed by a panel of experts and administered nation-wide by state licensing bodies. The Fundamentals portion of the examination is taken by university seniors or graduates and deal with engineering and fundamental science and mathematics. The Principles and Practice examination is administered after four years of practice and deals with problem solving.

16. Scores on the NCEES examinations are based on national assessment by practicing engineers who establish a cut score which is based on the assessed difficulty of the examination. The cut score is then equated to a passing score. When the examination is taken, it is "blind graded" which avoids any potential for the grader to be influenced by knowledge of the examinee.

17. While the quality of engineering education in Canada has been shown to be the equivalent of that in the United States, and while the licensing process in Canada has been shown to be comprehensive and effective, the differences in the systems, in particularity the requirement for a comprehensive examination as required in the United States, render the systems different and not equivalent.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

19. The requirements for licensure as a professional engineer in Florida are set out in Section 471.015(3), Florida Statutes, which mandates the Board to certify as qualified for licensure by endorsement an applicant who:

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

       
       

    2. Holds a valid license to practice engineering issued by another state or territory of the United States, if the criteria for issuance of the license were substantially the same as the licensure criteria that existed in this state at the time the license was issued.

20. Petitioner carries the burden to establish by a preponderance of the evidence his qualifications for licensure by endorsement as a professional engineer.

21. Florida courts as late as 1999 have defined the term "substantially equivalent" as "that which is equal in essential and material element." Eason v. Department of Professional Regulation, 732 So. 2d 1136 (5th DCA 1999). The Florida Third District Court of Appeal, in Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250 (3rd DCA 1999), affirmed denial of licensure by endorsement to an engineering graduate from Ecuador where the graduate failed to show evidence of the training criteria or the scores necessary to pass the Ecuadorian national examination. In the instant case, Mr. Netupsky did not present sufficient evidence to establish that his engineering school examinations, and the Principles and Practice examination he took were substantially equivalent to the requirements of the State of Florida.

22. The evidence is clear that Mr. Netupsky attended and successfully completed the course of study for an engineering degree in Canada; that he subsequently successfully passed British Columbia's Principles and Practice examination, that he was licensed as a professional engineer in British Columbia; and that he has, for a significant number of years, successfully practiced as a professional engineer in Canada.

23. However, this case does not determine the quality of an engineering education in Canada, nor the effectiveness of Canada's licensing procedure. The issue for consideration here is whether the two licensing systems, that followed in Canada and that followed in Florida, are substantially equivalent. It has been found they are not. Because of that fact, Petitioner also cannot rely on the issuance of the license as a professional engineer in Arizona as a basis for authorization of a license by endorsement in Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order denying Petitioner's application for licensure by endorsement as a professional engineer in Florida.

DONE AND ENTERED this 4th day of October, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2000.

COPIES FURNISHED:

Andrew Netupsky

1275 West 75th Avenue Vancouver, British Columbia Canada V6P 3G4

Edwin A. Bayo, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level-01

Tallahassee, Florida 32399-1050

Dennis Barton, Executive Director Board of Professional Engineers

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Esquire

Florida Engineers Management Corporation 1208 Hays Street

Tallahassee, Florida 32802-1900

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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.

Docket for Case No: 00-002012

Orders for Case No: 00-002012