Upon due notice, a disputed-fact hearing was held in this case on April 10, 2008, in Gainesville, Florida, before
Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Thomas P. Norris, pro se
For Respondent: Michael T. Flurry, Esquire
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Whether Petitioner meets the requirements of Section 471.015(3), Florida Statutes (2007), for licensure as a professional engineer by endorsement.
In 2007, Petitioner applied for licensure as a professional engineer in the State of Florida by endorsement. On January 14, 2008, Respondent, Board of Professional Engineers, served its Notice of Denial of Petitioner's application. Petitioner timely requested a disputed-fact hearing, and on or about February 13, 2008, the cause was referred to the Division of Administrative Hearings.
A Notice of Hearing for April 10, 2008, together with an Order of Pre-hearing Instructions, was entered on February 20, 2008.
At hearing, Petitioner testified on his own behalf.
Exhibits P-1, P-2, P-3, P-4, P-5, P-6, and P-7 were admitted in evidence.1/ Respondent had one composite exhibit (R-1) admitted in evidence. By stipulation, Petitioner was permitted to after- file Exhibit P-8,2/ and Respondent was permitted to after-file Joint Exhibit A,3/ each within 10 days of hearing. These exhibits were, in fact, timely filed.
A Transcript was filed in due course, and each party timely filed their respective Proposed Recommended Orders on May 9,
2008.
the writing of this Recommended Order, but parts (including fact stipulations) have been modified as to order, tense, and
grammar; for consistency; to conform to the after-filed exhibits;4/ and for clarity.
Petitioner attended Old Dominion University, Norfolk, Virginia, from fall of 1983, to May 16, 1987. He graduated May 16, 1987, with a Bachelor of Science Degree in Engineering Technology, with a major in Mechanical Engineering Technology.
There is no affirmative evidence that Old Dominion University's curriculum demonstrates a deficient level of competence necessary to practice engineering in the State of Florida in the capacity of a Professional Engineer to protect public health and safety.
There is no affirmative evidence of conditions unique to the State of Florida that warrant a level of competence beyond that demonstrated by Petitioner's Degree in Engineering Technology.
Petitioner passed the National Council of Examiners for Engineering and Surveying Examination Part I (NCEES) Fundamentals of Engineering examination on April 11, 1987.
Petitioner passed the NCEES Principles and Practices examination on October 27, 1995.
Petitioner received a professional engineering license to practice in the Commonwealth (State) of Virginia on
January 30, 1996.
Petitioner received a professional engineering license to practice in the State of Alabama on May 30, 2003.
Petitioner received a professional engineering license to practice in the State of Texas in 2005.
Petitioner received a professional engineering license to practice in the State of Wisconsin in 2005.
Petitioner applied for a Florida professional engineering license by endorsement on July 12, 2007.
Petitioner has over four years' active engineering experience, meeting the requirements set forth in Section 471.013(1)(a), Florida Statutes.
There is no evidence that the Florida Board of Professional Engineers requested supplemental information beyond that required by the Respondent's Application for Licensure by Endorsement, but Petitioner had every opportunity to present evidence in the present de novo proceeding.
The Notice of Denial issued by the Florida Board of Professional Engineers on January 14, 2008, reads, in pertinent part:
The Applicant does not satisfy the Education requirements of Chapter [sic]
471.015 that incorporates by reference Chapter [sic] 471.013 Florida Statutes.
Your application failed to meet requirements of Section 471.013 (1) (a) F.S. Under this provision of the law, you must evidence a degree from an EAC/ABET accredited engineering program.
You hold a Bachelor of Science in Engineering Technology Degree from Old Dominion University, Norfolk, Virginia. The Applicant does not have a Board approved degree.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).
Chapters 455 and 471, Florida Statutes, regulate the licensure and practice of engineering in Florida, along with Florida Administrative Code Chapter 61G15.
The Florida Statutes quoted hereafter have been unchanged at all times material. The parties stipulated that the statutes from the other states wherein Petitioner has been licensed be submitted as an after-filed exhibit, and that they applied at all times material. The applicable regulations/rules from Virginia were not provided by either Petitioner or Respondent.
An applicant for licensure carries the ultimate burden of proof, by a preponderance of the evidence, pursuant to Section 120.57(1)(j), Florida Statutes, at each and every step of the licensure proceedings, until final agency action has been taken by the agency. Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1259 (Fla. 3rd DCA 1999);
Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). See also Astral
Liquors Inc., v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 432 So. 2d 93 (Fla. 3rd DCA 1983); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
Petitioner herein complains that the Board failed in a statutory obligation to require and evaluate more than a single criterion for licensure in each of the four states that issued him an engineering license, in relationship to the multiple statutory criteria of the State of Florida; failed to meet the intent of Section 471.013,5/ by not securing appropriate documentation from Old Dominion University, which had issued his Bachelor of Science in Engineering Technology degree, so as to adopt rules for acceptance of a school or courses6/ and to determine if the criteria for Petitioner's out-of-state licenses were substantially the same as the licensure criteria existing in Florida at the time the other respective state licenses were issued.
Every attempt has been made to address all of Petitioner's concerns, either in the body of this Recommended Order or in an endnote, but due to the agreement of the parties
to submit other States' statutes and the de novo nature of this proceeding; the burden of proof herein; and the absence of any rule challenge, Petitioner's concerns not addressed herein are deemed irrelevant.
At all times material, Florida has provided two ways to obtain an engineering license by endorsement. Section 471.015, Florida Statutes, provides:
The board shall certify as qualified for licensure by endorsement an applicant who:
Qualifies to take the fundamentals examination and the principles and practice examination as set forth in s. 471.013, has passed a United States national, regional, state, or territorial licensing examination that is substantially equivalent to the fundamentals examination and principles and practice examination required by s. 471.013, and has satisfied the experience requirements set forth in s. 471.013; OR
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. (Emphasis by capitalization and underlining supplied.)
Subsection 471.015 (3)(a), Florida Statutes, incorporates, by reference, the requirements set forth in Subsection 471.013 (1)(a), Florida Statutes, for applicants to meet in order to be licensed by endorsement:
(1)(a) A person shall be entitled to take an examination for the purpose of determining whether she or he is qualified to practice in this state as an engineer if the person is of good moral character and:
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;
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 indicating competence to be in responsible charge of engineering; OR
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. However, this subparagraph does not apply unless such person notifies the department before July 1, 1984, that she or 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. (Emphasis by capitalization and underlining has been supplied.)
At least since February 3, 2005, Florida Administrative Code Rule 61G15-21.001 has provided:
The Florida Board of Engineers hereby determines that a written examination shall be given and passed prior to any applicant receiving a license to practice as a professional engineer, or as an engineer intern in the State of Florida except as provided in Section 471.015, F.S. The examination shall be provided by the National Council of Examiners for Engineers and Surveyors (NCEES). The examination consists of two parts, each of eight hours. The engineer intern examination is defined to be Part One of the written examination provided by the NCEES. . . .
Applicants for licensure by examination must be graduates of a Board-approved engineering program as defined in Rule
61G15-20.001, F.A.C. Acceptance into the engineering intern examination, either in Florida or elsewhere, does not indicate automatic acceptance for the professional engineers examination, nor does it exempt said applicant from meeting the criteria set forth in Chapter 471, F.S. and Chapter 61G15, F.A.C. (Emphasis by underlining supplied.)
At least as early as April 9, 2007, Florida Administrative Code Rule 61G15-20.001 provided, in pertinent part:
As used hereinafter in this chapter the following words or phrases shall be defined as follows:
* * *
'Board approved engineering programs' shall mean:
Engineering programs accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and
Technology, Inc. (EAC/ABET). (Emphasis supplied.)
To reiterate some of the parties' stipulations in the legal context of conclusions of law, it is concluded that: The parties have stipulated that Section 471.015(3)(b) is a "stand- alone" basis to certify that the Petitioner is qualified for licensure by endorsement; that Section 471.015(2), which references educational requirements of Section 471.015(3) does not pertain to licensure by endorsement and has no relationship with any other basis; and that Section 471.015(3)(a), which does reference educational requirements of Section 471.013, and does pertain to licensure by endorsement, is unrelated to Section 471.015(3)(b).
Herein, Respondent Board does not dispute that Petitioner has passed the national examination (the NCEES), recognized in Florida Administrative Code Rule 65G15-21.001, or that he has met the years of experience requirements for licensure by endorsement. Only the educational requirements are at issue.
Therefore, let us look at Section 471.013(1)(a) which provides that Petitioner must demonstrate EITHER graduation from "an approved engineering curriculum" of four years or more in an approved school, college or university, and four years of active engineering experience, OR he must demonstrate graduation from
"an approved engineering technology curriculum" of four years or more of a university within the State University System, enrolled or graduated before July 1, 1979, and four years active engineering experience, OR he must demonstrate 10 years of experience (without any college curriculum requirement), provided that the applicant without the college curriculum requirement notified the Board by July 1, 1984, that he was engaged in such engineering work on July 1, 1981.
This Petitioner has not demonstrated graduation from an engineering curriculum, i.e. a four-year engineering degree. Therefore, he does not meet the first series of necessary qualifications under Section 471.013(1)(a)1.
This Petitioner has not demonstrated graduation from an engineering technology curriculum, i.e. a four-year or more engineering technology degree, from "a university within the State University System having been enrolled or graduated prior to July 1, 1979." Therefore, he does not meet the second series of necessary qualifications under Section 471.013(1)(a)2.
This Petitioner did not demonstrate that he had 10 years of experience encompassing July 1, 1981, of which he notified the Board by July 1, 1984. Therefore, he does not meet the third series of necessary qualifications under Section 471.013(1)(a)3.
It is undisputed that Petitioner received a four-year engineering technology curriculum and has an engineering technology degree from Old Dominion University in Norfolk, Virginia, where he attended for four years, from fall 1983 through graduation, May 16, 1987. Respondent Board is apparently not disputing that Old Dominion has an engineering curriculum, which is EAC/ABET approved. However, based upon Petitioner's having an engineering technology degree, Section 471.013(1)(a)2. would be applicable, and Petitioner's degree fails to meet all the criteria listed in this statutory provision. Petitioner was not enrolled in, and had not graduated from, such a program prior to July 1, 1979. Further, Petitioner's engineering technology degree is not an engineering technology degree from a curriculum in the State University System of Florida; it is from Virginia.
The court in Rotunno v. Board of Professional Engineers, 946 So. 2d 51, 52 (Fla. 1st DCA 2006), held, as a matter of law, that the phrase, "the State University System" in Section 471.013(1)(a)2., Florida Statutes, is defined as the Florida State University System. Therefore, Petitioner's degree does not meet the education requirements in Section 471.013(1)(a)2., Florida Statutes, so it cannot meet the requirements of Section 471.013(1)(a), which are incorporated by reference into Section 471.015(3)(a).
The fact that Petitioner's degree is in engineering technology, and not in engineering, also means that he fails to meet the requirements of Section 471.015(3)(b), Florida Statutes. That subsection and paragraph provide:
The board shall certify as qualified for licensure by endorsement an applicant who:
* * *
(b) 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.
In other words, in order to qualify in Florida, under Section 471.015(3)(b), Petitioner had to show that the criteria for licensure in at least one of the other states where he holds licenses were "substantially the same" as in Florida at the time he was issued those out-of-state licenses, and he has not.
In Eason v. Department of Business and Professional Regulation, 732 So. 2d 1136, 1137 (Fla. 5th DCA 1999), there was testimony as to how the Board of Professional Engineers interpreted the term, "substantially the same" in Section 471.015(3), Florida Statutes, as that term related to the examination requirements for applicants by endorsement. We do not have similar expert evidence herein, but even in the absence of such testimony, the case may be relied upon. Therein, the
court affirmed the Administrative Law Judge's determination that the Board's interpretation of the term "substantially the same" to mean that to qualify, the out-of-state examination must be "equal to the Florida examination in all material respects" was not clearly erroneous and fell within the range of possible interpretations. Id. citing Board of Medical Examiners v.
Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984).
Applying Eason to the instant situation, the term "substantially the same" in Section 471.015(3)(b) means that Petitioner must show that the criteria for licensure in at least one of the states where he has previously been licensed were equal in all material respects to Florida's criteria for licensure at the time he received that out-of-state license.
Petitioner herein has characterized the Board as considering/comparing only a single criterion. He has perhaps misunderstood some of the language employed in the denial notice. As presented at hearing, this case involves Florida's statutory criteria for licensure relevant to educational criteria, which cannot be said to be immaterial. This case does not offer an issue of whether or not Old Dominion was, or was not, EAC/ABET qualified or whether the courses listed on Petitioner's transcript, showing he graduated with a "Bachelor of Science Degree in Engineering Technology, with a Major in Mechanical Engineering Technology," equate in some way to an
"engineering," rather than to an "engineering technology," curriculum/degree. Indeed, there is no expert evidence herein to make such an assessment, even if it were relevant. Nor is it necessary to compare Florida's requirement of four years of engineering experience to the number of post-graduate years Petitioner had to work in engineering for each other respective State's licensure by endorsement. If that were so, Florida, at four years, rather than six or eight years for some of the other States, clearly requires fewer years. This case also is not affected by whether or not Petitioner passed the NCEES. It was stipulated that he did. These concepts simply are not controlling herein.
The criteria for licensure in Florida are enumerated under Florida Statutes Section 471.013. See § 471.015(2) Fla. Stat. The language employed in Section 471.013(1)(a), including the restrictions on engineering technology degrees, was exactly the same at the time Petitioner received each of his licenses in Virginia, Alabama, Texas and Wisconsin, and Petitioner's engineering technology degree fails to meet the requirements of Section 471.013(1)(a), Florida Statutes. Thus, another state's licensure criteria that would accept Petitioner's engineering technology degree, which is excluded in Florida's statute, would vary in a material respect from Florida's licensing criteria, and therefore, those other states' licensing criteria would not
be "substantially the same" or "equal in all material respects" to Florida's criteria for licensure.
Moving on to a comparison, state-by-state, Petitioner holds an engineering license from the State of Alabama. The relevant provision of the Code of Alabama Section 34-11-4 at the time he received his license in Alabama, states in pertinent part:
(1) Professional Engineer. The following shall be considered as minimum evidence satisfactory to the board that the applicant is qualified for licensure as a professional engineer:
a. Graduation and experience plus examination.
* * *
3. Graduation in an approved engineering technology or related science curriculum plus eight years experience. -- Before December 31, 2005, and not thereafter, a graduate of an approved engineering technology curriculum of four years or more from a school or college approved by the board or a graduate of a related science curriculum . . . .
Alabama's statutory requirement is different in a material respect from Florida's provision, in that the Alabama statute continued to accept engineering technology degrees through 2005, whereas Florida did not accept any engineering technology degree unless its recipient had been enrolled in the engineering technology degree program as of July 1, 1979, at the latest. Further, under Alabama's statute, there are no restrictions on where the applicant received his or her
engineering technology degree, whereas Florida accepts engineering technology degrees only from "the Florida State University System," received in the relevant time frame, for which the proper timely notice was given. One of Petitioner's demonstrative exhibits even notes this difference. See § 471.013(1)(a)2 Fla. Stat.
Petitioner holds a Texas engineering license. The relevant portions of Texas' educational licensure provisions are as follows: Texas Occupational Code, Section 1001.302 (2005), provides, in pertinent part:
(a) An applicant for a license under this chapter must submit evidence satisfactory to the board showing at least that the applicant has:
graduated from:
* * *
(B) an engineering or related science curriculum at a recognized institution of higher education, other than a curriculum approved by the board under Paragraph (A).
Twenty-two Texas Administrative Code Section 133.31, defines the type of programs acceptable under Texas Occupational Code Subsection (B), as follows:
(a) Applicants for a license shall have graduated from at least one of the following degree programs or degree program combinations listed in this section:
* * *
Other programs under §1001.302(a)(1)(B) of the Act. The following degrees are acceptable to the board for meeting the educational requirements of
§1001.302(a)(1)(B) of the Act.
A bachelor degree from an engineering technology program that is accredited by the Technology Accreditation Commission of the Accreditation Board of Engineering and Technology (TAC/ABET) as published in the 2002 ABET Accreditation Yearbook or as published in the yearbook applicable to a previous year in which the applicant graduated;[7/]
* * *
It is a material difference between the two statutes that Texas' educational criteria as related to engineering technology degrees do not have any restrictions on where or when the degree was received, while Florida has the restriction to Florida institutions as stated supra.
Petitioner holds a Wisconsin license. Wisconsin does not license professional engineers on the basis of engineering technology degrees, so the analysis could end there with an unfavorable result for Petitioner. However, Wisconsin grants "registration" to an engineer without an engineering degree, based only on the requirement of having an acceptable amount of experience and passing the approved examination, as set forth in Subparagraphs 443.04(1)(b) and (c) (2005), Wisconsin Statutes, and Wisconsin Administrative Code A-E 4.05(2) and (3) (2004). Without affirmative evidence that Petitioner qualified in
Wisconsin this way, this criteria need not be examined.
However, assuming arguendo, but not ruling, that Petitioner did qualify in Wisconsin under this provision, then he would have to have shown the Wisconsin licensing authority that he was placed in responsible charge (under supervision of a professional engineer) and had eight years' experience, pursuant to Section 443.04(1)(b), Wisconsin Statutes. If he had 12 years of experience, pursuant to Section 443.04(1)(c), Wisconsin Statutes, he would not have had to be placed under responsible charge.
Even so, Section 471.013(1)(a)3., Florida Statutes, also contains a provision allowing for licensure through experience only. In order to invoke this provision of Florida law, an applicant would have had to notify the Board before July 1, 1984, that he or she was engaged in engineering work on July 1, 1981. Therefore, this Florida provision based on experience alone is not the same in every material respect as
Wisconsin's statute based on experience alone, wherein Wisconsin allows applicants currently to be licensed through experience only.
Petitioner received an engineering license in Virginia in 1996. Respondent Board after-filed an exhibit that provided the Virginia statute applicable at the time Petitioner received his Virginia license, but Virginia's equivalent of the Florida
Administrative Code applicable at that time was not provided by Respondent. Petitioner was notified of this, and Petitioner did not file the applicable Virginia regulations, either.
The Virginia statute presented merely gives Virginia's Board the authority to promulgate professional qualifications for applicants. See Virginia Code Annotated Section 54.1-404. It does not state what the professional qualifications are/were. Therefore, Petitioner has not sufficiently shown that Virginia's criteria for licensure were substantially the same as those in Florida at the same time he received his Virginia license. Moreover, because Petitioner was licensed in Virginia with an engineering technology degree which is not acceptable in Florida, Petitioner cannot prevail, anyway.
Petitioner's Proposed Recommended Order argues that the Florida Board had an obligation to search out all similarities of the other States' laws, and that because Respondent Board did not provide the Virginia regulations for comparison, Petitioner should prevail herein. This is fallacious reasoning based upon a misunderstanding of the burden of proof.8/ The burden is on Petitioner to demonstrate his eligibility for licensure. See Espinoza v. Department of Business and Professional Regulation, and all cases cited in Conclusion of Law 17, supra.
Based on the foregoing, Petitioner is not eligible for licensure by endorsement because he has an engineering technology degree not accepted under Section 471.015(3)(a), incorporating by reference Section 471.013(1)(a), Florida Statutes, and is not eligible under Section 471.015(3)(b), because the criteria for licensure in the states where he has licenses were not substantially the same as those of Florida at the time he received those licenses.
Petitioner's application for licensure by endorsement should be denied.
RECOMMENDED that the Florida Board of Professional Engineers enter a final order denying Petitioner's application for licensure as a professional engineer by endorsement.
DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2008.
1/ The Table of Contents of the Transcript is misleading, as is Petitioner's pre-numbering system, which for Exhibit P-6 is broken down into 06.1--06.8. Exhibits P-2, and P-3, were admitted at TR-38. Ultimately, the whole of Exhibit P-6, was admitted at TR-28 and at TR-38-41. Many of these exhibits are demonstrative and/or cumulative, rather than evidentiary.
2/ This exhibit clarifies that Petitioner was licensed in Alabama in 2003, not 1993, as per the parties' Joint Pre-hearing Stipulation.
3/ This composite after-filed exhibit, sometimes referred to as R-2 or RE-2, represents such other states' statutes and/or regulations (rules) as could be procured by Respondent and were stipulated as evidentiary by both parties. Respondent was not able to procure the Virginia regulations/rules for the appropriate time frame. See Conclusions of Law.
4/ For instance, the parties stipulated that Petitioner's Alabama P.E. license was issued in 1993, when, in fact, it had been issued in 2003.
5/ Petitioner specifically refers to an "unnumbered first paragraph," of Section 471.013, which he did not quote, but see all Conclusions of Law, particularly Conclusion of Law 21, quoting Section 471.013.
6/ One thrust of Petitioner's concern seems to be that he believes there are no Florida rules accepting accreditation of a college or university by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology (EAC/ABET). In fact, at least since April 9, 2007, Florida Administrative Code Rule 61G5-20.001 has accepted "engineering programs accredited by the EAC/ABET". (Emphasis supplied.) See Conclusion of Law 23.
7/ It is noted that neither party has discussed whether TAC and EAC are substantially similar, but it is probable that they are not. See Endnote 6, and Conclusion of Law 23.
Thomas P. Norris
Michael T. Flurry, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and
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.
