STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 29, 2009, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rashad M. Hanbali, pro se

Post Office Box 152003 Cape Coral, Florida 33915

For Respondent: Michael T. Flury, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner meets the requirements of Section 471.015, Florida Statutes1, for licensure as a professional engineer by endorsement or, in the alternative, whether Petitioner is entitled to a variance and waiver of Florida

Administrative Code Rule 61G15-21.001(1), which requires an applicant for licensure to have passed a written examination provided by the National Council of Examiners for Engineers and Surveyors (NCEES).

PRELIMINARY STATEMENT

On or about February 22, 2008, Petitioner applied for licensure by endorsement as a professional engineer in the State of Florida. On May 28, 2008, the Board of Professional Engineers (the Board) issued a Notice of Denial of Petitioner's application because Petitioner failed to take and pass the principles and practice examination, or other licensing examination that is "substantially equivalent," as required by Section 471.015(3), Florida Statutes.

On or about February 28, 2009, Petitioner filed a petition for a variance or waiver of Florida Administrative Code Rule 61G15-21.001. By Order dated July 13, 2009, the Board denied the petition because "the applicant has not met or cannot meet the purpose of the underlying statute."

Petitioner timely challenged the licensure denial, though the case was not forwarded to the Division of Administrative Hearings (DOAH) until April 28, 2009. The hearing was originally scheduled for July 23, 2009, continued once at the request of the Board, and held on July 29, 2009. At the outset of the hearing, the parties agreed that Petitioner could make an

ore tenus motion to have the denial of his petition for variance or waiver brought before this tribunal and consolidated with the existing proceeding. Petitioner was allowed to make separate presentations regarding the denial of his license application and the denial of his petition for variance or waiver, and the parties addressed both issues in their Proposed Recommended Orders.

At the hearing, Petitioner testified on his own behalf.

Petitioner's Exhibits P1 through P14 were admitted into evidence. The Board presented the legal argument of its counsel but no sworn testimony. The Board's Exhibits R1 (a composite of Petitioner's complete application file) and R2 were admitted into evidence.

The one-volume transcript was filed at DOAH on September 1, 2009. The parties timely filed Proposed Recommended Orders on September 11, 2009. On September 14, 2009, Petitioner filed a letter addressed to the undersigned and copied to the Board's counsel. The letter included further argument regarding the employment restrictions placed on Petitioner by his lack of a professional engineer's license. Attached to the letter were documents purporting to support Petitioner's contention that the California professional traffic engineer examination is "substantially equivalent" to the NCEES principles and practice examination.

On September 23, 2009, the Board filed a motion to exclude the supplemental exhibits, arguing that the record was closed and that it would be unfair to allow Petitioner to submit new exhibits with no opportunity for the Board to rebut them or subject Petitioner to cross-examination about them.

On September 24, 2009, Petitioner filed a cross-motion to admit the supplemental exhibits, arguing that the new materials provide the undersigned with a fuller picture of the matters at issue and pleading that Petitioner's status as a pro se litigant be considered in denying admission of relevant materials due to a procedural failure by Petitioner.

The two exhibits in question are, first, an official publication of the California Board of Professional Engineers setting forth the detailed content areas covered by that state's traffic engineering licensing examination and, second, an NCEES publication setting forth the detailed subject areas of the principles and practice examination. Both documents are readily available on the internet. The comparative content of these examinations is one of the main issues in this case, and that content was discussed in detail at the hearing and in the exhibits already admitted into evidence. The Board will suffer no prejudice by their admission.

Based on the foregoing, and in full consideration of the parties' arguments, Petitioner's cross-motion is GRANTED and the

late-filed exhibits are admitted into evidence. The California materials, consisting of a seven-page "Examination Outline for Traffic Engineering Licensing Examination," is admitted as Petitioner's Exhibit 15, and the NCEES materials, consisting of a five-page "Principles and Practice of Engineering Civil BREADTH Exam Specifications," is admitted as Petitioner's Exhibit 16.

FINDINGS OF FACT

1. Petitioner Rashad M. Hanbali applied for licensure by endorsement with the Board by filing a written application. The application was signed and dated February 20, 2008, and was received by the Board on or about February 22, 2008.

2. Petitioner received a Bachelor of Science degree in civil engineering from California State University, Fresno, in 1981. This program was accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc. (EAC/ABET), which is the accrediting body for engineering programs that is recognized by the Board pursuant to Florida Administrative Code Rule 61G15- 20.001(2)(a).

3. Petitioner received a Master of Science degree in civil engineering from Marquette University in 1989. In 1992, Petitioner received his Doctorate of Philosophy degree in civil

   engineering, also from Marquette University. Marquette's undergraduate program is accredited by the EAC/ABET.

4. Petitioner was licensed as a professional engineer by the State of Wisconsin on June 21, 1993. The State of Wisconsin did not require Petitioner to take the NCEES fundamentals of engineering or principles and practice of engineering examination, and Petitioner did not take either of those examinations. In lieu of passing examinations, Petitioner was able to meet Wisconsin's alternative requirement that a licensee must be a graduate of an EAC/ABET-accredited engineering school and possess 8 years of experience in engineering work of a character satisfactory to the examining board and indicating that the applicant is competent to practice engineering. See Section 443.04(1)(d), Wisconsin Statutes (1993).2 Wisconsin required the applicant to take and pass a "barrier free design" examination regarding special needs access to public buildings. Petitioner took and passed this examination.

5. Petitioner was licensed as a professional engineer in traffic engineering by the State of California on January 25, 2008. The State of California required Petitioner to take and pass a traffic engineering licensing examination. The subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination.

6. The State of California recognizes only three practice act engineering licenses: civil, mechanical, and electrical engineering. A "practice act" discipline is one in which a license is required in order for a person to practice in the field. The State of California recognizes several other "title act" licenses, including the traffic engineer's license. "Title act" means that no license is required to practice in a field such as traffic engineering in California, but a license is required in order for the practitioner to employ the title of "traffic engineer."

7. In September 2006, Petitioner passed the certification examination offered by the Transportation Professional Certification Board, Inc., a national organization that bestows the certification of "professional traffic operations engineer." The subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination.

8. Petitioner has not taken either the fundamentals examination or the principles and practice examination given by the NCEES. Florida Administrative Code Rule 61G15-21.001(1) requires a license applicant to take and pass both the fundamentals and the principles and practice examinations.

9. Section 471.013(1)(d), Florida Statutes, deems that an applicant has passed the fundamentals exam if the applicant has

   obtained a doctorate degree in engineering from an institution that has an undergraduate program that is accredited by the EAC/ABET and has taught engineering full time for at least three years at the baccalaureate level or higher after receiving that degree. After obtaining his PhD from Marquette, Petitioner was an associate professor and taught traffic engineering courses at Tennessee Technological University from August 2001 through August 2004.

10. The Board has agreed that Petitioner's education and experience comply with the requirements of the statute and he is deemed to have passed the fundamentals examination.

11. Petitioner has more than four years of active engineering experience, which meets the experience requirement of Section 471.013(1)(a), Florida Statutes.

12. In summary, Petitioner meets the education and experience requirements for licensure as a professional engineer, and Petitioner is deemed to have passed the fundamentals examination. The only bar to Petitioner's licensure in Florida is his failure to take the principles and practice examination.

13. Petitioner contends, on two grounds, that he should not be required to sit for the principles and practice examination. First, he states that the California traffic engineering licensing examination he passed in 2008 was

    "substantially equivalent" to the NCEES principles and practice examination. Petitioner is correct that the California examination is substantially equivalent to the transportation portion of the NCEES examination.

14. However, the transportation portion constitutes only

    
    

    20 percent of the NCEES principles and practice examination.

    
    

    The NCEES examination also covers the following subjects: construction (20 percent), geotechnical (20 percent), structural (20 percent), and water resources and environmental (20 percent). Thus, the California traffic engineering licensing examination cannot be considered the substantial equivalent of the NCEES principles and practice examination.

15. Second, Petitioner seeks exemption from the examination requirement by reference to Section 471.015(3)(b), which provides:

    (3) The board shall certify as qualified for a license 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.

    
    

16. Petitioner contends that his license to practice engineering in Wisconsin, obtained in 1993, meets the

    requirements of the quoted statute because the Wisconsin criteria for issuance were substantially the same as the Florida criteria as of 1993.3 Petitioner bases his contention on language from Florida Administrative Code Rule 21H-21.002(2), the Board rule in effect in 1993, indicating that the principles and practice examination at that time was limited to the particular discipline in which the applicant proposed to practice rather than the broad field of general engineering as it is administered in Florida today.4 (Petitioner assumes, without evidence, that in 1993 the Board administered a specialty examination in "traffic engineering.")5

17. However, as found above, Petitioner did not take an examination in Wisconsin. Thus, a comparison of the examination requirements of the two states is irrelevant. Because Petitioner obtained his license in Wisconsin by virtue of an exemption from examination based on his education and experience, the "criteria for issuance of the license" that must be "substantially the same" between the two states are those under which a waiver from examination is obtained.

18. Florida law in 1993 made provision for waiver of the examination requirement based on education and experience. Section 471.015, Florida Statutes (1993), provided, in relevant part:

    (5)(a) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I of the engineering examination when such applicant:

    
    

    1. Has held a valid professional engineer's registration in another state for

       15 years, and

       
       

    2. Has had 20 years of continuous professional-level engineering experience.

       
       

       (b) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I and part II of the engineering examination when such applicant:

       
       

       1. Has held a valid professional engineer's registration in another state for

          25 years, and

          
          

       2. Has had 30 years of continuous professional-level engineering experience.

       
       

19. The terms of the 1993 statute indicate that had Petitioner sought licensure in Florida, he could not have waived the principles and practice examination because he lacked the requisite 25 years' licensure as a professional engineer and 30 years of continuous professional-level engineering experience. The criteria for issuance of the license in Wisconsin were not substantially the same as those for issuance of the license in Florida in 1993.

20. Petitioner does not satisfy the requirements for licensure by endorsement because he has not taken and passed the principles and practice examination, or other licensing

    examination that is "substantially equivalent," as required by Section 471.015(3), Florida Statutes. Petitioner has not demonstrated any ground for an exemption to the requirement that he pass the principles and practice examination.

21. In the alternative, Petitioner seeks a waiver of the examination requirement of Florida Administrative Code Rule 61G15-21.001, pursuant to Section 120.542, Florida Statutes. However, the impediment to Petitioner's licensure by endorsement is not merely the Board's rule but Subsections 471.015(3) & (5), Florida Statutes. An agency does not have authority to grant a variance or waiver from a statute. § 120.542(1), Fla. Stat.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this hearing pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2009).

23. Chapters 455 and 471, Florida Statutes, regulate the licensure and practice of engineering in the State of Florida, along with Florida Administrative Code Chapter 61G15.

24. 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 every step of the licensure proceedings until the agency has taken final action. 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).

25. Petitioner has applied for licensure as a professional engineer by endorsement. There was no dispute in this case that Petitioner meets the education and experience requirements for licensure set forth in Section 471.013 and incorporated by reference in Section 471.015(3), Florida Statutes. The issue is whether Petitioner qualifies under either of the two available avenues set forth in Section 471.015(3), Florida Statutes, for licensure as a professional engineer by endorsement:

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

       
       

       1. 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

          
          

       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.

    
    

26. The evidence adduced at the final hearing established that Petitioner is deemed to have passed the fundamentals examination by virtue of his doctorate degree and university teaching experience, under the criteria set forth in Sections 471.013(1)(d) and 471.015(5)(a), Florida Statutes. The Board disputes whether Petitioner meets the requirements for exemption from the principles and practice examination.

27. The evidence at hearing established that Petitioner passed the State of California licensure examination for traffic engineering. Under Section 471.015(3)(a), Florida Statutes, the California licensure examination must be "substantially equivalent" to the principles and practice examination. Florida Administrative Code Rule 61G15-21.001 provides that the NCEES examination is the point of comparison.

28. The evidence at hearing established that the California examination was substantially equivalent to the transportation section of the NCEES principles and practice examination, but that the transportation section constituted

    only 20 percent of the NCEES examination. Therefore, taken as a whole, the California licensure examination for traffic engineering and the NCEES principles and practice examination cannot be considered "substantially equivalent" for purposes of Section 471.015(3)(a), Florida Statutes. See Eason v.

    Department of Business and Professional Regulation, 732 So. 2d 1136, 1137 (Fla. 5th DCA 1999), citing Sutto v. Board of Medical Registration and Examination, 180 N.E. 2d 533, 538 (Ind. 1962) ("substantially equivalent" means "that which is equal in essential and material elements").

29. Petitioner submitted evidence sufficient to demonstrate that he passed the "professional traffic operations engineer" certification examination offered by the Transportation Professional Certification Board, Inc., and that the subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination. In addition to duplicating the failure of the California examination to match all subject areas of the NCEES examination, the Transportation Professional Certification Board examination carries the further deficiency of not being "a United States national, regional, state, or territorial licensing examination" as required by Section 471.015, Florida Statutes. (Emphasis added.)

30. The evidence at hearing established that Petitioner failed to meet the requirements of Section 471.015(3)(b), Florida Statutes, because the criteria for issuance of his licenses in California and Wisconsin were not "substantially the same" as the licensure criteria in Florida at the time Petitioner's licenses were issued. See Eason, 732 So. 2d at 1137 (permissible for the Board to interpret "substantially the same" to mean "equal in all material respects"). Wisconsin's provision for licensure by endorsement in 1993 was much less restrictive than the Florida provision, which required licensure in another state for 25 years and 30 years' continuous professional engineering experience in order to be deemed to have passed both sections of the licensure examination. In 2008, Petitioner did pass a limited examination in California, but that examination was not substantially equivalent to the examination administered in Florida in 2008. Also, California's "traffic engineer" license is a title act license, not at all the same as Florida's practice act license. See § 471.003(1), Fla. Stat.

31. Finally, Petitioner requested a waiver of the examination requirement pursuant to Section 120.542, Florida Statutes. However, the criteria for licensure by endorsement are set forth in Section 471.015(3), Florida Statutes, and the criteria under which the required examinations may be "deemed"

to have been passed are provided by Section 471.015(5), Florida Statutes. The Board lacks the power to grant a variance or waiver from its governing statutes. § 120.542(1), Fla. Stat.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED that the Florida Board of Professional Engineers enter a final order denying Petitioner's application for licensure as a professional engineer by endorsement, and denying Petitioner's petition for a variance or waiver.

DONE AND ENTERED this 26th day of October, 2009, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2009.

ENDNOTES

1 All statutory references are to Florida Statutes (2008) unless otherwise noted.

2 Petitioner's Exhibit 8 included the 1993 version of the cited Wisconsin statute.

3 Petitioner also contends, at least by implication, that his 2008 California licensure should be read in comparison to Florida's 1993 licensing criteria, but this contention is without merit and requires no discussion.

4 Petitioner's main objection to taking the principles and practice examination is that he has specialized in traffic engineering for many years, and could undertake a general examination in all fields of engineering only with great hardship and longer hours of study than his job as a traffic engineer with the City of Naples would permit. Petitioner presented a sympathetic figure at the hearing, but has run afoul of the fact that the Florida Statutes do not provide for limited, specialty engineering licenses. Petitioner's representation that he would only practice in the field of traffic engineering is credited, but does not obviate the fact that any license that might issue from this proceeding could not be so limited.

5 The language from the 1993 rule, as provided by Petitioner's Exhibit 7 without objection from the Board, stated:

(2) Part two of the examination shall be based on Professional Practice and Principles and shall be devoted primarily to the field of the applicant's finding solutions to problems designed to test the applicant's ability to apply acceptable engineering practice to problems which are representative of his discipline.

Applicants for registration must select one of the listed specializations in which to be examined. The Board may also authorize examinations in other engineering disciplines when the Board determines that such disciplines warrant the giving of a separate examination in terms of cost effectiveness and acceptability in the profession of engineering.

Florida Administrative Code Rule 21H-21.002 was transferred to Florida Administrative Code Rule 61G15-21.002 in February 1995. Florida Administrative Code Rule 61G15-21.002, titled

"Areas of Competency and Grading Criteria," was repealed in June 2001.

The rule language quoted by Petitioner is problematic because Petitioner did not provide the referenced list of specializations to demonstrate that "traffic engineering" was even recognized as a specialty by the Board in 1993. The undersigned was unable to find the 1993 version of Chapter 21H-

21. However, the undersigned was able to find a substantial rewording of Florida Administrative Code Rule 61G15-21.002 proposed on September 15, 1999 (Florida Administrative Weekly vol. 25, no. 37, pp. 4301-4305) and adopted on November 10, 1999 (Florida Administrative Weekly vol. 25, no. 44, p. 5161). The recognized engineering specialties for purposes of the principles and practice examination in the reworded rule were: agricultural; chemical; civil; control systems; electrical; environmental; fire protection; industrial; manufacturing; mechanical; metallurgical; mining/mineral; nuclear; petroleum; ship design; structural I; and structural II.

The undersigned finds it unlikely that the relatively nascent discipline of traffic engineering was part of the specialties list in 1993 but was removed from the list in 1999. It appears more likely that traffic engineering was not a recognized engineering specialty in Florida in 1993.

COPIES FURNISHED:

Rashad M. Hanbali

Post Office Box 152003 Cape Coral, Florida 33915

Michael T. Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Ned Luczynski, General Counsel

Department of Business and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1027

Paul J. Martin, Executive Director

Board of Professional Engineers

Department of Business and Professional Regulation 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

John Rimes III, Esquire Chief Prosecuting Attorney

Florida Engineers Management Corp. 2507 Callaway Road, Suite 200

Tallahassee, Florida 32303-5267

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: 09-002266

Orders for Case No: 09-002266