09-002266 Rashad M. Hanbali vs. Board Of Professional Engineers Status: Closed Recommended Order on Monday, October 26, 2009.

Summary: Petitioner failed to establish entitlement to licensure by endorsement, where he had not taken the principles and practice examination and did not meet the statutory criteria for waiver of the examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RASHAD M. HANBALI, )

)

Petitioner, )

)

vs. ) Case No. 09-2266

)

BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

)

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 Statutes 1 , 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:

(3) The board shall certify as qualified

for a license by endorsement an applicant

who:

(a) 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

(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.

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

[phone]

Fax Filing [phone]

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.