05-002859RX Philip James Hursh vs. Department Of Business And Professional Regulation, Board Of Professional Engineers Status: Closed DOAH Final Order on Thursday, January 5, 2006.

Summary: Subject rules do not constitute an invalid exercise of legislative authority.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP JAMES HURSH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2859RX

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGUL A TION, )

FLORIDA BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

________________ _________________)

FINAL ORDER

Pursuant to the agreement of the parties, no formal hearing

was held in this case. Rather, the parties submitted the case

for decision on the stipulated facts set forth in the

Petitioner's Unilateral Proposed Pre - hearing Statement.

APPEARANCES

For Petitioner: G.W. Harrell, Esquire

Akerman Senterfitt

Post Office Box 1877

Tallahassee, Florida 32302 - 1877

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Florida Administrative Code Rules 61G15 -

21.009(1)(b) and (3) and 61G15 - 20.0015(3) are invalid exercises

of delegated legislative authority.

PRELIMINARY STATEMENT

On August 9, 2005, Phillip James Hursh filed his Petition

for Administrative Determination of Validity of Existing Rules.

Mr. Hursh challenges Florida Admini strative Code Rules 61G15 -

21.009(1)(b) and (3) and 61G15 - 20.0015(3) on the grounds that

they enlarge, modify, or contravene the specific provisions of

Section 471.015(3)(b), Florida Statutes, which renders the rules

invalid pursuant to Section 120.52(8)(c) , Florida Statutes. A

formal hearing was scheduled for September 9, 2005; however, on

September 7, 2005, the parties requested, during a telephone

conference, that the hearing be cancelled and the parties be

allowed to submit the case on stipulated facts.

The parties filed their proposed final orders on

September 28, 2005, and the Petitioner filed Petitioner's

Response to Proposed Final Order on October 21, 2005. The

parties' proposals have been considered in the preparation of

this Final Order.

FINDINGS OF FACT

Based on the stipulated facts submitted by the parties and

on the entire record of this proceeding, the following findings

of fact are made:

1. The Department of Business and Professional Regulation,

Board of Professional Engineers ("Board") is the state agency

responsible for the licensure and regulation of professional

engineers in Florida. §§ 471.007, 471.008, 471.013, and

471.031, Fla. Stat. (2005). 1

2. Mr. Hursh is an individual who applied for licensure by

endorsement with the Board to be licensed as a professional

engineer. Mr. Hursh is licensed in another state, so he applied

for licensure by endorsement pursuant to Section 471.015(3)(b),

Florida Statutes.

3 . Mr. Hursh failed to pass the required Principles and

Practice Examination, pr ovided by the National Council of

Examiners for Engineers and Surveyors ("NCEES") five times since

October 1, 1992, in an effort to become licensed as an engineer

in Florida. In April 2004, Mr. Hursh passed the NCEES

examination in Delaware, met Delaware' s other licensing

criteria, and, on July 14, 2004, was issued a license to

practice engineering by the State of Delaware.

4 . In August 2004, Mr. Hursh filed his application for

licensure by endorsement with the State of Florida and

subsequently provided a ll supporting documentation as requested

by the Board, including a Verification of Licensure from the

Delaware Association of Professional Engineers. Mr. Hursh did

not provide a copy of the Delaware licensing requirements.

5 . On January 19, 2005, the App lication Committee of the

Board denied Mr. Hursh's application, citing as the reason

"5 time failure - need 12 hrs. of courses prior to endorsement."

Delaware's licensing criteria was never reviewed by the Board to

determine if the Delaware licensing crit eria was substantially

the same as Florida's licensing criteria.

6 . On February 10, 2005, the Board filed a Notice of

Denial of Mr. Hursh's application for licensure by endorsement,

citing as the basis for the denial that Mr. Hursh had failed the

examinat ion five times and needed to meet the additional college

credit requirements of Section 471.013, Florida Statutes , and

Florida Administrative Code Rule 61G15.21.007.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties ther eto pursuant to Sections 120.56(1) and (3) and

120.569, Florida Statutes .

8 . The Petitioner challenges the validity of Florida

Administrative Code Rules 61G15 - 21.009(1)(b), 61G15 - 20.0015(3)

and 61G1 5 - 21.009(3), pursuant to Section 120.52(8), Florida

Statutes, which provides in pertinent part:

8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

prop osed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a) 1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a) 1.;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a ru le is

capricious if it is adopted without thought

or reason or is irrational; . . .

* * *

A grant of rulemaking authority is

necessary but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An age ncy may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority o r

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

See also § 120.536(1), Florida Statutes.

9 . In interpreti ng the provisions in the final paragraph

of Section 120.52(8) and in Section 120.56(1), which was amended

for the last time in 1999, the First District Court of Appeal

held in Southwest Florida Water Management District v. Save the

Manatee Club, Inc., et a l. , 773 So. 2d 594, 599 (Fla. 1st DCA

2000):

The new law gives the agencies authority to

"implement or interpret" specific powers and

duties contained in the enabling statute. A

rule that is used to implement or carry out

a directive will necessarily cont ain

language that is more detailed than that

used in the directive itself. Likewise, the

use of the term "interpret" suggests that a

rule will be more detailed than the

applicable statute. There would be no need

for interpretation if all details were

con tained in the statute itself.

It follows that the authority for an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the

grant of authority is specific enough.

Either the enabling statute authorizes the

rule at issue or it does not.

10 . For purposes of this challenge to existing rules,

Mr. Hursh has the burden of proving by a preponderance of the

evidence that the rules are invalid. § 120 .56(3)(a), Fla. Stat.

Validity of Florida Administrative Code Rule 61G15 - 21.009(1)(b)

11 . Mr. Hursh asserts that the second sentence of Florida

Administrative Code Rule 61G15 - 21.009(1)(b) is an invalid

exercise of delegated legislative authority on the g rounds that

the Board has exceeded its rulemaking authority; that this

provision of the rule enlarges, modifies, or contravenes the

provisions of Section 471.015(3), Florida Statutes; and that

this provision of the rule is arbitrary and capricious. See

§ 120.52(8)(b), (c), and (e), Fla. Stat.

12 . Florida Administrative Code Rule 61G15 - 21.009(1)(b),

provides in pertinent part:

(1) An applicant shall be qualified for

licensure by endorsement if:

* * *

(b) The applicant holds a valid license to

practice engineering issued by another state

or territory of the United States, provided

that the criteria for issuing the license

was substantially the same as the licensure

criteria which existed in Florida at the

time the license was issued. If, at the

time the applicant was licensed by the other

jurisdiction, the applicant's qualifications

would have rendered him or her eligible for

licensure in Florida, the applicant is

qualified for licensure by endorsement .

(Emphasis added.) The Board cited Section 471.008 , Florida

Statutes, as the s pecific a uthority for Rule 61G15 - 21.009, and

Section 471.015(3), Florida Statutes, as the law implemented by

the rule.

13 . Section 471.008, Florida Statutes, confers general

rulemaking authority on the Board: " The board has au thority to

adopt rules pursuant to ss. 120.56 (1) and 120.54 to implement

provisions of this chapter or chapter 455 conferring duties upon

it. "

14 . The specific law implemented by Florida Administrative

Code Rule 61G15 - 21.009, Section 471.015(3), Florida S tatutes,

governs licensure by endorsement and provides:

(3) The board shall certify as qualified

for a license b y 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 e xperience

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

crite ria that existed in this state at t he

time the license was issued.

15 . Mr. Hursh applied for licensure by endorsement

pursuant to Section 471.015(3)(b), Florida Statutes, based on

his having been licensed as a professional engineer in Delaware

in 2004.

1 6 . Based on the findings of fact herein, Mr. Hursh has

failed to prove by a preponderance of the evidence that the

second sentence of Florida Administrative Code Rule 61G15 -

21.009(1)(b) is an invalid exercise of delegated legislative

authority as defined in Section 120.52(8), Florida Statutes.

The provision in the rule that applicants licensed in another

jurisdiction who meet the licensure criteria in Florida at the

time they were licensed qualify for licensure by endorsement

does not on its face, impose an additional restriction on

licensure by endorsement. 2 Indeed, it would appear to provide an

additional basis for licensure by endorsement when an applicant

is licensed in a state in which the licensure criteria were not

"substantially similar" to those in Florida at the time the

applicant was licensed. 3

Validity of Florida Administrative Code Rule 61G15 - 21.0015(3)

and Florida Administrative Code Rule 61G15 - 21.009(3).

17 . Florida Administrative Code Rule 61G15 - 20.0015(3),

which governs applications for licensure by endorsement,

provides in pertinent part: " An applicant for licensure by

endorsement who has taken either the fundamentals or the

principles and practice examinations more than five (5) times

after October 1, 1992 must document compliance with subsection

61G15 - 21.007(2), F.A.C. , as a condition of eligibility for

licensure by endorsement. " The Board cited Sections 471.008,

471.013, and 471.015, Florida Statutes, as the s pecific

a uthority for Rule 61G15 - 20.0015 and cited Sections 471.013 and

471 .015, Florida Statutes, as the law implemented by the rule.

18 . Florida Administrative Code Rule 61G15 - 21.009(3),

which governs licensure by endorsement, provides in pertinent

part: " An applicant for licensure by endorsement who has taken

either the fund amentals or the principles and practice

examinations more than five (5) times after October 1, 1992 must

document compliance with subsection 61G15 - 21.007(2), F.A.C. , as

a condition of eligibility for licensure by endorsement. " The

Board cited Section 471. 008, Florida Statutes, as the s pecific

a uthority for Rule 61G15 - 20.0015 and cited Section 471.015(3),

Florida Statutes, as the law implemented by the rule.

19 . As noted above, Section 471.015(3), Florida Statutes,

governs licensure by endorsement and stat es that an applicant is

qualified for licensure by endorsement if he or she is licensed

in another jurisdiction in which the licensing criteria was

substantially the same as that in Florida at the time the

license was issued. Section 471.013 (1), Florida S tatutes, sets

forth the prerequisites which must be met before an applicant is

entitled to take the e xamination that must be passed in order

for an applicant to qualify for licensure as professional

engineer in Florida. Section 471.013(1), Florida Statute s,

provides in pertinent part:

(e) Every applicant who is qualified to

take the fundamentals examination or the

principles and practice examination shall be

allowed to take either examination three

times, notwithstanding the number of times

either examina tion has been previously

failed. If an applicant fails either

examination three times, the board shall

require the applicant to complete additional

college - level education courses as a

condition of future eligib ility to take that

examination. . . . [ 4 ]

20 . Florida Administrative Code Rule 61G15 - 21.007, which

is incorporated into Florida Administrative Code Rule 61G15 -

21.0015(3) and Florida Administrative Code Rule 61G15 - 21.009(3),

implements Section 471.013(1)(e), Florida Statutes, and

provides:

If a n applicant fails three times to

pass the examination, the applicant must

take additional courses in order to reapply

for examination. The applicant must submit

to the Board of Professional Engineers

transcripts for the enrollment and

completion of twelve (12) college credit

hours of college level courses in the

applicant's area of deficiency. For

applicants to take Part I of the engineer

examination, such additional courses shall

be undergraduate college courses in higher

mathematics, basic sciences or e ngineering

as described in paragraphs 61G15 -

20.007(2)(a), (b) and (d), F.A.C. For

applicants to take Part II of the engineer

examination, such additional courses shall

be upper level or higher courses in

engineering, as defined in paragraph 61G15 -

20.007(2 )(d), F.A.C. [ 5 ]

21 . Based on the findings of fact herein, Mr. Hursh has

failed to prove by a preponderance of the evidence that Florida

Administrative Code Rule 61G15 - 21.009(3) is an invalid exercise

of delegated legislative authority as defined in

Secti on 120.52(8), Florida Statutes. Section 471.015(3)(b),

Florida Statutes, permits licensure by endorsement only if the

licensure criteria of another jurisdiction was substantially the

same as the criteria in Florida at the time the license was

issued. As noted by both the Board and Mr. Hursh,

"substantially similar" or "substantially equivalent" has been

defined in the context of comparing licensing examinations to

mean "that which is equal in essential and material elements."

See Eason v. Department of B usiness & Professional Regulation ,

732 So. 2d 1136, 1137 (Fla. 5th DCA 1999). This definition can

appropriately be applied to the term "substantially the same,"

as used in reference to licensing criteria in

Section 471.015(3)(b), Florida Statutes.

22. Th e Board may certify for licensure as a professional

engineer a person who has, among other things, passed a two - part

examination. See § 471.015(1), Fla. Stat. Pursuant to

Section 471.013(1)(a), Florida Statutes, an applicant is not

entitled to take the e xamination unless he or she has an

educational background specified in that section and is of good

moral character. Likewise, pursuant to Section 471.013(1)(e),

Florida Statutes, an applicant who has taken and failed to pass

the examination three times is not entitled to take the

examination unless he or she obtains additional college credit

in the area of deficiency. Therefore, additional college credit

is a "licensure criteria" for those persons who have failed the

examination three times, or, in Mr. Hu rsh's case, five times.

23 . Florida Administrative Code Rule 61G15 - 21.0015(3) and

Florida Administrative Code Rule 61G15 - 21.009(3), do not impose

an additional licensure criteria on those seeking licensure by

endorsement even though the requirement that a n applicant for

licensure by endorsement obtain the additional college credit is

identified in both rules as a "condition of eligibility for

licensure by endorsement." Rather, those rules merely make it

explicit that the licensing criteria of another juri sdiction

will not be considered "substantially the same" as the licensing

criteria in Florida if the criteria permit licensure of persons

who have failed the examination three or more times without

requiring that the person obtain additional college credit .

Indeed, were it not for Florida Administrative Code Rule 61G15 -

21.0015(3) and Florida Administrative Code Rule 61G15 - 21.009(3),

the Board could reject the application for licensure by

endorsement of applicants from states who do not require

additional c ollege credit, without more. These rules, however,

allow the Board to qualify these applicant s for licensure by

endorsement if they provide proof that they have obtained the

additional college credit specified in Florida Administrative

Code Rule 61G15 - 21. 007.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Phillip James Hursh's Petition for

Administrative Determination of Validity of Existing Rules be

dismissed.

DONE AND ORDERED this 5th day of January , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of January, 2006 .

ENDNOTES

1 / All references to the Florida Statutes herein are to the 2005

edition unless otherwise indicated.

2 / The argument included in Mr. Hursh's Response to Proposed

Final Order that the second sentence of Florida Administrative

Code Rule 61G15 - 21.009(1)(b) commingles the alternative means of

qualifying for licensure by endorsement set forth in

Section 471.015(3), Florida Statutes, overlooks the distinction

between Section 471.015 (3)(b), Florida Statutes, which requires

that an applicant currently meets certain licensing criteria,

and the rule provision, which requires that an applicant meet

the licensing criteria in Florida at the time the applicant was

licensed in the other juris diction .

3 / In his Proposed Final Order, Mr. Hursh complains that the

Board required him "to submit evidence that he met all of

Florida's licensing requirements, instead of making a

determination as to whether the Florida and Delaware licensure

criteria were substantially the same." This constitutes a

challenge to the way in which the Board applied Florida

Administrative Code Rule 61G15 - 21.009(1)(b) to Mr. Hursh, rather

than a challenge to the rule's validity pursuant to

Section 120.52(8), Florida Statu tes.

4 / Section 471.013(1)(e), Florida Statutes, was amended in 2004

to reduce from five to three the number of times an applicant

could fail to pass the examination. This change is irrelevant

to the present case.

5 / At the time relevant to this proce eding, the rule applied to

persons who had failed the examination five times. The rule was

amended effective February 10, 2005, to correspond with the

amendment to Section 471.013(1)(e), Florida Statutes, in 2004.

COPIES FURNISHED:

G.W. Harrell, Esquire

Akerman Senterfitt

Post Office Box 1877

Tallahassee, Florida 32302 - 1877

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 0 1

Tallahassee, Florida 32399 - 1050

Simone Marstiller, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Paul J. Martin, Executive Director

Board of Professional Engineers

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Doug Sunshine, Esquire

Vi ce President for Legal Affairs

Florida Engineers Management Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial revie w pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative He arings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days o f rendition of the order to

be reviewed.