10-003103 Mahmood Davoodi vs. Board Of Professional Engineers Status: Closed Recommended Order on Monday, July 11, 2011.

Summary: No licensure by endorsement for professional engineer licensed in NC because NC did not require him to pass Part I of the NCEES. Thus, the NC criteria were not "substantially the same" as the Florida criteria, which require passing Part I.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAHMOOD DAVOODI, )

)

Petitioner, )

)

vs. ) Case No. 10 - 3103

)

BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

_ _______________________________ )

RECOMMENDED ORDER

E rrol H. Powell, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing on

November 8, 2010, by videoconference in Tallahassee and

Lauderdale Lakes, Florida. Due to the unavailability of Judge

Powell, the case has been reassigned to Administrative Law Judge

Robert E. Meale, who has prepared this r ecommended o rder, using

the existing record, pursuant to section 120.57(1)(a), Florida

Statutes.

APPEARANCES

For Petitioner: Kristine M. Johnson

Kri stine M. Johnson, P.A.

10620 Griffin Road

Cooper City, Florida 33328

For Respon dent: Michael T. Flury

Assistant Attorney General

Office of the Attorney General

The Capitol, P laza L evel - 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue is whet her Petitioner is qualified for

certification of qualification for licensure as a professional

engineer by endors ement, pursuant to section 471.015(3), Florida

Statutes.

PRELIMINARY STATEMENT

On August 27, 2009, Petitioner applied for licensure as a

professional engineer by endorsement. On November 30, 2009,

Respondent issued a Notice of Denial. On March 26, 2010,

Respondent issued an Amended Notice of Denial. Petitioner

timely requested a hearing.

At the hearing, Petitioner called three witnesses and

offered into evidence one exhibit: Petitioner Exhibit 1 ;

Respondent offered into evidence one exhibit: Responde nt

Exhibit 1. The parties filed two joint exhibits: Joint

Exhibits 1 - 2. All exhibits were admitted.

The court repo rter filed the transcript on November 23,

2010. The parties filed proposed recommended orders by

December 13, 2010.

FINDINGS OF FACT

1. In 1982, Petitioner earned a bachelor's degree in

construction engineering from Florida International University.

Petitioner does not have a doctorate in engineering.

2. On June 24, 2009, the state of North Carolina issued

Petitioner a license as a professional engineer. This is his

only professional engineer license.

3. Because Petitioner had over 20 years' progressive

experience on engineering projects acceptable to the North

Carolina State Board of Examiners for Engineers and Surveyors,

he was eligible for a professional engineer license by, among

other things, passing Part II of the National Council for

Examiners of Engineering and Surveying (NCEES), which is also

known as the Principa ls and Practices Examination. Due to his

experience, North Carolina did not require P e titioner to pass

Part I of the NCEES, which is also known as the Fundamentals

Examination.

4 . By application dated August 27, 2009, Petitioner

applied for Florida licensure by endorsement as a professional

engineer. Ultimately , Respondent declined to certify to the

Florida Engineers Management Corporation the application for

licensure by endorsement because Petitioner had n ot passed Part

I of the NCEES .

5 . Except for not having passed Part I of the NCEES

examination (or , if a pplicable, not having met one of the other

two alternatives set forth in section 471.015(5)(a), as

discussed in the Conclusions of Law ) , Petitioner otherwise meets

the education and experience requirements set forth in section

471.013(1), Florida Statutes , for certification for licensure by

endorsement .

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat.

7 . Petitioner bears the burden of proving his entitlement

to licensure by endorsement. Dep't of Trans p . v. J. W. C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; Espinoza v. Dep't of

Bus. and Prof' l Reg. , 739 So. 2d 1250 (Fla. 3d DCA 1999) .

8 . Section 471.015, Florida Statutes, provides, in part:

(1) The manag ement corporation shall issue

a license to any applicant who the board

certifies is qualified to practice

engineering and who has passed the

fundamentals examination and the principles

and practice examination.

(2) The board shall certify for licensure

a ny applicant who satisfies the requirements

of s. 471.013. The board may refuse to

certify any applicant who has violated any

of the provisions of s. 471.031.

(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

fund amentals 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.

* * *

(5)(a) The board shall deem that an

applic ant who seeks licensure by endorsement

has passed an examination substantially

equivalent to the fundamentals examination

when such applicant:

1. Has held a valid professional

engineerÓs license in another state for 15

years and has had 20 years of continuous

professional - level engineering experience;

2. Has received a doctorate degree in

engineering from an institution that has a n

undergraduate engineering degree program

which is accredited by the Accreditation

Board for Engineering Technology; or

3. Has received a doctorate degree in

engineering and has taught engineering full

time for at least 3 years, at the

baccalaurea te level or higher, after

receiving that degree.

(b) The board shall deem that an applicant

who seeks licensure by endorsement has

passed an examination substantially

equivalent to the fundamentals examination

and the principles and practices examination

when such applicant has held a valid

professional engineerÓs license in another

state for 25 years and has had 30 years of

continuous professional - level engineering

experience.

9 . Among other things , for a license not by endorsement,

Florida statutes r equire applicants to pass Parts I and II of

the NCEES -- s ection 471.015(1) ; possess a degree from a school

approved by Respondent with an approved four - year engineering

curriculum and four years' active, responsible engineering

experience -- section s 471.015( 2) and 471.013(1)(a) 1. ; and

demonstrate good moral character -- sect i on s 471.015(2) and

471.013(2)(a).

10 . For a license by endorsement, Florida statutes impose

one of two sets of requirements: 1) the requirements of section

471.013 for sitting for Part s I and II of the NCEES , passing the

"substantial. . . equivalent" of Parts I and II of the NCEES ,

and four years' active, responsible engineering experience, as

required by section 471.013(1)(a)1. or 2) holding a valid

p rofessional engineer license issued by another state, if the

criteria for issuance were "substantially the same" as the

Florida criteria. These are the provisions of section

471.015(3)(a) and (b), respectively.

11. Section 471.015(5)(a) directs Respondent to deem that

an applicant has p assed an exam "substantially equivalent" to

Part I of the NCEES, if the applicant has held a professional

engineer license for 15 years and has had 20 years' acceptable

experience, has a doctorate degree in engineering from a school

with an accredited unde rgraduate engineering program, or has a

doctorate degree in engineering and has taught undergraduate

engineering fulltime for three years or more.

12. Although the Joint Pre - hearing Stipulation states that

Petitioner is seeking licensure by endorsement u nder section

471.015(3)(a) and (b), his post - hearing filing seems to rely

exclusively on section 471.015(3)(b). Petitioner does not

qualify under section 471.015(3)(a) because he has not taken an

exam that is the substantial equivalent of Part I of the NC EES,

nor does he have the requisite education or licensing history

that would allow him not to take Part I, as provided by section

471.015(5)(a). For the same reasons, discussed below,

Petitioner may not claim substantial compliance with one of the

subst itutes authorized by section 471.015(5)(a) for Part I of

the NCEES because he lacks a doctorate degree or 15 years'

licensing history.

13 . As to section 471.015(3)(b), the issue is whether the

criteria for the issuance of a North Carolina license are

" substantially the same" as the criteria for the certification

for issuance of a Florida license. "Substantially the same"

means that the North Carolina criteria are not materially

different from the Florida criteria. Eason v. Dep't of Bus. and

Prof'l Reg . , 732 So. 2d 1136 (Fla. 5th DCA 1999) (other state's

points for veterans' preference, on which applicant relied for

passing grade, rendered scoring of Part II of the NCEES

materially different from the Florida criterion, which does not

add extra points fo r veterans ) .

14 . If section 471.015(5)(a) also applies to section

471.015(3)(b), the lack of merit to Petitioner's argument would

be obvious. If the legislature relieved certain highly educated

or long - licensed persons from the obligation of taking Part I of

the NCEES, it would make no sense to allow someone without the

same level of education or licensing history not to take Part I,

merely by claim ing that his passing Part II is "substantially

the same" as passing Parts I and II.

15 . Even if there w ere some difference in meaning between

two things that are substantially equivalent and two things that

are substantially the same, such that section 471.015(5)(a)

would not apply to section 471.015(3)(b), Petitioner's argument

still lacks merit. Essentia lly, Petitioner interpret s the

"substantially the same" language in s ection 471.015(3)(b) to

read out of the licensing requirements one of the relatively few

criteria imposed upon an applicant for a pr ofessional engineer

license -- here, that an applicant pa ss Part I of the NCEES. But

the licensing criteria of another state are not "substantially

the same" as Florida's criteria, if the other state does not

require one of Florida's criteria, such as good moral character,

extensive education, meaningful experi ence, or passing both

parts of the NCEES.

16. Petitioner provides no guidance as to which of

Florida's criteria may be omitted by the other state, i f its

licensing criteria are still to be considered "substantially the

same" as Florida's criteria. To prevail i n this case,

Petitioner must argue that passing Part II is "substantially the

same" as passing Parts I and II of the NCEES , a bachelor's

degree is "substantially the same" as a doctorate, or two years'

licensing history is "substantially the same" as 15 years'

licensing history (ignoring a possible issue in the quality of

the experience also required under this substitute criterion) .

17. Providing no test for materiality, Petitioner's

argument seems to be that the other state may omit a single

Florida licensing criterion and still impose "substantially the

same" criteria . Under this approach, a nother applicant for

licensure by endorsement may argue that another state's

licensing scheme is "substantially the same" as Florida's

scheme, even thoug h the other state does not require good moral

character, extensive education, meaningful experience, or

perhaps passing Part II of the NCEES.

18 . The only practical interpretation of the

"substantially the same" language is that the other state's

licen sing criteria must: 1) include all of Florida's licensing

criteria, and 2) if not exactly the same as Florida's licensing

criteria, the other state's licensing criteria may be no more

than insubstantially or immaterially different . Thus, an

applicant may not obtain licensure by endorsement, if he

obtained a license in another state that did no t require good

moral character -- or something "substantially the same , " such as

"a lack of moral turpitude ." Likewise, an applicant may not

obtain licensure by endor sement, if he obtained a license in

another state that did not require a four - year degree from an

approved school with an approved engineering curriculum -- or

something "substantially the same," such as a four - year degree

from a school not approved by Respo ndent , but insubstantially or

immaterially different from schools that have been approved by

Respondent . See Gaudet v. Board of Prof'l Eng'rs , 900 So. 2d

574 (Fla. 4th DCA 2004).

19 . The failure of North Carolina to require Petitioner to

pass Part I o f the NCEES means that its licensing criteria were

not "substantially the same" as the licensing criteria of

Florida . Because Petitioner also lacks a doctorate or 15 years'

licensing history (with the requisite professional experience in

terms of quantit y and quality), he is not entitled to

certification of qualification for licensure by endorsement

without passing Part I of the NCEES .

RECOMMENDATION

It is

RECOMMENDED that th e Board of Professional Enginee rs enter

a final order denying Petitioner's appl ication for certification

of qualification for licensure by endorsement.

DONE AND ENTERED this 11 th day of July, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 11 th day of July, 2011.

COPIES FURNISHED :

Michael Todd Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

K ristine M. Johnson, Esquire

10620 Griffin Road, Suite 106 - B

Cooper City, Florida 33328

Carrie A. Flynn, Executive Director

Board of Professional Engineers

Department of Business and

Professional Regulation

2507 Callaway Road, Suite 200

Tallahassee, Fl orida 32303 - 5267

John Rimes, Esquire

Chief prosecuting Attorney

Florida Engineers Management

Corporation

2507 Callaway Road, Suite 200

Tallahassee, Florida 32303 - 5267

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recom mended order must be filed with the agency that

will issue the final order in this case.