97-003779 James R. Eason vs. Board Of Professional Engineers Status: Closed Recommended Order on Tuesday, November 25, 1997.

Summary: To be licensed by endorsement, Petitioner must have received a raw score of 70 on out-of-state exam. Veteran's points cannot be awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. EASON, )

)

Petitioner, )

)

vs. ) Case No. 97-3779

)

BOARD OF PROFESSIONAL )

ENGINEERS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 30, 1997, in Brooksville, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph M. Mason, Jr., Esquire

Post Office Box 1900

Brooksville, Florida 34605-1900

For Respondent: Edwin A. Bayo, Esquire

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's request for

license by endorsement as a professional engineer should be

granted.

PRELIMINARY STATEMENT

This matter began in March 1997 when Petitioner, James R.

Eason, licensed as a professional engineer with the State of

Georgia, filed his application for licensure by endorsement as a

professional engineer with Respondent, Board of Professional

Engineers. By letter dated July 1, 1997, Respondent advised

Petitioner that his application had been denied on the ground the

Principles and Practice portion of his examination "[would] not

be recognized" because his score "was 67% with five points

awarded for Veterans Preference" and that "the awarding of points

for Veterans Preference" was not allowed under Florida law.

Thereafter, Petitioner requested a formal hearing to contest

the agency's action. The matter was referred by Respondent to

the Division of Administrative Hearings on August 13, 1997, with

a request that an Administrative Law Judge be assigned to conduct

a hearing. By notice of hearing dated September 10, 1997, a

final hearing was scheduled on October 30, 1997, in Brooksville,

Florida. On October 27, 1997, the case was transferred from

Administrative Law Judge P. Michael Ruff to the undersigned.

At final hearing, Petitioner testified on his own behalf.

Respondent offered one exhibit which was received in evidence.

The parties also filed a Stipulation of Undisputed Facts.

There is no transcript of hearing. Proposed findings of

fact and conclusions of law were filed by Respondent on

November 17, 1997, and they have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. Petitioner, James R. Eason (Petitioner), is the pavement

management coordinator for the Hernando County Public Works

Department. He is a registered professional engineer in the

State of Georgia, having received Professional Engineering

Registration Number 17320 in 1988.

2. In March 1997, Petitioner filed an application with

Respondent, Board of Professional Engineers (Board), seeking

licensure by endorsement as a professional engineer in this

state. On July 1, 1997, the Board issued its preliminary

decision in the form of a letter advising Petitioner that his

application had been denied. As grounds, the Board stated that

Petitioner had received a raw score of 67 with five points

awarded for Veterans Preference on the Principles and Practice

portion of the examination. The letter further explained that a

raw score of 70 or above was required in order for his score on

the Georgia examination to be recognized in the State of Florida

and that "Chapter 471, F.S. does not provide for awarding of

points for Veterans Preference." The denial of the application

prompted Petitioner to bring this action.

3. Petitioner is a graduate of, and holds a bachelor's

degree in civil engineering from, the Georgia Institute of

Technology. He has a record of four years active engineering

experience of a character indicating competence to be in

responsible charge of engineering. The parties have also

stipulated he is of good moral character, and he has never been

under investigation in another state for any act which would

constitute a violation of Chapters 455 or 471, Florida Statutes.

4. Petitioner passed the Fundamentals portion of the

professional engineering examination administered in 1973 by the

State of Georgia. He obtained a score of more than 70.

5. In April 1988, Petitioner took the Principles and

Practice portion of the examination. A grade of 70 was required

to pass the Georgia examination. Petitioner received a grade of

67 on the initial scoring of the Principles and Practice portion

of the examination, plus a five-point Veterans Preference credit,

for a total grade of 72. The Veterans Preference credit is

provided by Georgia law to all candidates who are members or

former members of the Armed Forces of the United States and meet

certain service requirements. In Petitioner's case, he had

served eight years on active duty as a member of the United

States Naval Reserve, and he was honorably discharged as a

Lieutenant on July 3, 1969, upon expiration of his active duty

commitment. At least ninety days of his active duty military

service was during wartime or at a time when military personnel

were committed by the President of the United States.

6. The examination administered by the State of Georgia in

April 1988 was a national examination published by the National

Council of Examiners for Engineering and Surveying, and it was

identical to the examination administered by the State of Florida

at that time. Florida, like Georgia, requires a grade of 70 to

pass the examination, but it does not provide a Veterans Credit

for service to candidates who are members or former members of

the Armed Forces of the United States. Therefore, in the State

of Georgia, a veteran can pass the examination with a raw score

as low as 65. To this extent, the two examinations are not

substantially equivalent.

7. Among other things, Petitioner pointed out at hearing

that he needed only three points to achieve a passing grade on

the Principles and Practice portion of the examination.

Therefore, he concluded that the awarding of that amount of extra

points for being a veteran amounted to only a single standard

deviation, and thus the extra points were immaterial in relation

to the overall score. However, the Board does not construe this

three-point deficiency as being "immaterial," and had Petitioner

received the same score in Florida, he would not have passed the

examination.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties hereto pursuant to

Section 120.57(1), Florida Statutes.

9. As the party seeking licensure as a professional

engineer, Petitioner must prove by the preponderance of the

evidence that he is entitled to the requested relief. See ,

e . g ., Fla. Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778,

788 (Fla. 1st DCA 1981).

10. Section 471.015(3), Florida Statutes, provides in

relevant part as follows:

(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.

11. The Board interprets the term "substantially the same"

to mean that the out-of-state examination must be equal to the

Florida examination in all material respects. One such respect

is that the raw scores attained by an out-of-state candidate must

be equal to those required to achieve a passing grade in Florida.

This means that a raw score of at least 70 is required on each

part. See Rule 61G15-21.004(2), Florida Administrative Code.

This interpretation of the law, while not favorable to

Petitioner's cause, falls within the range of possible

interpretations and is not clearly erroneous. See , e . g ., Board

of Medical Examiners v. Durrani , 455 So. 2d 515, 517 (Fla. 1st

DCA 1984).

12. The parties have stipulated that the criteria for

licensure in both Georgia and Florida in 1988 were the same, that

is, a candidate must have received a grade of 70 or above on the

Principles and Practice portion of the examination. They have

futher stipulated that Petitioner received a raw score of 67.

Since he failed to obtain a raw score of at least 70, he did not

pass an examination substantially equivalent to the Florida

examination. Compare Stephen A. Cohen v. State Bd. of

Accountancy , DOAH Case No. 80-2332 (Bd. of Accountancy, September

11, 1981); Freedman v. State Bd. of Accounting , 370 So. 2d 1168

(Fla. 4th DCA 1979); Sutto v. Board of Medical Registration and

Examiners , 180 N.E. 2d 533 (Ind. 1962)(the term "substantially

equivalent" means "that which is equal in essential and material

elements"). This being so, Petitioner's request for licensure by

endorsement must be denied.

13. In reaching the above conclusion, the undersigned has

given careful consideration to Petitioner's arguments. Among

others, he points out that while there is no provision in Florida

law, and specifically Chapter 471, Florida Statues, which

provides for the awarding of Veterans Preference points on a

professional licensure examination, under the principles of

comity, the State of Florida is required to recognize the points

awarded by the State of Georgia. In the absence of any

supporting authority for this proposition, however, the

contention has been rejected.

14. Petitioner also contends that under a string of federal

cases interpreting patent law, the doctrine of equivalency does

not require complete identity for every purpose and every

respect. See , e . g ., Ziegler v. Phillips Petroleum Co. , 483 F.2d

858 (5th Cir. 1973). By analogy, he asserts that a score of 67

is so close to a 70, that is, it is no more than one standard

deviation, that the addition of veterans points is insufficient

to rise to the level of a substantial difference. This

interpretation, however, is contrary to the permissible

interpretation accorded the statute by the Board.

15. Petitioner further contends that he is entitled to

licensure under the terms of Section 471.015(1), Florida

Statutes, which requires that the Board "license any applicant

who . . . has passed the (national) licensing examination."

Subsection (3)(a) of the same statute, however, requires that the

national examination be "substantially equivalent to the

examination required by s. 471.013." Because the Georgia

examination varies in a material respect from the Florida

examination by allowing a veteran to receive a passing grade with

a raw score as low as 65, the Georgia examination cannot be said

to be "substantially equivalent."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Board of Professional Engineers enter a

Final Order denying Petitioner's request for licensure by

endorsement as a professional engineer.

DONE AND ORDERED this 25th day of November 1997, in

Tallahassee, Leon County, Florida.

____________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 1997.

COPIES FURNISHED:

Joseph M. Mason, Jr., Esquire

Post Office Box 1090

Brooksville, Florida 34605-1900

Edwin A. Bayo, Esquire

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32399-1050

Angel Gonzalez, Executive Director

Board of Professional Engineers

1940 North Monroe Street

Tallahassee, Florida 32399-0755

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

fifteen days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

Board of Professional Engineers.