Gaudet v. Board

• Decision Date: 13 October 2004
• Docket Number: No. 4D03-340.,4D03-340.
• Citation: 900 So.2d 574
• Parties: Joseph E. GAUDET, Appellant, v. FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Appellee.
• Court: Florida District Court of Appeals

900 So.2d 574

Joseph E. GAUDET, Appellant, v. FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Appellee.

No. 4D03-340.

District Court of Appeal of Florida, Fourth District.

October 13, 2004.

Marjorie J. Maginnis of Watterson & Hyland, P.A., Palm Beach Gardens, for appellant.

Charles J. Crist, Jr., Attorney General, John J. Rimes, III, Lee Ann Gustafson, and Paul Martin, Assistant Attorneys General, Tallahassee, for appellee.

KRATHEN, DAVID H., Associate Judge.

Joseph E. Gaudet ("Gaudet") appeals a Final Order of the Florida Board of Professional Engineers ("Board") denying his petition for licensure as an engineer by endorsement, pursuant to section 471.015(3)(a) and (b), Florida Statutes (2002). Gaudet is a 1985 graduate of Drexel University in Philadelphia, Pennsylvania, from which he earned a Bachelor of Science in Commerce and Engineering Sciences degree. Since receiving his degree, Gaudet has practiced as a full-time engineer. He obtained his engineering license from the State of Pennsylvania in 2001.

Gaudet asserted that subsections (a) and (b) of section 471.015(3), Florida Statutes, are mutually exclusive and that he qualified for licensure under both sections. Despite acknowledging that Gaudet met the examination and experience requirements for a license by endorsement in Florida, the Board concluded that he did not qualify for a license by endorsement under section 471.015(3)(a), because he did not receive a degree from a Board approved engineering program, as defined in the Board's duly promulgated rules. See Fla. Admin. Code R. 61G15-20.001(2). That was because the program of study from Drexel, in which Gaudet earned his degree, was not accredited by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology (ABET). Further, the Board determined that when Gaudet received his Pennsylvania license, that state did not require ABET accreditation for an applicant's degree program, so Pennsylvania did not have a statute that was substantially the same as Florida's and therefore Gaudet was not eligible for licensure by endorsement under section 471.015(3)(b).

Gaudet supplemented his application with a schedule of the courses he completed at Drexel University in the Commerce and Engineering Sciences program, along with a comparison of his program with ABET approved programs at other institutions. Gaudet argued that the comparison revealed Drexel's curriculum was "substantially similar" to the other universities' programs, as that term has been defined by the Board in its rules for applicants having degrees from foreign institutions. See Fla. Admin. Code R. 61G15-20.007(2),

In addition, Gaudet provided an analysis of Florida's statutes and regulations as they applied to his application, a letter from the Director of Commerce & Engineering at Drexel explaining the elements of its engineering program, and Pennsylvania's regulations for professional engineers. He again asserted that the licensing requirements for a professional engineer's license in that state were substantially similar to the licensing requirements for a professional engineer's license in Florida in 2001. Finally, Gaudet requested an administrative hearing under Chapter 120, Florida Statutes. The Board thereafter notified Gaudet that it had reviewed his supplemental information and that it did not overcome the problem which was the basis for denial. The Board then scheduled an informal hearing.

At the informal hearing, although conceding that his degree was not ABET accredited, Gaudet explained that there were extenuating circumstances and asked the Board to evaluate Drexel's educational curriculum, pursuant to section 471.013(1)(a). He argued that this evaluation would be done routinely, pursuant to rule 61G15-20.007, if he had attended a foreign school. Gaudet again claimed that such an evaluation would establish that he met the criteria under section 471.015(3)(a), as the curriculum for a Bachelor of Science degree in Commerce and Engineering Sciences from Drexel University was substantially equivalent to those programs accredited by ABET, as defined by the Board in rule 61-G15-20.007(2).

Gaudet also contended that he was qualified for licensure under section 471.015(3)(b). He argued that section 471.015(3)(b) requires a review of the Pennsylvania licensing requirements and asked the Board to review Pennsylvania's licensing statute. He maintained that Pennsylvania's licensing requirements were substantially the same as those in Florida at the time he received his Pennsylvania license in 2001.

Although Gaudet asserted that subsections 471.015(3)(a) and (b) are mutually exclusive, the Board reasoned that since Gaudet was licensed in Pennsylvania based on an educational curriculum and school not accredited by ABET, the criteria in Pennsylvania could not have been substantially the same as an ABET accredited program. Therefore, it denied Gaudet a license by endorsement under section 471.015(3)(b), as well as section 471.015(3)(a), and adopted the facts set forth in the original Notice of Denial as its findings of fact.

Judicial review of final administrative orders is authorized by section 120.68(1), Florida Statutes. Appellate courts are free to disagree with an agency on a point of law. See Southwest Fla. Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 597 (Fla. 1st DCA 2000). Although courts should give great weight to an agency's construction of a statute that it is charged with enforcing and interpreting,¹ section 120.68(7)(d) provides in material part that the court may "set aside agency action" when it finds that the agency has "erroneously interpreted a provision of law and [that] a correct interpretation compels a particular action." § 120.68(7)(d), Fla. Stat. (2002); Metro. Dade County v. Dep't of Envtl. Prot., 714 So.2d 512, 515 (Fla. 3d DCA 1998); Schrimsher v. Sch. Bd. of Palm Beach County, 694 So.2d 856, 861 (Fla. 4th DCA),rev. denied, 703 So.2d 477 (Fla.1997).

Gaudet argues that the findings of fact stated in the final order entered by the Board are not supported by competent substantial evidence. The fact cited, which the Board concedes is erroneous, is that Gaudet was licensed in Massachusetts in 1995. In reality, Gaudet was licensed in Pennsylvania in 2001. While this fact, if the Board had relied upon it in determining whether Gaudet qualified for a license by endorsement, might have been the basis for an erroneous decision, it is apparent from the record that the mistake is merely a scrivener's error, which did not affect the result. See Kolbe v. Dep't of Ins., 846 So.2d 656 (Fla.2d 2003); McCloud v. State, 765 So.2d 826 (Fla. 2d DCA 2000). The record contains the transcript of the hearing where Gaudet immediately corrected a misstatement of that fact by the Board's counsel, and Gaudet's license application, documentation of his license from Pennsylvania, and copies of the relevant Pennsylvania licensing statutes. Since the scrivener's error is clearly apparent from the record, on remand the Board is instructed to correct the error. See Mitchell v. Mitchell, 841 So.2d 564, 568 (Fla. 2d DCA 2003).

Gaudet also maintains that the Board unlawfully delegated its statutorily mandated authority when it abdicated its duty under section 471.013, Florida Statutes (2002), to adopt specific rules for reviewing and approving engineering schools and curricula to ABET. Therefore, Gaudet argues, the Final Order must be set aside and rule 61G15-20.006, Florida Administrative Code, upon which it is based, be declared unconstitutional.

Gaudet contends that the Board erroneously interpreted subsections 471.015(3)(a) and (b) in concluding that he was not entitled to a license. He argues that under section 471.015(3)(a) the Board was required to review his education and could not rely solely upon whether Drexel University's program was ABET accredited. He further maintains that under section 471.015(3)(b) the Board was required to review Pennsylvania's licensing criteria. Gaudet asserts that the Board abdicated the responsibilities mandated by the statute. He argues that the Board should have adopted rules that fully comply with its responsibility to review all degrees; that the Board could not lawfully delegate to ABET the obligations delegated to the Board by the Florida Legislature.

The Board disputes that it is required by Florida law to "conduct an independent evaluation of [Gaudet's] education" or that it is required to review domestic degrees that are not ABET accredited. The Board also argues that it was Gaudet's duty to present evidence that Pennsylvania conducted such an evaluation before that state permitted him to utilize his non-accredited educational background to qualify for a license in that state.

Chapter 471, Florida Statutes, regulates the practice of engineering in this state. The Board of Professional Engineers was created by section 471.007 and granted the authority by section 471.008 to adopt rules to implement the provisions of Chapters 471 and 455, Florida Statutes.

However, the Board is not vested with authority to expand upon its enabling statutes:

While rule adoption is a standard activity of modern agencies, rulemaking authority is not an inherent power of executive agencies. The Florida Legislature delegates to agencies the authority to adopt rules that implement, enforce, and interpret a statute through the adoption of enabling statutes. It has long been the case in Florida that the Legislature may not, in an enabling statute, provide agencies with unbridled authority to determine what the law is. A statutory delegation of rulemaking authority must declare the legislative policy or standard, be complete in itself, and limit the power delegated.

Florida APA Symposium: An Overview of the 1996 Administrative Procedure Act, 48 Fla. L.Rev. 1, 32 (Jan.1996).

In section 471.015(3), the Legislature mandated that the Board certify an individual as...