Horeczko v. State Bd. of Registration

• Decision Date: 31 July 1991
• Docket Number: No. B049131,B049131
• Citation: 232 Cal.App.3d 1352,284 Cal.Rptr. 149
• Court: California Court of Appeals Court of Appeals
• Parties: George R. HORECZKO, Petitioner and Appellant, v. STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS, Respondent.

Page 149

284 Cal.Rptr. 149

232 Cal.App.3d 1352

George R. HORECZKO, Petitioner and Appellant, v. STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS, Respondent.

No. B049131.

Court of Appeal, Second District, Division 3, California.

July 31, 1991.

Jones, Mahoney & Brayton, Paul M. Mahoney, and Richard A. Soll, Claremont, for petitioner and appellant.

Daniel E. Lungren, Atty. Gen., Sharon F. Derkum, Deputy Atty. Gen., for respondent.

CROSKEY, Associate Justice.

George Horeczko ("appellant") appeals from a judgment of the superior court which denied his petition for a writ of administrative mandamus directing the State Board of Registration for Professional Engineers and Land Surveyors ("the Board") to approve his application for permission to use the title "geotechnical (soils) engineer." We have examined the statutory scheme under which his application was submitted and we find it does not suffer from the constitutional infirmities which appellant contends are present in that scheme. The judgment is therefore affirmed.

PROCEDURAL BACKGROUND

According to appellant's petition for administrative mandamus relief, in June 1986 he filed an application with the Board for permission to use the title geotechnical engineer. Such an application is required by Business and Professions Code section 6736.1. ¹ The application was denied in July 1987 and his appeal from that denial was denied in October 1987.

Appellant then sought a hearing before an administrative law judge and the hearing took place on March 8, 1989. The Board adopted the administrative law judge's proposed decision, making it effective August 13, 1989. That decision states in part: "It was stipulated that the [appellant] does not hold a valid California registration as a civil engineer, a condition precedent to licensure as a geotechnical engineer under the provisions of Business and Professions Code Section 6736.1(a).

"...

"[Appellant] argues that the condition precedent is unconstitutional because it does not bear a rational relationship to any legitimate state purpose and denies applicant equal protection of the law and due process.

"Section 3.5 of Article 3 of the California Constitution prohibits an administrative agency from determining that a statute is unconstitutional. The practical effect of that section in this case is that [appellant's] constitutional arguments in favor of granting him a license cannot be considered in ruling on the statement of issues. Therefore, in the absence of any factual showing, there is no basis in the record on which the relief sought may be granted."

In September 1989 appellant filed his petition for administrative mandamus, the Board filed its return to the petition and appellant filed his reply. A hearing on the petition was held February 28, 1990 and on March 12, 1990 the judgment denying the petition was filed. Thereafter, appellant filed a timely appeal from the judgment.

FACTUAL BACKGROUND

As noted in footnote 1, section 6736.1 originally had a grandfather clause. In June 1986, when he filed his application for authority to use the title "soil engineer," appellant had the choice of the following three types of application: (1) grandfathering consideration only, (2) grandfathering consideration, and if not accepted under that scheme, then consideration for the board's examination, and (3) the examination only. Appellant chose the first option. That same month, he wrote to the Board requesting that it waive the requirement that he have a civil engineering license, because of what he described as over 20 years experience of "practicing 'soil engineering.' " Appellant has a bachelor's degree in civil engineering but is not registered by the state as a civil engineer.

In the "Statement of Issues" which the Board prepared for the administrative law hearing, issue number 6 states: "Grounds exist to deny [appellant's] application pursuant to Business and Professions Code sections 6763 [dealing with applications for authority to use the title 'soil engineer'] and 6736.1 ... as follows:

"A. [Appellant] has failed to provide evidence of qualifying experience pursuant to Business and Professions Code section 6736 [sic] ... in that he does not hold an unexpired, valid California registration as a Civil Engineer. Experience prior to Civil Engineer registration is not acceptable as qualifying experience.

"B. [Appellant] has also failed to provide evidence of qualifying experience as either 'in responsible charge' or 'working knowledge' as required by California Administrative Code section 426.51 in that his experience is primarily as a materials testing engineer, and his engagements 1, 2 and 4 overlap. The dates which overlap apply only once toward total qualifying experience."

At the administrative hearing, the Board moved to amend issue 6 by striking subdivision B and, over appellant's objection, it was stricken.

DISCUSSION

1. Introduction

An information bulletin put out by the Board, states in part: "The law recently created the 'soil engineering' title authority which does not restrict the practice of 'soil engineering,' but only restricts the use of the title 'soil engineer' to these [sic] so registered by the Board.... [p] The Board's role in title regulation is to identify competence but not to establish practice restrictions. Other public agencies, such as local governments, may establish practice restrictions, if it is deemed to be necessary."

Appellant argues on appeal that section 6736.1 is unconstitutional "because an unregistered civil engineer can still perform the duties of a soil engineer, but only a registered civil engineer can use the title 'soil engineer.' " (Emphasis added.) Appellant argues this is unfair because it disregards the amount of experience as a soils engineer that an unregistered civil engineer might have. As a related point, appellant argues that the striking of issue 6B, removed the issue of his competency from the administrative law hearing and focused that proceeding solely on the fact that he is an unregistered civil engineer. He argues that since he "has all of the qualifying experience establishing his competence as a soil engineer, it is arbitrary and unreasonable to deny him the title solely because he is not a registered civil engineer." Assuming arguendo that he does indeed have all of this qualifying experience, we still find nothing unconstitutional about the statutory scheme developed for granting authority to use the title "soil engineer."

2. The Challenged Scheme

The legislature's plan for demonstrated competence to use the title "soil engineer" involves the threshold requirement that the person obtain the status of a registered civil engineer. Then, that person (a) must "demonstrate a minimum of four years qualifying experience beyond that required for registration as a civil engineer" and (b) "pass the examination specified by the board." (§ 6736.1.) Under the alternative grandfather clause, the registered civil engineer must furnish "satisfactory evidence of at least six years qualifying experience in soil engineering." Thus the applicant in either scheme, by being a registered civil engineer, has already demonstrated a certain level of competence. The title "soil engineer" goes to persons with demonstrated competence beyond that.

As discussed below, we can find nothing unconstitutional with this scheme. The fact that someone like appellant may be able to practice soil engineering without actually using the title does not make the statute improper. There is an analogous situation in the profession of law, where attorneys can practice, for example, family law and criminal law without actually qualifying to use the title "certified family law specialist" or "certified criminal law specialist." Additionally, as a purely practical matter, a registered civil engineer, while working on gaining the qualifying experience necessary to obtain the title "soil engineer" would have to practice soil engineering in order to gain that experience.

3. Tests for Constitutionality

a. The General Rule

"All presumptions favor the constitutionality of a statute enacted by the Legislature; all doubts are resolved in favor of and not against the validity of the statute. Before an act of a coordinate branch of the government can be declared invalid for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable. [Citation.]" (Varanelli v. Structural Pest Control Board (1969) 1 Cal.App.3d 217, 220, 81 Cal.Rptr. 492.)

b. Due Process Considerations

"The current doctrine of judicial review of the reasonableness of regulatory legislation is that judicial examination of a statute under economic due process attack is completed when any fact or facts appear, or may be hypothesized, which the Legislature might rationally have accepted as the basis for a finding of public interest. [Citation.]" (Varanelli v. Structural Pest Control Board, supra, 1 Cal.App.3d at p. 222, 81 Cal.Rptr. 492.) Quoting from a United States Supreme Court case, (Williamson v. Lee Optical (1955) 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563) the Varanelli court noted 1 Cal.App.3d at page 222, 81 Cal.Rptr. 492 of its opinion that sometimes, an application of the statute in question may not even be helpful to the public interest sought to be served by the statute but this would not invalidate the law.

In the instant case, we find that the challenged statute reasonably relates to a legitimate governmental interest. We can infer a valid purpose for the statutory scheme--protection of the public by legislating competency in specialty areas of engineering. (See the cases discussed in Varanelli v. Structural Pest Control Board, supra, 1 Cal.App.3d at pp. 220-223, 81 Cal.Rptr. 492.) Thus, appellant's due process challenge fails.

c. Equal Protection Questions

Nor do we find a violation of the constitutional guarantee of equal protection....