ALJDEC - Licensing
23F-P23-777-BTR · Board of Technical Registration · 2023-12-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
Appeal of Closure of an Application by
Jared Touchstone, Application #238371
No. 23F-P23-777-BTR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 28, 2023
APPEARANCES: Appellant Jared Touchstone appeared on his own behalf. The Board of Technical Registration was represented by Assistant Attorney General Scott Donald.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Board Exhibits 1 through 6
_____________________________________________________________________
FINDINGS OF FACT
On or about October 12, 2023, the Arizona State Board of Technical Registration (Board) issued a Notice of Hearing (Notice) setting the above-captioned matter for hearing on November 28, 2023, at the Office of Administrative Hearings in Phoenix, Arizona.
The Notice indicated the issue for hearing was whether good cause existed to modify or vacate the decision appealed for the bases identified in the Motion for Rehearing filed with the Board on September 15, 2023.
Appellant appeared and testified on his own behalf; the Board presented the testimony of Julie Pham, Licensing Manager.
The Board’s mission is to protect the public health and safety from unlicensed practice in engineering, land surveying, and other disciplines. The Board does so by ensuring that all license holders are capable and competent to practice safely. The Board reviews all applications to verify whether the applicant meets all the state standards and any applicable national standards.
The application at issue is Appellant’s May 22, 2023 Application for Waiver of NCEES Fundamentals of Land Surveying (FS) Exam (Application).
Applicants are required to provide the Board with certificates of experience (COE). COEs consist of two pages, the first is filled out by the applicant and the second by a representative from the employer.
With the Application, Appellant submitted COEs indicating he worked 40 hours per week for Civiltec Engineering Inc. under supervisor Ben Tilman. The COE did not include the timeframe of when he worked there and the page to be filled out by the employer was incomplete.
On May 25, 2023, the Board notified Appellant that the Board was processing his application for Professional Registration, but his application was not administratively complete. Appellant was directed to submit 3 COEs within 90 days of receipt of the notification.
The Board did not receive the COEs requested.
On July 13, 2023, the Board notified Appellant that the Board was processing his application for Professional Registration, but his application still was not administratively complete. Appellant was directed to submit 3 COEs and documentation from the Louisiana State Board regarding his Exam Denial within 40 days. The Board also explained that to be considered for the FS Waiver, Appellant had to meet one of the following:
Acceptable degree (to be approved by the Board) + 12 years of post-graduation experience.
Would require Official Transcripts + 3 Certificate of Experience forms showing 12 years of post-graduation experience
Licensed and Actively Engaged in another state/jurisdiction for 10 of the last 15 years
License Verification showing 10 years of Licensure + (Transcripts/COEs showing 8 years of Education and/or Experience)
The Board did not receive the COEs requested.
On August 4, 2023, Board staff emailed Appellant with a courtesy reminder that his documents were due by the 90 day notice period.
Appellant did not submit the COEs after receiving the reminder.
On or about August 31, 2023, the Board notified Appellant that the Application had been closed because he failed to meet all application requirements in a timely manner.
Appellant appealed the denial and the matter was set for hearing with the Office of Administrative Hearings.
At the hearing, Appellant indicated that some of his former employers said they would sign the COE and some refused to sign the COE. Appellant stated that one former employer told him they would not sign because they would rather hire him back at $16.00 per hour. Appellant argued that the Board’s requirement for COEs signed by former employers amounted to legalized cronyism because existing professionals could easily keep new people from entering the field.
At the hearing, Ms. Pham testified that Appellant was only being denied a waiver of the exam, but that he could still become a surveyor by taking the exam.
CONCLUSIONS OF LAW
Appellant bears the burden of persuasion.
The burden of proof at an administrative hearing falls to the party asserting a claim, right or entitlement, or an affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence.
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Statutes should be interpreted to provide a fair and sensible result.
Engineering services may not be provided by an individual who is not registered with the Board.
Ariz. Rev. Stat. section 32-123(A) provides as follows:
A person desiring to practice any board-regulated profession or occupation shall apply for registration or certification on a form prescribed by the board, subscribed under penalty of perjury and accompanied by the appropriate application fee prescribed by the board. If the evidence submitted satisfies the board that the applicant is fully qualified to practice the profession or occupation for which registration or certification is asked, the board or the executive director as authorized by the board shall grant the applicant a certificate of registration or certification, signed by the chairman and secretary and attested by the official seal. If the applicant seeks registration as a professional engineer, the certificate of registration shall list the proficiency designation in the branch of engineering in which the applicant has demonstrated proficiency.
Ariz. Admin. Code R4-30-201(A)(14) provides as follows:
A. An applicant for registration as an architect, engineer, geologist, landscape architect, or land surveyor shall submit a completed application package for professional registration that contains the following: . . . .
14. Certificate of Experience Report from the applicant’s present and past immediate supervisors. The applicant shall also provide Certificate of Experience Record from additional professional references as required by the Board. The applicant shall provide the name, address, and telephone numbers of all references. The applicant shall ensure that completed reference forms are provided to the Board, but the Board must receive them directly from the reference[.]
Ariz. Admin. Code R4-30-203(F) provides as follows:
F. All applicants who request a waiver of any examination requirement shall meet all other requirements for professional registration or in-training designation in R4-30-201 and R4- 30-202. An applicant applying for a waiver under subsection (B) shall ensure that the required documentation is forwarded directly to the Board from the national examination council.
Appellant did not show that he met the qualifications for an exam waiver or that the Board’s closure of his application should be reversed.
At no point within 90 days of the submission of the Application did the Board receive three COEs completed by Appellant’s former employers establishing his experience. Appellant also did not provide this information at the hearing, nor did he provide any witnesses who could provide information about his technical qualifications.
Consequently, Appellant’s appeal should be denied and the Board’s decision to close his application should be affirmed.
ORDER
IT IS ORDERED that Appellant’s appeal is denied;
IT IS FURTHER ORDERED that the Board’s decision closing Appellant’s application is affirmed.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, December 18, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Judith Stapley,
Board of Technical Registration
Scott Donald
Office of the Attorney General
[email redacted]
[email redacted]
Jared Touchstone
[email redacted]
By: OAH Staff