ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This appeal is from a denial by the South Carolina Department of Labor, Licensing and Regulation, Board of Professional Engineers (“Board”) of Appellant’s application for comity licensure as a Category A Professional Engineer in South Carolina. In his appeal, Mr. Brooks is requesting the ALC to overturn the decision of the Board and to grant him licensure by comity. Appellant is licensed as Professional Engineer in the State of Michigan. Appellant was licensed in Michigan in 1999 but the Board has chosen to use the standards applicable at the time of his graduation in 1986. Appellant has raised no objection to this. Appellant’s degree is in Civil Engineering Technology and not in Civil Engineering.
ISSUES ON APPEAL
A. DID THE SOUTH CAROLINA DEPARTMENT OF LABOR LICENSING AND REGULATION (“LLR”) OVERSTEP ITS AUTHORITY IN PROPOSING REGULATIONS FOR APPROVAL OF COMITY APPLICATIONS IN VIOLATION OF SOUTH CAROLINA LAW?
B. DID THE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS (“BOARD”) ACT IN ACCORDANCE WITH THE STATUTE PERMITTING APPROVAL OF COMITY APPLICATIONS?
STANDARD OF REVIEW
“The Board is an agency for purposes of the Administrative Procedures Act.” Ruocco v. S.C. State Bd. of Registration for Prof’l Eng’rs and Land Surveyors, 314 S.C. 111, 114, 441 S.E.2d 829, 831 (1994) (citing S.C. Code Ann. § 1-23-10(1) (1986)). Under the APA, "[t]his court will not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Tennis v. South Carolina Dep’t of Soc. Serv., 355 S.C. 551, 557, 585 S.E.2d 312, 315 (2003) (quoting Leventis v. South Carolina Dep't of Health & Envtl. Control, 340 S.C. 118, 130, 530 S.E.2d 643, 649-50 (Ct.App.2000); S.C. Code Ann. § 1-23-380 (Supp.2002)).
We will not overrule an agency's decision unless substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Tennis at 557 – 558, 585 S.E.2d at 315-316 (quoting Leventis, 340 S.C. at 130, 530 S.E.2d at 650; citing S.C. Code Ann. § 1- 23-380(A)(6) (Supp.2002)).
"Substantial evidence is not a mere scintilla of evidence nor evidence viewed blindly from one side, but is evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Id., 355 S.C. at 558, 585 S.E.2d at 316 (quoting Waters v. South Carolina Land Res. Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996)). "The possibility of drawing two inconsistent conclusions from the evidence will not mean the agency's conclusion was unsupported by substantial evidence." Id. "Furthermore, the burden is on appellants to prove convincingly that the agency's decision is unsupported by the evidence." Id. (citing Hamm v. AT & T, 302 S.C. 210, 394 S.E.2d 842 (1990)).
“In reviewing a final decision of an administrative agency under S.C. Code Ann. § 1-23-380, this Court essentially sits as an appellate court to review alleged errors committed by the agency.” Kiawah Resort Associates vs. South Carolina Tax Comm’n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (citing Ross v. Medical Univ. of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994) (an administrative appeal must be confined to the record except in cases of alleged irregularities in the procedure before the agency not apparent on the record). Therefore, this Court has a limited scope of review and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency. Kiawah Resort Associates at 318 S.C. 505, 458 S.E.2d 544 (citing Cook v. South Carolina Dept. of Highways and Pub. Transp., 309 S.C. 179, 420 S.E.2d 847 (1992) (issues not ruled on by the trial court will not be addressed on appeal); 73A C.J.S. Public Administrative Law and Procedure § 191 (1983) (as a general rule, questions that have not been raised or urged in the proceedings before the administrative agency will not be considered by the court on review of the order of such agency).
DISCUSSION
A. THIS COURT DOES NOT HAVE JURISDICTION OVER THE ISSUE OF WHETHER AN AGENCY HAS AUTHORITY TO PROMULGATE A PARTICULAR REGULATION.
South Carolina Code Ann. § 1-23-150 contains the procedure to be followed when contesting an agency’s authority to promulgate a regulation. S.C. Code Ann. § 1-23-150 (2004) states:
(a) Any person may petition an agency in writing for a declaratory ruling as to the applicability of any regulation of the agency or the authority of the agency to promulgate a particular regulation. The agency shall, within thirty days after receipt of such petition, issue a declaratory ruling thereon.
(b) After compliance with the provisions of paragraph (a) of this section, any person affected by the provisions of any regulation of an agency may petition the Circuit Court for a declaratory judgment and/or injunctive relief…
(Emphasis added.)
The Supreme Court makes it clear that one does not have to petition for a rule change pursuant to S.C. Code Ann. 1-23-126 (2004) prior to seeking judicial review pursuant to S.C. Code Ann. § 1-23-150, however the Court is clear in that such actions must be brought pursuant to the statute in the Circuit Court. See Charleston Television, Inc. v. S.C. Budget and Control Bd., 301 S.C. 468, 392 S.E.2d 671 (1990). Therefore, the Administrative Law Court does not have jurisdiction over the issue of agency authority to promulgate regulations. However, even if this Court did have jurisdiction over this issue, it is not properly before the Court because it was not raised in, or ruled upon, in the hearing before the Board. See Kiawah Resort Associates, 318 S.C. at 505, 458 S.E.2d at 544.
B. THE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS (“BOARD”) DID ACT IN ACCORDANCE WITH THE STATUTE PERMITTING APPROVAL OF COMITY APPLICATIONS.
S.C. Code Ann §44-22-230(C) (Supp. 2004), as amended, is the statute which permits approval of comity applications for licensure as a Professional Engineer, as follows:
A person who holds a certificate of registration to engage in the practice of engineering or land surveying issued on comparable qualifications from a state, territory, or possession of the United States, or of a foreign country, must be given comity consideration. The applicant is required to take such examinations as the board considers necessary to establish that his qualifications meet the requirements of this chapter and the regulations promulgated by the board; however, a land boundary surveying applicant must pass a written examination including questions of law, procedures, and practices pertaining to the practice of land boundary surveying in this State.
(Emphasis added.)
The word “consideration” as used in the context of this statute has the usual and plain meaning of careful thought upon which a decision may be based and does not mean that comity licensure is automatic. “Comparable” as used therein is construed by this Court to mean “not less than (emphasis added) those specified by the applicable licensure act in effect in the State of South Carolina at the time such other license was issued.” See S.C. Code of Regulations R.49-203(A)(3) (2004); see also Bass v. Isochem, 365 S.C. 454, 471, S.E.2d 369, 378 (Ct. App. 2005) (“If the language of an act gives rise to doubt or uncertainty as to legislative intent, the construing court may search for that intent beyond the borders of the act itself”). In this case the search was limited to Regulation 49-203(A)(3). Agencies are authorized by law to make regulations, and regulations have the force and effect of law. See S.C. Code Ann. § 1-23-10 (2004).
S.C. Code Ann. §44-22-220(C)(3) (Supp. 2004) defines the criteria an applicant with a TAC/ABET engineering technology degree must meet in order to be licensed in South Carolina as a Category A professional engineer, as follows:
…The minimum evidence satisfactory to the board that the applicant is qualified for licensure as a Category A professional engineer is:
…(3) graduation in a TAC/ABET accredited engineering technology curriculum of four or more years from a school or college approved by the board as being in satisfactory standing, supplemental post graduate studies in approved engineering science courses sufficient to equate the applicant's cumulative program of formal engineering study as being substantially equivalent to an EAC/ABET accredited program, a specific record after graduation of eight or more years of progressive experience in engineering work of a character satisfactory to the board and which indicates that the applicant is competent to practice engineering, passing a written or electronic examination designed to show knowledge and skill approximating that attained through graduation in an EAC/ABET accredited four-year engineering curriculum, and then passing the written examination required of applicants in item (1).
(Emphasis added.)
Appellant argues that the Board should not have applied this statute in examining Appellant’s application. It is hard to imagine how better to measure Appellant’s qualifications than to compare his educational background to South Carolina’s requirements. The Board did this based on the testimony of its consultant, Dr. Walter Castro.
Chairman Tibshrany states (Tr. at 37, lines 18-25; and at 38, line 1):
When we have an applicant that is not a graduate of an accredited EAC/ABET school, we forward transcripts that have been submitted with the application to Dr. Castro for evaluation. He gives us a report back that it’s either equivalent, substantially equivalent or it is not and he lists the deficient areas if it is not.
Looking at the entire record, it is clear that Dr. Castro compared Appellant’s educational background to the EAC/ABET requirements as required by §40-22-220(C)(3) to determine whether Appellant’s education was substantially equivalent (Tr. at 33, lines 16-19).
As appears in the Transcript of the hearing at page 28-30, the Appellant’s educational history reveals a deficiency of 3 hours of differential equations, 14 semesters of engineering science, and 11 hours of engineering science. This testimony clearly put the substantial evidence before this Court which requires affirming the decision of the board.
Appellant did not raise the Board’s findings of educational deficiencies on appeal, therefore this issue is not before the Court. Kiawah Resort Associates at 318 S.C. 505, 458 S.E.2d 544.
Appellant argues that he should be licensed by comity based on a comparison of the Michigan licensing statute to the South Carolina licensing statute, not on a comparison of Appellant’s education background to South Carolina’s licensing statute. The fact that Appellant was licensed in Michigan without the requirement of completing the semester hours in the categories listed in the preceding paragraph negates Appellant’s argument that he should be granted a comity license by merely comparing the Michigan licensing statute to the South Carolina licensing statute. It proves that though the statutes are similar, the underlying requirements in South Carolina are greater than those in Michigan. Thus, a comparison of the statutes alone does not reveal the similarity of the underlying requirements.
It defies reason to assume that South Carolina would allow an applicant licensed in another jurisdiction to be licensed in South Carolina with qualifications less stringent than that required of South Carolina residents. The Board’s decision in this case was based on substantial evidence. There is no evidence in the record to show that the Board’s findings, inferences, conclusions or decisions are in violation of constitutional or statutory provisions; in excess of the statutory authority of the agency; made upon unlawful procedure; affected by other error of law; clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See Tennis, 255 S.C. at 557, 585 S.E.2d at 315.
Appellant’s testimony indicates that he should be granted a license by comity because of his extensive experience. There is no provision in law for licensing based on experience alone and the Board was correct in refusing to license on this ground. Therefore, this Court will not overrule the Board’s decision in this case.
ORDER
THEREFORE IT IS ORDERED that the decision of the South Carolina Department of Labor, Licensing and Regulation, Board of Professional Engineers and Land Surveyors is hereby AFFIRMED.
AND IT IS SO ORDERED.
______________________________
JOHN D. MCLEOD
Administrative Law Judge
November 16, 2005
Columbia, South Carolina
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