PE license by exam???? 4

[CarolinaPE]

Someone asked me the other day if my PE was "by exam". How the heck else can one earn a PE license? I understand and have gotten a license in other states "by comity" but I do not know of any other way to get that first license other than taking the test.

 

[Tomcat699]

Thank you, Metengr for your comment. I will agree that if the engineer/firm has an office in the state in question, then that state has the authority to require registration, but not if the engineer/firm is only providing its service/product across state lines. Taxes are not applied to items coming in from another state. The various states accept driver’s licenses, marriage licenses, etc., from other states.

The states have no authority to establish reciprocity agreements, and are explicitly prohibited from doing so without the consent of congress (a federal law that allows them to do so). I site the following excerpts from the U.S. Constitiution as my reference:

Section I article 8: The Congress shall have Power…To regulate Commerce … among the several States, …
Section I article 9: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another….

Section I article 10: “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State ….

Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I repeat my question, can anyone tell me of a federal law that allows the states this authority?

 

[metengr]

Suggest you review the web site below for more information. The creation and regulation of PE licenses is no different than the creation of licenses for medical doctors, lawyers or other professions.

http://www.ncees.org/introduction/about_ncees/history.php

 

[Tomcat699]

I completely agree that, from a legal standpoint, there is no difference between the licensing processes for the various professions. NCEES has a very nice mission/goal in attempting to standardize the various state laws, but NCEES is a private organization and has no standing to make federal law. States may require occupational licenses for those within their state; they shall not require practitioners from another state to acquire a license in their state. Of course, if the professional in question has a physical location in multiple states then he must comply with the licensing regulations of each.
I realize the states have been doing this for years but that does not mean that it is lawful for them to do so. Unless the US congress passes (or passed one that I have been unable to find) a law allowing the states to regulate interstate professional services, then reciprocity laws are illegal.

 

[rholder98]

While I don't necessarily agree with you, Tomcat, I see your point. In that light, I submit the following counters (please keep in mind, this is not an attack, nor am I arguing with you--this is an intellectual exercise):

Reciprocity/comity laws are not illegal, because they are not agreements between states. They are laws enacted by an individual state, applying only to that state, recognizing that other states have licensing requirements sufficiently similar to their own. It is nothing more than a way of streamlining the licensure process--the applicant has already met the requirements, so he/she need not be thoroughly reviewed again. And in every state, you still must demonstrate to that state that you meet their minimum requirements.

It is the duty of states to protect their citizens. Pursuant to that duty is the right to regulate the practice of engineering, a right granted to the states by the 10th Amendment. Licensing of engineers is less about trade and commerce than about protecting the public. Therefore, I believe if it were challenged, the state’s duty to protect its citizens would take precedence over the Congress’ power to regulate interstate commerce.

To look at it another way, I’m sure our CA friends would be offended at the notion that the aforementioned “Green Mountain Boys”, with their “bought” licenses, should be allowed to design a building on a CA fault.

 

[rholder98]

Addendum: My previous post does not address temporary permits, which are granted by some states based solely on the applicant being licensed in another state. That runs counter to my argument, and I have no answer. Hmmmm. . . .

 

[Tomcat699]

Hi rholder98. I certainly do not see your comments as an attack, and personally, I enjoy a friendly argument! Of course, I also realize I am fighting a losing battle with my argument. The practice (of requiring licensure in multiple states) has been going on for years and the states receive revenue from the various professional license taxes.
I am certainly not a lawyer but I certainly thought that reciprocity laws were agreements or compacts between states. Is there any case where State "A" accepts the license of State "B" but "B" does not accept "A"'s?
I do not recall a duty of the states to protect their citizens. Could you provide a situation? Shouldn't this concern for safety also apply to drivers licenses? After all a person from rural West Texas (such as myself) couldn't be expected to handle the traffic congestion of say New York or California.

 

[Tomcat699]

Oops, I intended to ask if you could provide a citation of the law in the second sentance of my last paragraph.

 

[JAE]

Tomcat699 - All of the comity laws in the various states are independent of the other states. In other words, there is no agreement between states (I'll accept your PE's if you accept ours).

Each state simply reviews the qualifications of the state the applicant is coming from and, if similar or greater than their own, they accept those qualifications simply to streamline the process of licensure.

I also suggest that your view that -the states can't do such and such without the feds approval- actually should be reversed. The US constitution relegates most autonomy to the states, reserving only directly specified functions to the feds. (I think its the 10th amendment). This was explained to me by someone some time ago.

Similar concept to driver's licenses...states do all the licensing, get all the fees, but allow out-of-state drivers to drive with their out-of-state licenses.

 

[zdas04]

Tomcat's point struck a chord with me so I looked at the U.S. Constitution (novel idea, I know) at

http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html.

I don't see how the states get around:

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The nice thing about this version of the Constitution is they've highlighted any part that has been modified or superseeded by amendments and Article IV, Section 1 has not bee modified.

That seems to say that if New Mexico has a "public Act" that defines the requirements for designation as a PE, and I meet those requirements and am designated as a PE in New Mexico, then no other state can say I'm not a PE.

Maybe I'm just being too literal here.

David

 

[JAE]

David,

Perhaps you are basically correct here, that the states should and must allow comity when the license requirements are equal. But this still doesn't mean that the state doesn't have the right/obligation to review your qualifications, and then charge you a fee to administer that license.

 

[davidbeach]

If you have a PE is one state, you are a PE regardless of where you are. However, unless you are a PE in a particular state, that state can prohibit you from offering engineering services to the public in that state. Each state can independently regulate the practice of engineering within the borders of that state. Engineering for something to be constructed within the state, a building, a bridge, whatever, can be regulated by that state even if the actual engineering happens to be done elsewhere.

 

[zdas04]

JAE,
I'm not seeing it. Until recently you could get a drivers licence in New Mexico at 14 years old. A friend's son did that and then a few days later got a ticket in Colorado (minimum age 16) for speeding. His ticket was for speeding, not underage driving because Colorado had to honor a valid New Mexico dirvers license.

Each state has the right and obligation to develop standards for performance of a licensed task (like practicing medicine, driving a vehicle, or practicing engineering), but don't they also have to give "full faith and Credit" to someone who satisfied the legal requirements of another state?

David

 

[crossframe]

davidbeach,

I seem to recall a case where a PE, licensed in State A, stamped an engineering report, or maybe he merely signed the cover letter as John Doe, PE, for a project in State B. This person was not licensed in State B. Someone in State B reported him to the PE Board for falsely representing himself as a PE. I think the Board found him guilty, and likely assessed a fine.

I think this was presented in Alfred Pagan's column in CE News Magazine about a year or two ago. I don't remember the outcome, however. I DO remember, though, thinking that I would have to careful with how I represent myself in the future.

 

[rholder98]

That scenario has played out several times over. Those that receive the TX newsletter can read dozens of stories where a firm was fined because it listed as one of its employees, "John Doe, P.E.", where John Doe was licensed in a different state.

I live in Texas. Why don't I pay state income taxes? It's the law in Ohio (and numerous others). Why doesn't my car have to meet CA emissions standards? States set their own laws. "Full faith and credit" means states have to respect each other's laws, not adopt them. Texas cannot prevent me from practicing in Oklahoma.

As for the drivers license thing, I think it's more of an issue of states choosing to honor, rather than having to honor, each other's licenses. It is simply not practical to require a new drivers license for each state you plan to visit. Nevertheless, a state could choose to enforce just that. If New Mexico suddenly allowed 12 year olds to drive, I think Colorado would be reluctant to allow that. The scope and extent of "Full faith and credit" will soon be clearly defined, I think, with the whole marriage license issue (social issue--not for this forum).

 

[metengr]

"Each state has the right and obligation to develop standards for performance of a licensed task (like practicing medicine, driving a vehicle, or practicing engineering), but don't they also have to give "full faith and Credit" to someone who satisfied the legal requirements of another state?"


No. If you review the Professional Engineering Act in most, if not all, States the introduction of the Act states the purpose which is to protect the health, welfare and safety of the Public. The Act creates a licensing board composed of “x” number of individuals charged with granting licensure based on specific requirements. This public act is law and approved by the State Legislature. States are not obligated to regulate Professions, they choose to do so. Most States have a Department that is called Professional Regulation. A driver’s license and fishing license do not fall under this category. States regulate their own requirements and limitations for these types of licenses for their residents, and non-residents. A marriage license is like a birth certificate or death certificate and would be a matter of pubic record for the State and would fall under Article IV, Section I of the US constitution.

Reciprocity of Professional Engineering licenses lies with the Professional Licensing Board of each State, as provided by the rules of the Professional Engineering Act. As such, Licensing Boards have significant latitude in determining licensing requirements to assure protection of public health, welfare and safety. If a Board so chooses, they could grant reciprocity from another State. Licensing Boards are obligated to review a submittal for licensure to practice engineering in their particular State. If you fulfill the licensing requirements imposed by the Board, you are granted a license to practice engineering.

 

[Tomcat699]

JAE, I normally would agree with you on the states rights superseding the feds. In this case, the 10th amendment actually prohibits the states from action. At least by my interpretation of Article I, Sections, 8, 9, and 10 and Article IV section 1 of the US Constitution.
Crossframe, I suspect the engineer in question also was fined by his state board as well. At least that’s the way Texas does it (Texas Administrative Code, Title 22, Part 6, Chapter 137, Subchapter C, §137.65).
I think this issue would have to be tried in a Federal court to be resolved.

 

[Tomcat699]

Rholder98, you don’t have to pay income taxes in Ohio, et al, because you do not live in Ohio. You don’t have to pay even if you travel to, through, or even do some business in, Ohio. Same answer for the CA emissions. You may still drive your non-CA emissions car in CA.
If an engineer/firm has a office/facility in a state, then he must comply with that states license law, just as a retail company would have to collect sales taxes in any state they have a “brick and mortar” location. I cannot see any legal standing in preventing an engineer or company from offering his services or products across state lines.
Yes, the states do it and have for years but that doesn’t mean it’s correct or legal.

 

[rholder98]

True, Tomcat699, and good points. California will let me drive my car there, but with the understanding that it is for a fixed length of time, after which I will either a) go back home, or b) conform to CA's regulations in order to extend my stay for an indefinite period of time. That's kind of like the basis for temporary permits, wouldn't you agree?

But the point I was trying to make is that a broad interpretation of the "full faith and credit" clause, taken to the extreme, would mean that any law ("public Act") passed in one state has to be enforced by all states. That would defeat the concept of state autonomy.

I contend that a state gets to regulate what goes on within its borders (take speed limits, for example). Like davidbeach said earlier, regardless of where the calculations are performed, or the drawings produced, the end product of engineering takes place within the borders of a state, and is subject to that state's regulations.

Clearly, there is a line somewhere, and the question at hand is, "Where is that line?". That will have to be determined by people far more intelligent than I. Till then, I just play by the rules as I know them.

 

[JAE]

[red]Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[/red]
In other words, if the constitution doesn't specifically grant the feds a power, they don't have it...and the states keep the power.

Yes, this has been violated many times (try to find the Dept. of Education in the constitution). But its still the basis of our country - we are the United States....not a federal country managed by local governments. Each state has an autonomy, the likes of which is not found in other country's governmental forms.

[red]Article I, Section 8 - To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;[/red]
Hmmm...not sure how this applies to engineering unless you see that an engineer in state X wants to practice in state Y and that is a form of commerce. But licensing an engineer by state Y is simply their way of ENSURING that the engineer is indeed adequate to the task via the license in state X - nothing in that that violates this section in my view.

[red]Article I, Section. 9.[/red] - I don't see anything in this one

[red]Article I, Section 10 - No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.[/red]
Engineering practice is not an import of a product. It is the practice of a professional service. Don't see how this applies either.


[red]Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
[/red]

This applies to "public Acts, Records, and judicial Proceedings". I don't see how licensing engineers, or requiring a fee to license engineers, violates this section. Is licensing of engineers a "public act" of a state in the sense given here? Perhaps. But even so, if the engineer is qualified to practice engineering to the level required by the state, then comity is allowed. So the mere presence of comity means that they ARE providing for the full faith and credit of the other state.

The difference sometimes shows up in the fact that some states may perceive a unique requirement to practice in their state that is above and beyond the other state. California with high seismic, Illinois with high seismic, Alaska with perma-frost, etc. These are not denying full faith and credit, simply ensuring public safety.

That's my take on it - but as you can easily see...I'm an engineer - not a lawyer.

 

[Tomcat699]

I apologize in advance for the long post. Thank you too all that are participating in it. While I don’t expect to change anything in the law, this discussion is really helping me to understand the various aspects of the issue.

I agree with Rholder98 that the states may regulate what goes on within their borders. The problem occurs when the state tries to regulate what goes on beyond its borders. Take the California emissions regulations of vehicles as an example. I think most of us would agree that there is certainly a great deal of engineering involved in this product and it certainly can affect the individual and public safety. Fortunately, CA will allow outsiders to visit in substandard vehicles but they really don’t have to, at least not by anything I can find in the law. In other words, I believe that CA has the legal authority to allow only certain vehicles that meet CA’s standards to be operated within its borders.
On the other hand, I do not believe that CA has the authority to require that the engineers designing the vehicle must be licensed in CA. Nor do the assemblers have to belong to CA union or meet CA’s labor laws.
Merenger brings up an excellent point in that the “Professional Engineering Act in most, if not all, States the introduction of the Act states the purpose which is to protect the health, welfare and safety of the Public.”, and certainly it is within the states rights to do this. (So why will CA allow visitors to bring substandard vehicles into its borders and endanger the public? Hum?) Again, I agree that the state has the authority to enforce standards of design and construction for products within its borders. If the engineer/firm has a physical location within the state, then the engineer/firm falls under the states authority.
If a bridge or multistory building is built on site in the state of “X”, then “X” has the authority to require that its design codes, inspection laws, material specifications, welding certifications and labor laws be met.
If the bridge is built in another state and shipped to “X”, then “X” may require the bridge to meet all of “X”’s requirements, but it has lost the ability to enforce its inspection and labor laws during the construction phase unless specified in the contract.
I just cannot see how “X” can require a citizen of another state, that never even steps across the border, must be licensed in “X’.
I am also unconvinced that professional licensure is not a public act and thus outside the scope of Article IV. I am required by law to have the license to practice. My name, address, telephone number, discipline, license number, date of issue and date of expiration are all listed on the state board’s website. How much more public can it get?
As I interpret the “full faith and credit” clause, all the states must accept and recognize the laws, records and proceedings of the other states. Another state may not send a rescue party to Texas to free our death row inmates. All states accept the marriage and drivers licenses of the other states. Companies do not have to file for incorporation in each state in which they provide a service or sell a product.
JAE, I’m not sure what you mean regarding the 10th Amendment. Yes, it provides that the states or the people have all the power unless they are specifically granted to the feds or prohibited to the states.
As for weather the practice of engineering is a form commerce, I would guess that greater than 90% of engineering is performed for a business purpose or some kind of remuneration and thus commerce. Perhaps I am being too literal here but that would be my justification for referencing Article I sections 8-10
In closing this long post, I can’t pass up excerpting my fine states law on comity. ...the board has reviewed the licensing requirements of the jurisdictions listed in this paragraph and has found them to be substantially equivalent to the requirements in Texas. ... The board does not recognize any U.S. state or territory for reciprocity or comity at this time.