2020 Bills Affecting Professional Practice in Arizona

By P. Douglas Folk / Feb 24, 2020

Arizona’s legislature is considering a number of bills that could seriously undermine the work of the Board of Technical Registration and protection of the public. A quartet of bills making its way through the Arizona Senate have passed their first committee votes, and they are soon headed to the floor for a vote by the Committee of the Whole. SB1274 represents the most immediate threat to the proper regulation of professional practice but all four bills would have a negative impact on professional practice in Arizona. Supporters of good government and public safety should contact their legislators to express support for the Board of Technical Registration (BTR or Board) and their position on these bills.

SB1274: Restructuring Membership of BTR and Other Licensing Boards

Supporters of SB1274 have incorrectly suggested that Arizona’s BTR is violating US Supreme Court decisions requiring greater public representation on state licensing boards. That position statement is untrue, and it distorts the Supreme Court’s holding in the North Carolina Dental Examiners antitrust case. The Dental Examiners Board in North Carolina violated antitrust laws because its Board did not have effective oversight by elected officials and it abused its authority in an effort to restrict competition for dentists by unlicensed persons offering an unregulated service, tooth whitening. The North Carolina case has nothing in common with the licensing board for design professionals in here in Arizona.

Arizona’s BTR meets all requirements set by the US Supreme Court to comply with federal anti-trust law:

  • The law regulating the licensing of design professionals was enacted in legislation based on uniform national standards, not the regulated professions,
  • The BTR is a multi-disciplinary board, whose members are vetted and appointed by elected officials. None of the regulated professions comprise a majority of the Board members
  • The Board’s rules are limited to implementation of its enabling legislation and these rules must be reviewed for their impact on business approved by the Governor’s Regulatory Review Council before they take effect
  • The Board’s rule-making and disciplinary procedures are limited by the Administrative Bill of Rights, Administrative Procedures Act and Administrative Review Act to protect the civil liberties of anyone appearing before the Board
  • Persons who dispute the Board’s actions have a statutory right to a hearing before the Office of Administrative Hearings—a completely independent state agency—and rights to appeal to the courts if they disagree with a decision of OAH or the Board

These measures, and many more, assure that our Board of Technical Registration meets all state and federal constitutional requirements, and is fully compliant with federal anti-trust law precedent.

The current version of SB1274, as amended in the Commerce Committee, will put six public members on the Board—a majority of non-registrants—all of whom are appointed by the Governor. The Bill also reduces representation by professional engineers from three members to one member and removes one architect from the board. The other professions would rotate through the other professional seats on the Board. The professional members of the Board will be reduced to the minority.

The bill also prohibits Board members from serving past the end of their terms. Under current law, Board members serve until their replacements have been appointed. For the last several years, the Governor has not been timely in appointing replacements for the current Board members. If SB1274 were to pass, existing Board members whose terms have expired may be required to step down immediately. If the Governor did not appoint new professional members to the Board, it would cease to function as we currently understand it. With six public members, BTR would have a quorum to function, but it would no longer provide the balance and technical competence that presently exists with representation by the professional members of the Board. If the sponsors are unwilling to compromise, this bill must be opposed in its current form.

SB1298: Definition of Engineering Practice

As introduced, SB1298 reduced the scope of the definition of “engineering practice” in a way that puts the burden on the Board to prove that life safety is at issue in every case before it can require an engineer to be licensed. It would also eliminate the advertising or offer of engineering services from the scope of the “engineering practice” definition, which would restrict the Board’s legal authority to prevent unauthorized practice. If enacted, this bill would undercut the Board’s ability to regulate the unauthorized practice of engineering by unlicensed individuals.

However, a strike-all amendment introduced by Senator Mesnard on February 18th may yet correct the problems in the original bill and warrant favorable consideration from the professional community. The strike-all amendment would replace the current definitions of “engineer” and “engineering practice” with new definitions that track the NCEES model law. The amendment also emphasizes the linkage to protection of public health and safety in licensing engineers and, for that reason, should be supported. 

SB1142: Criteria For Regulation of Non-Health Care Professions

SB1142 would change the sunrise and sunset standard for administrative agency and board review. It also transfers the legislative authorization for regulating non-health care professions from Title 32, Chapter 44 to Title 41, which could pave the way in future sessions for rolling the Board of Technical Registration and other licensing boards into a new “super agency” under the Department of Administration, something that has been considered and rejected in prior years because it would weaken professional licensing regulation.
In its current form, this bill would redirect the sunrise/sunset process to downgrade or repeal professional licensing. This bill should also be opposed in its current form, if only to prevent a future attempt to consolidate the BTR into the Department of Administration.

SB1507: Administrative Review of Agency Decisions

SB1507 will undermine the role of administrative agencies including the BTR in the enforcement of licensing statutes and agency regulations. This bill would allow anyone appealing an agency determination—including denial of registration or imposition of discipline—to obtain a new trial regardless of the findings of the administrative law judge. The findings of the administrative law judge, agency, or board from with the appeal was taken would not be given any deference by the court, which is contrary to current practice.

Under our current system of professional regulation, a person who disputes a decision or proceeding by an administrative agency or board like the BTR is entitled to have the case decided by the Office of Administrative Hearings (OAH). OAH is entirely independent of the Board of Technical Registration, it is staffed by highly trained administrative law judges, and its independence assures due process and fundamental fairness. OAH provides a check and balance on the BTR that assures the public that the Board is not protecting the professions or unfairly discriminating against non-registrants in their rulings.

Hearings conducted by the Office of Administrative Hearings are governed by rules of procedure, and decisions issued by the administrative law judges are based on documentary evidence and sworn testimony. While OAH decisions may be appealed to the Superior Court, in most cases, the appealing party is not entitled to present new evidence. The appeal is decided based on the record made in the OAH hearing. This system balances fairness and efficiency in the resolution of administrative law cases. It has worked well for Arizona, and, for that reason, SB1507 should be opposed.