Wisconsin Attorney General Opinions

Opinion # OAG 12-87

19 March 1987

Architects And Engineers;
Licenses And Permits;

The Examining Board of Architects,
Professional Engineers, Designers and Land
Surveyors may not promulgate a rule requiring
out-of-state applicants for certification as
land surveyors to pass an examination
concerning Wisconsin practices and procedures
if they possess a valid certification in
another state.

MARLENE CUMMINGS, Secretary
Department of Regulation and Licensing

Your predecessor asked whether the Examining
Board of Architects, Professional Engineers,
Designers and Land Surveyors may adopt a rule
requiring land surveyors applying for
Wisconsin registration under the reciprocity
provision to pass an examination on knowledge
of Wisconsin practice and procedures.

The board is concerned that surveyors from
other states applying for Wisconsin
registration may not know Wisconsin
practices and procedures.

The proposed rule would read:

   An applicant applying for registration
   as a land surveyor under Section
   443.06(2)(d), Stats. shall show
   knowledge of Wisconsin land
   surveying practices and procedures
   by completing the 4 hour "state"
   part of the Principles and Practice
   Examination as described in
   Section 6.04, Wis. Adm. Code.

The pertinent portion of
Section 443.06, Stats., provides:
 

   443.06(2)

   . . . The Section may grant a
   certificate of registration as a land
   surveyor to any person who has submitted
   to it an application, the required fees
   and one or more of the following: . . .

   443.06(2)(d)

   An unexpired certificate of registration
   as a land surveyor issued to the
   applicant by the proper authority in any
   state or territory or possession of the
   United States or in any other country
   whose requirements meet or exceed the
   requirement for registration in this
   Subsection.

It is my opinion that the board may not
validly promulgate the proposed rule.

Section 443.06(2) specifies the conditions
under which the land surveyors Section
may grant a certificate of registration
to land surveyors.

Several alternative combinations of
prerequisite qualifications are provided
and three of the alternative combinations
require the taking and passing of a written
and oral examination.

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The reciprocity alternative under
consideration does not.

It merely requires a valid certificate of
registration issued by another state,
territory or possession of the United States
or any other country whose requirements for
certification equal or exceed Wisconsin's
requirements for certification.

The statutory provision under consideration
provides that the Section "may grant a
certificate" if one of the alternative
combination of prerequisite qualifications is
met. While generally the word "may" in a
statute will be construed as permissive, it
will not be so construed where a different
construction is demanded by statute in order
to carry out the intent of the Legislature.

Miller v. Smith
100 Wis.2d 609,
302 N.W.2d 468 (1981).

It is my opinion that the statute may not be
read to be permissive rather than mandatory.

If the statutory provision is not given a
mandatory construction, the board could
legally decide to withhold a certificate
of registration to an applicant even
though he or she met the qualifications
established by the Legislature.

An examining board may not lawfully deny an
applicant for licensure, under a reciprocity
statute, based upon a board rule establishing
an additional qualification for licensure, if
the applicant otherwise meets the criteria
established by statute, Application of State
Board of Medical Examiners, 201 Okl. 365, 206
P.2d 211 (1949), and an applicant under such
circumstances may compel board action by
mandamus.

Levin v. Board of
Medical Examiners
of California,
74 Cal. 104,
239 P. 410 (1925).

The Legislature has established the criteria
for the granting of a certificate of
registration applied for under
the reciprocal provision.

The criteria are explicit.

The proposed rule would add a condition not
contemplated in the statute, and thus would
not be a correct interpretation of the law.

Section 227.10(2) provides:

   No agency may promulgate a rule
   which conflicts with state law.

And Section 227.11(2)(a) provides
that a rule of an agency

   is not valid if it exceeds the
   bounds of correct interpretation.

This opinion is consistent with one issued in
1978, OAG 73-78, wherein it was concluded
that the board could not validly promulgate a
rule requiring non-resident land surveyors
applying for reciprocal registration under
the same statutory provision, then Section
443.02(3)(a)4., to take and pass the same
examination as given to state applicants.

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Reliance may be placed on an attorney
general's interpretation of a statute where
the statute has been amended or reenacted
without a material change in the language
construed by the attorney general.

Town of Vernon v. Waukesha County,
99 Wis.2d 472, 479,
299 N.W.2d 593 (Ct.App. 1980), affd,
102 Wis.2d 686,
307 N.W.2d 227 (1981).

In this case, chapter 443 has been amended at
least fifteen times by the 1979, 1981 and
1983 Legislatures, including a vast revision
by chapter 167, Laws of 1979, but the
provision under consideration has
remained unchanged.

I must therefore conclude that the
Legislature concurs with the 1978 opinion.

The current request for an opinion may have
been prompted by the last paragraph in the
1978, OAG 73-78, opinion which reads:

The legitimate concern of the Board that
out-of-state applicants should be
knowledgeable regarding land surveying
procedures and practices peculiar to
Wisconsin probably would justify a rule
requiring applicants to demonstrate that
knowledge, by examination or otherwise,
but only to a reasonable degree
consistent with the public interest.

The quoted language from the 1978 opinion is
inconsistent with the opinion itself and
is inconsistent with the conclusion
I reach in this opinion.

It is an incorrect statement of the law and
the quoted language is withdrawn.

DJH:WHW

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