JOHN K. VAN DE KAMP Attorney General
RONALD M. WEISKOPF Deputy Attorney General
AGO 84-103
No. 84-103
California Attorney General Opinion
Office of the Attorney General State of California
June 28, 1984
THE
BOARD OF ARCHITECTURAL EXAMINERS requests our opinion on the
following question:
May the
Board of Architectural Examiners delegate to the National
Council of Architectural Registration Boards the grading of
the graphic design portions of the architectural licensing
examination?
CONCLUSION
The
Board of Architectural Examiners may not delegate the grading
of the graphic design portion of the architectural licensing
examination to the National Council of Architectural
Registration Boards.
ANALYSIS
Architects
in California are licensed pursuant to chapter 3 of division
3 of the Business and Professions Code (§ 5500 et seq.)
under the aegis of a nine-membered Board of Architectural
Examiners ("the Board"). (§ 5510.) With
certain exceptions, it is illegal for anyone to practice
architecture1 in California without a certificate of
licensure issued him or her by the Board to do so. (§
5536; cf. §§ 5537.1 - 5540.) Needless to say,
"to insure that only competent individuals design
buildings" (Felix v. Zlotoff (1979) 90
Cal.App.3d 155, 161), such certification follows only upon a
qualified applicant satisfactorily passing an examination.
(§ 5551; cf. § 5500.) Thus, among the duties of the
Board is for it to "formulate and adopt a code of rules
and regulations for its government in the examination of
applicants to practice architecture in this state"
(§ 5526; cf. § 5550), and the Board has done so.
(See 16 Cal. Admin. Code, §§116-125.) Currently it
generally requires all candidates for an architectural
license to take and pass all parts (i.e., divisions) of the
four-day Uniform Architect Registration Examination
("A.R.E.")2 as well as an oral examination. (16 Cal.
Admin. Code, §§ 119, 121.) It is the Board's
authority to delegate grading of certain parts of the former
that is the concern of this opinion.
The
Uniform Architect Registration Examination is the
licensing examination utilized by all the state architectural
licensing boards in the United States. It is prepared and
sold to the individual state boards by the National Council
of Architectural Registration Boards ("NCARB"), a
nonprofit corporation incorporated under the laws of the
State of Iowa and composed of the legally constituted
architectural boards in each of the 50 states, plus those of
the District of Columbia, Guam, Puerto Rico, and the Virgin
Islands.3 Most of the examination consists of
written multiple choice questions which are machine scorable
and are so scored. However two of its divisions call for
conceptual graphic responses: a major (12 hr.!)
graphic design solution in the Building Design portion
(Division C) and three graphic vignettes in the site design
portion (Division B). Needless to say, those graphic portions
are not machine scorable, but must be evaluated by individual
examiners. Traditionally that has been done by California
architects appointed by the Board as its
"commissioners."4 They "grade" the graphic
portions of the examination based on criteria established by
the Board and either pass or fail a candidate's response
thereon under a "holistic" scoring system.
At its
annual meeting in 1983, NCARB adopted a resolution to require
the Board to administer its examination according to NCARB
guidelines. Those guidelines require that tests which employ
the use of graphic responses must be graded by graders from
all states represented at each "grading
session." In other words, NCARB is now specifically
requiring that the A.R. examination be graded by "NCARB
people," which would mean that architects other than the
California architects (who are the Board's
"commissioners") would be involved in grading
California applicants. While those California architects
would be among the "pool" of architect examiners or
graders, their happening to grade a California applicant
taking the examination at that "session" would be
purely a matter of chance. Accordingly we are asked whether
the Board may thus delegate the grading of the graphic design
portion of the licensing examination to NCARB. We conclude
that it may not.5
It has
long been settled that a state may, consistent with
constitutional guarantees, provide that only persons
possessing reasonably necessary qualifications may practice a
profession in an area of legitimate state concern
(Dent v. West Virginia (1889) 129 U.S. 114,
122-123 (dentistry); Hawker v. New York
(1898) 170 U.S. 189, 195 (medicine); Lambert v.
Yellowsley (1926) 272 U.S. 581, 596 (medicine);
Reetz v. Michigan (1908) 188 U.S. 505
(medicine); Watson v. Maryland (1910) 218
U.S. 173 (medicine); Williamson v. Lee Optical
Co. (1955) 348 U.S. 483, 488 (optometry and
ophthalmology); McNaughton v. Johnson
(1917) 242 U.S. 344, 347 (ophthalmology); Ferguson
v. Skrupa (1963) 372 U.S. 726, 728 (debt adjuster);
Martin v. Walton (1961) 368 U.S. 25
(attorney); Semler v. Oregon State Board of
Dental Examiners (1935) 294 U.S. 608 (dentistry);
Graves v. Minnesota (1926) 272 U.S. 425,
428 (dentistry); Douglas v. Noble (1922)
261 U.S. 165, 168 (dentistry); Crane v.
Johnson (1916) 242 U.S. 339 (drugless
practitioners); Collins v. Texas (1911) 223
U.S. 288 (osteopathy); Smith v. California
(9th Cir. 1964) 336 F.2d 530 (civil engineering);
Daniel v. Family Security Life Ins. Co.
(1949) 336 U.S. 220 (funeral insurance business)) and that
toward that end a state "legislature may confer a power
and delegate considerable discretion in its exercise to an
administrative board to make determinations both as to the
knowledge and skill which fit one to practice a particular
profession and as to the presence or absence of those
qualities in a particular candidate." (Henkes
v. Fisher, supra, 314 F.supp. at 106,
citing Douglas v. Noble, supra,
261 U.S. 165.) Thus, as with the scheme and purposes of
licensing statutes regulating the licensure and practice of
other professions (see generally, Bus. & Prof. Code,
divs. 2 (Healing Arts), 3, and 4 (Real Estate)), the
Architectural Licensing Law is designed to protect the public
(Stats. 1963, ch. 2133, § 1, p. 4432)6 in part by insuring
that only competent individuals obtain the requisite
certification or licensure to enable them to design buildings
or otherwise engage in the practice of architecture in this
state. (Felix v. Zlotoff, supra,
90 Cal.App.3d at 159, 161; Henkes v. Fisher
(D.Mass. 1970) 314 F.Supp. 101, 106; cf. Borror v.
Department of Investment (1971) 15 Cal.App.3d 531,
540; Cornell v. Reilly (1954) 127
Cal.App.2d 178, 184; Pennington v. Bonnelli
(1936) 15 Cal.App.2d 316, 319, 320; 64 Ops.Cal.Atty.Gen. 192,
213 (1981); 59 Ops.Cal.Atty.Gen. 537, 542 (1976).) The Act
defines the practice of architecture (§ 5500.1; fn. 1,
ante), provides that no one without certification
following examination may engage in that practice in
California (§§ 5536, 5551), and establishes a Board
of Architectural Examiners (§ 5510) with authority,
inter alia, to adopt rules and regulations regarding the
examination of applicants for certification (§ 5526).
(Cf. Felix v. Zlotoff, supra, at
161.)
Two
subsidiary questions are necessarily involved in determining
whether a particular applicant meets the standard of fitness
to practice architecture: one, what the knowledge and skill
are which fit one to practice the...