Van De Kamp, 062884 CAAGO, AGO 84-103

Docket Nº:AGO 84-103
Case Date:June 28, 1984
Court:California
 
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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...

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