Lawsuit challenges state regulations for engineers

Greg Mills. Photo by Jeremy Duda | Arizona Mirror

The owner of a small engineering consulting firm is going to court to challenge state regulators’ attempt to discipline him for practicing without a license, arguing that they have no right under the Arizona Constitution to regulate his business.

Greg Mills, who owns Chandler-based Southwest Engineering Concepts, filed a lawsuit on Thursday in Maricopa County Superior Court against the Arizona Board of Technical Registration. The board regulates a handful of industries, including various types of engineers.

Mills is represented by the Institute for Justice, a libertarian, free-market legal advocacy organization that often opposes occupational licenses requirements.

The dispute stems from a complaint filed in May by a client who was upset that Mills increased his cost estimate, which the lawsuit says was due to the customer adding new specifications. The client, who said he did not initially realize Mills was unlicensed, submitted a complaint to the board asking it to hold Mills “accountable for unlicensed work” and to order a full repayment of the more than $2,000 he’d paid to Southwest Engineering Concepts.

At a meeting in October, the board found that Mills had illegally failed to register himself and his firm. It also concluded he had violated a law prohibiting people from practicing or offering to practice engineering without the proper licensing and registration, and by presenting himself as a licensed professional. The board found that Corporation Commission records and Mills’ website show that he’d promoted himself as an engineer since 2007.

The board voted to impose a fine of $6,000 and asked him to sign a consent agreement agreeing to not practice engineering in violation of state law. Mills refused to sign the agreement.

“They want to put me out of business, and I believe that is an outrageous overreach for the state to do that,” Mills said at a press conference on Thursday outside the historic Maricopa County courthouse in downtown Phoenix.

The lawsuit argues that the board’s attempt to regulate and discipline Mills violates the Arizona Constitution on several fronts. 

It alleges that the board violated Mills’s right to make a living, as well as his right to free speech, by attempting to bar him from calling himself an engineer. The suit argued that the statutory definition of “engineer” is unconstitutionally vague, and said even the board’s engineers had a difficult time determining whether Mills fell under it. 

One of the two engineers who evaluated the Mills case for the board said he wasn’t qualified to determine whether the specific services Mills provided could only be performed by a licensed engineer, and recommended further evaluation by an electrical or mechanical engineer. Both experts, however, concluded that Mills advertised himself as a professional engineer, in violation of state law.

The suit also argued that the broad latitude that the board has in interpreting that vague definition violates the separation of powers between the branches of government. 

State law defines “engineering practice” as “any professional service or creative work requiring engineering education, training and experience and the application of special knowledge of the mathematical, physical and engineering sciences.”

The Board of Technical Registration declined to comment, though Executive Director Melissa Cornelius said it will “have a full and robust defense.”

Furthermore, Mills argued that there’s no good reason why the Board of Technical Registration and the State of Arizona should require him to get a license in the first place. Unlike engineers who build bridges, roads and buildings, Mills’s work poses no threat to public safety, he said.

Mills provides electrical and mechanical engineer services, including medical devices, consumer electronics and aerospace components. He said he deals in small-voltage devices akin to cell phones, watches and pedometers. 

The lawsuit noted that Mills has built LED light arrays and control panels for them, sensors that help people improve their basketball shot, and systems that measure the distance and speed of thrown baseballs and footballs. He doesn’t design, analyze, test or build anything requires “signed and stamped plans,” the lawsuit said.

Mills is an engineer as the word is commonly understood, the lawsuit asserted. And he has more than 30 years’ worth of experience in the field of electronic engineering, argued Institute for Justice attorney Paul Avelar, who represents Mills. But Mills almost certainly does not qualify to apply for a license, he said.

State law exempts engineers who work for manufacturers and public service corporations from the licensing requirement. Because Mills spent the bulk of his career working for such companies in Wisconsin and Arizona, he’s never needed a license. Now, he heads up his own company and no longer falls under that exemption.

Avelar said 80 percent of engineers, which amounts to thousands of Arizonans, do not have licenses.

“The only difference between them and Greg is that Greg works for himself and they work for a big company,” he said.

In order to qualify for a licensing to practice engineering, applicants must have at least eight years of experience in the field, up to five of which can be from their professional education. But that experience must be under the supervision of a licensed engineer, and Mills has never worked directly under someone with an engineering license.

If Mills wanted to qualify for a license, Avelar said he would have to go work for a licensed engineer, and shutter his business for years while he did.

“In effect, he’d have to go back and go to work for someone else, probably doing a different kind of engineering than he does now, just to qualify for all of this. That doesn’t make any sense,” Avelar said.

Even if Mills met the qualifications for a license, state law would bar him from applying for two years if the board finds that he is practicing engineering without a license. 

Mills can challenge the board’s findings before an administrative law judge. But Arizona administrative law makes it difficult to prevail in such cases, and Avelar questioned the system’s constitutionality. Even if an administrative law judge rules in Mills’ favor, the board is allowed to simply ignore that finding. Mills could appeal in Superior Court, but would face a high bar in getting a judge to overturn the board’s decision.

If Mills and the Institute for Justice prevail, the ramifications could extend far beyond one individual and his business.

A judge could rule narrowly in their favor that the board is unconstitutionally applying the law to Mills, which would likely affect only him and perhaps others in similar situations. The lawsuit largely asks the judge to prohibit the board from enforcing regulatory laws against Mills alone.

However, the lawsuit also asks wants the court to declare the statutory definition of “engineering” to be unconstitutionally vague. Avelar acknowledged that a broader ruling that strikes down the statute as a whole could eliminate the board’s ability to register any kinds of engineers, outside of those who willingly submitted themselves to the board’s authority.

“The definition of engineering practice may not affect people who voluntarily submit themselves to the Board by registering as engineers. But when it comes to unregistered people, that definition is the Board’s only jurisdictional hook over them,” Avelar told the Mirror

The legislature could render the issue moot by changing the law regulating engineers to exempt people like Mills. Such regulatory reform has been a top issue for Gov. Doug Ducey, who has successfully pushed legislation scrapping some occupational licensing requirements and recognizing licenses from out of state, making Arizona the first state in the nation to enact such a law.

Avelar said Mills and the Institute for Justice would support a move to amend the law. But he said they can’t wait while the board attempts to put Mills out of business.