Opinion
July 26, 1990
The Honorable Knox Nelson The Honorable Jay Bradford State Senator State Senator P.O. Box 5715 P.O. Box 8367 Pine Bluff, AR 71611 Pine Bluff, AR 71611
Dear Senators Nelson and Bradford:
Both of you have individually requested an opinion regarding the same question; namely, whether the Arkansas State Board of Registration for Professional Engineers and Land Surveyors (hereinafter "Board") has the authority to exempt any land surveyors from the continuing education provision of Ark. Code Ann. 17-41-206.
Specifically, Senator Bradford's request asks whether the provision (A.C.A. 17-41-206(a)(3)), which allows the Board in its discretion to exempt from continuing education requirements registered land surveyors who are sixty (60) years old (or older) or with twenty (20) or more years of experience, might constitute age discrimination in violation of federal and state laws.
The federal and state age discrimination laws prohibit employer discrimination against an employee because that employee is between forty (40) and seventy (70) years old. The purpose of these laws is to prevent and/or prohibit employers from firing or refusing to hire or promote persons because of their age alone. Persons in the relevant age range are thus in a protected class pursuant to statutory law. See 29 U.S.C. § 621 et seq. and Ark. Code Ann. 21-3-201 et seq.
Since registered land surveyors are not "employees" of the Board of Registration and the exemption from continuing legal education requirements would appear to benefit those sixty (60) years old and older, it seems that the most relevant challenge to the exempting provisions would be based upon an alleged denial of equal protection of the law. (United States Constitution Amendment 14, 1.)
The statutory scheme in question provides for the registration of land surveyors by application to the Board. A.C.A. 17-41-201 — 205. In 1987, the General Assembly enacted Act 1070 which mandated, as a condition for renewal of that registration, that the applicant certify completion of fifteen (15) hours of acceptable continuing education during the preceding twelve-month period. A.C.A. 17-41-206(a)(1). The Board may, in its discretion, renew registration of an applicant who has maintained an active status (as is contemplated in 17-41-204(c)) without completing continuing education requirements.
In addition to the temporary continuing education exemption for inactive land surveyors, then, is a permanent exemption for registered land surveyors sixty (60) years of age or with twenty (20) or more years experience as practicing land surveyors.
In an equal protection claim, any land surveyor not yet sixty (60) years old could challenge the exemption as violative of his/her rights under the Fourteenth Amendment to the United States Constitution and/or Article 2, Section 3 of the Arkansas Constitution.
It must be noted initially that under an equal protection challenge of this nature, the State need only show that the "sixty (60) year old" criteria bears a rational relationship to the purpose of the law. This standard of review as applied by a court in determining constitutionality of a law is referred to as a "rational basis" test.
The "rational basis" test applies when a suspect classification is not involved, e.g., race, and reflects judicial awareness that legislators must sometimes necessarily create distinctions between groups of classes. Ohio Bureau of Employment Services v. Hodnery [Hodory], 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 196 S.Ct. 2562, 49 L.Ed.2d 520 (1976); Holland v. Willis, 293 Ark. 518 739 S.W.2d 529 (1987). A suspect classification is not at issue here as the Act could potentially have an adverse impact upon any registered land surveyor under sixty (60), or without twenty (20) years experience.
Applying the relevant test, the question becomes:
"What is the objective of A.C.A. 17-41-206?" A review of its provisions reveals that the General Assembly intended to require active, registered land surveyors to engage in continuing education, a conclusion further bolstered by the title of the Act, to wit:
An Act . . . to require registered Land Surveyors to participate in continuing education.
What, then, can be the rational relationship to that objective of exempting persons sixty (60) years old of older from continuing education requirements? And, your question also relates to whether those surveyors practicing twenty (20) years or more may be permissibly exempted.
Given the lack of legislative history to determine legislative intent in Arkansas, we may supply possible reasons for the exemptions, as would an Arkansas court. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).
It may have been that the General Assembly presumed that those persons sixty (60) years old or older would likely have been practicing land surveyors for a long time. This construction would appear logical in light of the exemption's coverage of those surveyors with twenty (20) or more years experience.
Perhaps the General Assembly considered that surveyors sixty (60) or over would not obtain the same benefit from continuing education as those surveyors just starting their trade with many years of work remaining in their careers. Similarly, the experience exemption could reflect the view that such surveyors would not necessarily benefit from continuing education.
In any event, I am unwilling to opine that A.C.A. 17-41-206(a)(3) is constitutionally suspect, due primarily to the strong presumption of its constitutionality and the possible rational reasons for its existence, noted above.
It is worthy of note, however, that in some circumstances a successful challenge to this provision could possibly be raised as to its application. For instance, a fifty-nine (50) year old person just beginning a career as a registered land surveyor might be able to mount a successful challenge.
The foregoing opinion, which I hereby approve, was prepared by Solicitor General R.B. Friedlander.