Lawsuit Challenges Arizona Engineering Licensing Law

Greg Mills turned a life-long interest in electronics into a career as an engineer. Greg was a teenage techie and tinkerer with all things electronic. After spending years in college studying to be an electrical engineer, he started his career as a lab tech at Rayovac. From there, he worked his way up through manufacturing companies like Unitech, where he was an engineer, Spectrum Astro and General Dynamics, where he was a “responsible design engineer,” and AZ Electronic APPS, where he was the “principal engineer.” Throughout his decades-long career, Greg designed, analyzed, tested, and built electronic circuits for everything from satellites to flashlights.

In 2008, Greg became an entrepreneur, opening his own business, Southwest Engineering Concepts, LLC (“SOENCO”). For 12 years, SOENCO was a success, until May 2019, when the Arizona Board of Technical Registration (ABTR) alleged Greg was in violation of Arizona’s engineering licensing law. Greg had been reported by a disgruntled customer over a price dispute.

Despite Greg’s decades of proven safe practice and experience, the ABTR—a group comprised of registered engineers—wants to put him out of business and deprive him of his right to call himself what he truly is—an engineer. They also want to fine him at least $6,000 just for doing the job he has done for decades.

By its unconstitutional interpretation of the law, the Board argues that anyone advertising themselves as an engineer or doing engineering of any form—even something as simple as designing a battery-powered flashlight—must first become a licensed engineer, also known as being a “registered” or “professional” engineer.

ABTR’s Path to Compliance is Both Irrational and Unconstitutional

According to the ABTR, there are only two ways for Greg to get back to work. Neither are reasonable or constitutionally permissible.

The first is to obtain a license and become a registered engineer. To do that, Greg would have to close SOENCO and then find a job working as an employee of a currently-registered engineer for the next eight years.

The second option is even more onerous and irrational. Arizona, like 48 other states, has an exemption written into its engineer licensing law allowing companies that manufacture products to employee unlicensed engineers. Those engineers can call themselves an “engineer” and engage in engineering. And yet, Arizona’s exception does not require that the manufacturing company have any licensed engineers on staff to provide oversight or guidance. Thus, by being a product manufacturer—rather than just a product designer, as Greg is—Arizona’s licensing law does not apply. So Greg’s second option is to shutdown SOENCO and spend the rest of his career working as an employee of a manufacturer.

Thus, according to the ABTR, the only way Greg can legally work as an engineer and call himself an engineer is if he goes back to work for someone else; if Greg wants to work for himself, he has to be licensed.

If Greg is qualified to work for a manufacturer, he is qualified to work for himself.

The Board’s actions against Greg not only violate his right to earn a living, but they also make it impossible for small businesses, who cannot afford to hire their own full-time employee engineers, to work in innovative areas by working with engineers like Greg.

ABTR’s Overly Broad Interpretation of “Engineering”

The vast majority of engineers working in the United States—80 percent by one estimate—are not licensed. ³  This is because they do not have to be registered to practice their occupation, so the burdens of getting registered are not worth it. This is especially true for engineers—like Greg—who have always worked in the manufacturing industry, rather than in the construction industry.

Laws requiring engineer registration or licensure are more common in construction fields, where they are required to “sign and stamp” plans for projects. ⁴  There, licensed engineers serve as a final check for health or safety issues and confirm that a project complies with relevant building codes.

By threatening to fine Greg thousands of dollars and shutdown SOENCO, ABTR has unconstitutionally expanded its authority to cover nearly anyone whose profession requires that they design or build anything. The statutes governing “engineering” leave it to the Board’s unchecked discretion to decide who is “engineering” and who is not. And because the Board gets to enforce and adjudicate the rules it makes; there is no other branch of government to “check” the Board’s power grabs.

The Legal Challenge

That is why Greg is suing the Arizona Board of Technical Registration for his right to truthfully call himself an engineer and continue to do the work he has done for more than 30 years. The ABTR’s actions against Greg violate the Arizona Constitution—both its protections for individual rights as well as its separation of powers requirement that dictates that government entities that enforce laws, like the ABTR, cannot write the laws they enforce.

The government cannot prohibit truthful speech

The Arizona Supreme Court has long recognized that the right to speak guaranteed by Arizona’s constitution is even more protective than the First Amendment to the U.S. Constitution. The government does not have the power to regulate the dictionary. It cannot claim ownership of a word, tweak its meaning, and punish people for using the word differently. Greg is, by training and experience, an engineer as people understand that term. Greg has every right to truthfully describe himself and his work. And the government cannot prohibit people from speaking truthfully without a license.

The right to earn an honest living cannot be protected for employees but denied to entrepreneurs.

Greg and SOENCO also have the right to continue to practice engineering. The due process and equal privileges or immunities provisions of the Arizona Constitution protect the right to earn an honest living free from unreasonable, arbitrary, oppressive, and monopolistic laws. ⁵ The ABTR is using the law to deprive Greg of his right to earn an honest living simply because he wants to work for himself rather than for someone else. Greg does not design, analyze, test, or build buildings, bridges, public works, or other construction products, nor do any of his electronics go into those designs. He does not “sign and stamp” engineering plans. Greg is qualified to work for a manufacturer under Arizona’s laws; therefore he is qualified to do the same work for himself. Simply put, the licensing law does not protect  public health and safety but does deny Greg his right to earn an honest living.

The Separation of Powers protects liberty

Arizona’s constitution separates the power to make laws into the legislature, the power to enforce laws into the executive, and the power to adjudicate laws into the judiciary. The Arizona Board of Technical Registration is doing all three when it violates Greg’s free speech and economic liberty rights. The Arizona Constitution does not allow government to operate in this way.

The Litigation Team

Greg Mills and SOENCO are represented by Paul Avelar, Managing Attorney of the Arizona Office of the Institute for Justice and Institute for Justice Constitutional Law Fellow Adam Griffin.

About the Institute for Justice

The Institute for Justice is the nation’s leading legal advocate for First Amendment rights and economic liberty. In 2017, an Oregon engineer came under fire for criticizing the timing of traffic lights. He partnered with IJ to sue the state and won.

IJ has challenged efforts to use occupational licensing laws to silence speech and put people out of work on behalf of a Mississippi tech startup company; a Texas veterinarian; interior designers in Connecticut, Florida, New Mexico, and Texas; hair braiders and eyebrow threaders in Texas, Louisiana, Arizona, and others; and now IJ is taking that fight to the administrative state, most recently for a sea captain seeking to work on the Great Lakes.