SENATE BILL NO. 67
AN ACT TO AMEND TITLE 24 AND TITLE 29 OF THE DELAWARE CODE RELATING TO THE REGULATION OF ARCHITECTURE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 3, Title 24 of the Delaware Code by striking said chapter in its entirety, and substituting in lieu thereof the following:
"CHAPTER 3. ARCHITECTURE
§301. Objectives and Functions
The primary objective of the Board of Architects, to which all other objectives and purposes are secondary, is to protect the general public (including those persons who are direct recipients of services regulated by this Chapter) from unsafe practices, and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency, and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaints hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners.
The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:
(a) 'Architect' shall mean a person registered with the Board of Architects to practice architecture.
(b) At cost' shall mean the cost expended by the Division of Business and Occupational Regulation in producing the materials, plus the cheapest available form of mailing or delivery. It shall not include any amount or fee amount which might be charged for employee time or other non-material items.
(c) 'Certificate of Registration' shall mean any document which indicates that a person is currently registered with the Board of Architects.
(d) 'Person or firm which provides construction services' shall include architects and architectural businesses; engineers and engineering businesses; and any other occupation involved in the design of structures.
(e) 'Practice of Architecture' shall mean the rendering or offering to render those services, hereinafter described, in connection with the design and construction of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures; the services referred to include planning, preparing studies, designs, drawings and specifications and furnishing administration of construction contracts.
§303. License to Practice
(a) The right to engage in the practice of architecture shall be deemed a personal right, based upon the qualifications of the individual as evidenced by his or her certificate of registration, which shall not be transferable. No person shall hold himself out to the public as being a licensed architect, or use in connection with his name or otherwise assume, use or advertise any title or description intending to convey the impression that he is a licensed architect, unless such person has been licensed under this Chnpter.
(b) The provisions of this Chapter shall not be construed to prevent, nor to affect:
(1) The work of an employee or subordinate of a licensee, providing such work is done under the direct responsbility and supervision of the licensee;
(2) The practice of architecture by a person licensed in this State as a professional engineer,when such practice is incident& to what may be properly considered an engineering project;
(3) The practice of architecture by a landscape architect legally registered in this State when such practice is incidental to what may be properly considered a landscape architecture project;
(4) The practice of architecture by a corporation, whether or not organized under Chapter 6 of Title 8, if the practice is done under the direct responsibility and supervision of an architect;
(1) The design by persons not registered under this Chapter of single and two-family dwellings, sheds, storage buildings, and garages incidental to such dwellings;
(2) The design by persons not registered hereunder of farm buildings: including barns, silos, sheds, or housing for farm equipment and livestock, provided such structures are designed to be occupied by no more than ten persons; or
(3) The design by persons not registered hereunder of an alteration, renovation, or remodeling of a structure when such alteration, renovation, or remodeling does not affect structural or other safety features of the structure and when the work contemplated by the design does not require the Issuance of a permit under applicable building codes.
§304. Board of Architects
(a) The Board of Architects shall consist of nine members appointed by the Governor: five professional members who shall be architects; and four public members. To serve on the Board, a public member shall not be nor ever have been a person or firm which provides construction services, nor a member of the immediate family of an architect or engineer; shall not have been employed by a person or firm which provides construction services; shall not have had a material financial interest in the providing of goods and services to any person or firm which provides construction services; nor have been engaged in an activity directly related to the design of buildings. No person shall be a public member if a member of such person's immediate family is an architect, or is an employee of an architect; or if a member of such person's immediate family has a material or financial interest in the providing of goods or services to architects. Each public member shall be accessible to inquiries, comments and suggestions from the general public.
(b) Each member shall serve for a term of five years, and may succeed himself for one additional term; provided however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment, and the member shall no longer be eligible to participate in Board proceedings unless lawfully appointed.
(c) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.
(d) No member of the Board of Architects, while serving on the Board, shall be a President, Chairman or other official of a professional architect association.
(e) The provisions set forth for "employees'. in §5855 of Title 29 shall apply to all members of the Board, and to all agents appointed by or otherwise employed by the Board.
(f) Each member of the Board shall receive not more than five hundred dollars ($500.00) in any calendar year; and shall receive not more than forty dollars ($40.00 for each meeting, under twelve meetings, which such member attends during that year. In the event the member attends a thirteenth meeting of the Board, such member shall receive the difference between the total compensation already received and the five hundred dollars ($500.00) maximum total permitted under this section.
§305. Officers; Conduct of Business
(a) In the same month of each year the members shall elect, from among their number, a President, and a Secretary. A member may serve as an officer of the Board for not more than three consecutive years.
(b) The Board shall hold a regularly scheduled business meeting at least once in each quarter of a calendar year and at such other times as the President deems necessary, or at the request of a majority of Board members. Special or emergency meetings may be held without notice, but a copy of the minutes of such meeting shall be forwarded to those practitioners who have ordered copies of Board meetings. A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least five members. Any member who fails to attend three consecutive meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed.
(c) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Business and Occupational Regulation. At any hearing where evidence is presented, such hearing shall be recorded and transcribed by the Division.
(d) The Division of Business and Occupational Regulation shall annually compute the average expenses incurred in duplicating the following materials: the meeting schedule for the Board, notice of next business meeting, and the minutes of Board meetings. Upon his initial licensure and each license renewal, each practitioner shall receive a list of materials available from the Division, and the price charged to receive each for one year. Each item shall be offered to the practitioner at cost. A practitioner may order any one, or may order all, of the materials.
§306. Powers and Duties
(a) The Board of Architects shall have authority to:
(1) Formulate rules and regulations relating to official seals, rosters, and other matters, with appropriate notice to those affected, where such notice can reasonably be given. Each rule or regulation shall implement or clarify a specific section of this chapter;
(2) Designate the application form to be used by all applicants, and to process all applications;
(3) Designate a written national examination, prepared by the National Council of Architectural Registration Boards. The examination shall be prepared for testing on a national basis, and not specifically prepared at the request of the Board for its individual use. The national examination shall be taken by persons applying for licensure, except those reciprocity applicants who have previously taken the examination;
(4) Provide for the administration of all examinations, including notice and information to applicants;
(5) Under such conditions as are permitted by the national testing service, to administer a nationally-prepared and corrected examination, or a similar national examination for those applicants who have been unable to take a national examination at the school or college of architecture, or elsewhere;
(6) Grant licenses to all persons who meet the qualifications for licensure;
(7) ReceiVe complaints from practitioners and from the public concerning practitioners, or concerning practices of the Board or of the profession; to evaluate such complaints; and to take such action within its powers as the Board deems appropriate;
(8) Hold hearings and take such actions as are permitted under the provisions of the Administrative Procedures Act, except where such provisions conflict with the provisions of this Chapter. The Board shall determine whether or not a practitioner shall be the subject of a disciplinary hearing, and if so, to conduct such hearing in accordance with this Chapter;
(9) Where It has been determined after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed;
(10) Bring proceedings in the courts for the enforcement of this chapter;
(11) In cooperation with the Division, to maintain complete records relating to meeting minutes, applications, examinations, rosters, changes and additions to the rules and regulations, complaints, hearings, and such other matters as the Board shall determine.
(b) The Board may require by subpoena the attendance and testimony of witnesses and the production papers, records or other documentary evidence.
§307. Application Procedure
(a) An applicant who is applying for examination and licensure under this Chapter shall have the following qualifications:
(I) The applicant has been graduated from high school, or holds a diploma or certificate attesting that he has successfully completed the equivalent of a high school education;
(2) An applicant shall not have been convicted of a felony, nor have been professionally penalized or convicted for drug addiction, nor have been professionally penalized or convicted for fraud;
(3) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board. No application form shall require a picture of the applicant; reqwre information relating to citizenship, place of birth, or length of state residency; nor shall it require personal references.
(b) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.
(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for him than for other applicants; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.
§308 Examination of Applicants
The Board shall, at least once per year, or at such times as are determined by the National Council of Architectural Registration Boards, administer a national examination, prepared by the National Council or other similar national testing service; or such portions of the national examination as it deems necessary. Such national written examination shall be obtained from, and corrected by, the National Council of Architectural Registration Boards. Where an applicant has failed to pass the examination, but has successfully completed and passed certain portions or sections of the examination, the applicant shall in the next subsequent examination be tested only for those portions or sections which he previously failed. In the event the applicant fails the second time to successfully complete those portions which he previously failed, the Board may require that such applicant again take the complete examination.
In the event an applicant has already taken and passed the national examination, the certificate or other evidence from the testing service acknowledging same shall be accepted, and no further state examination shall be necessary.
Where the applicant is already licensed in another State, the Board shall in lieu of all other requirements for licensure provided for in this chapter, accept a certificate or other evidence of his examination score, Issued by the National Council of Architectural Registration Boards, which states that the applicant has successfully completed its national examination; provided however, that in cases where the current examination contains additional sections relating to matters not covered by the applicant's previous examination, the applicant shall take an examination which is limited to those sections of the National examination which were not previously taken by the applicant. An application for licensure by reciprocity shall be accompanied by full payment of the reciprocity fee.
The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board as well as the proportional expenses incurred by the Division of Business and Occupational Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year the Division of Business and Occupational Regulation, or any other state agency acting in its behalf, shall compute for each separate service or activity, the appropriate Board fees for the coming year.
§311 Licensure; Renewal of License
Each license shall be renewed biennially, in such manner as is determined by the Division of Business and Occupational Regulation. The Board shall, in its rules and regulations, determine the period of time within which a practitioner may still renew his license, notwithstanding the fact that such practitioner has failed to renew on or before the renewal date; provided however, that such period shall not exceed one year. The Board shall charge for each month or quarter during such "late renewal period" a late fee which, at the end of such "late period" shall be twice the sum of the unpaid renewal fee. At the expiration of the period designated by the Board, the license shall be deemed to be lapsed and not renewable, unless the former licensee re-applies under the same conditions which govern reciprocity; provided however, that the former licensee shall also pay a reinstatement fee In an amount which Is three times the amount of the reciprocity fee.
(a) Any practitioner or member of the public who has a question or a complaint concerning any aspect of the practice of architecture may, during the regular business hours of a business day, contact the Board or the Division of Business and Occupational Regulation; or voice such question or complaint at a business meeting of the Board.
(b) The Board shall investigate any complaint, including oral and anonymous complaints; and shall follow through on those informal complaints which, upon investigation, appear to be valid and well-founded. In cases where the complainant is known to the Board it shall, within six weeks after receipt of the complaint, notify the complainant whether or not it will take any action in the matter. If the Board decides to take no action it shall, by letter, state its reasons therefor. A complete record shall be kept of each complaint, formal or informal; provided however, that the complaints records may be purged after five years.
§313. Violations; Grounds for Professional Discipline
(a) Practitioners regulated under this Chapter shall be subject to those disciplinary actions set forth in 5314 if, after a hearing, the Board finds;
(1) That the practitioner has employed or knowingly cooperated in fraud or material deception in order to be licensed, or be otherwise authorized to practice architecture;
(2) Illegal, incompetent or negligent conduct in the practice of architecture;
(3) Excessive use or abuse of drugs (including alcohol, narcotics or chemicals);
(4) That the practitioner has been convicted of a felony or crime involving moral turpitude;
(5) That the practitioner, as an architect or otherwise in the practice of his profession, knowingly engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities;
(6) That the practitioner has violated a lawful provision of this Chapter, or any lawful regulation established thereunder.
(b) A practitioner shall be subject to non-disciplinary remedial action if, after a hearing, the Board finds that there is a danger to the health, safety and welfare of the public due to:
(1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; or
(2) Temporary emotional disorder or mental illness;
(3) Permanent emotional disorder or mental illness.
(c) If a practitioner's physical or mental capacity to practice safely is at issue in a non-disciplinary remedial proceeding, the Board may order the practitioner to submit to a reasonable physical or mental examination. Failure to comply with a lawful order to submit to a physical or mental examination shall render a practitioner liable to temporary suspension or revocation of license in accordance with §314.
(d) Where a practitioner fails to comply with the Board's request that he submit to an examination or attend a hearing, the Board may petition the Superior Court to order such examination or attendance, and the said Court or any Judge assigned thereto shall have jurisdiction to issue such order.
le) No license shall be restricted, suspended or revoked by the Board; and no practitioner's right to practice shall be limited by the Board, until such practitioner has been given notice, and an opportunity to be heard in accordance with §315 of this Chapter.
§314. Remedial Actions and Disciplinary Sanctions
The Board may impose any of the following sanctions, singly or in combination, when it finds that one of the conditions or violations set forth in §313 applies to a practitioner regulated by this Chapter:
(1) Issue a letter of reprimand ;
(2) Censure a practitioner;
(3) Place a practitioner on probationary status, and require the practitioner to:
(i) Report regularly to the Board upon the matters which are the basis on the probation,
(ii) Limit all practice and professional activities to those areas prescribed by the Board, and/or
(i) Continue or renew his professional education until the required degree of skill has been attained in those areas which are the basis of the probation;
(4) Suspend any practitioner's license; or (5) Revoke a practitioner's license.
(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.
(c) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, or during the appeals process; but only in cases where there is a clear and immediate danger to the health, safety and welfare of the public if the licensee is allowed to continue to practice. Such suspension may be appealed.
(d) Where a license has been suspended due to a disability of the licensee, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety.
(e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.
§315. Board Hearings; Procedure
(a) Upon the receipt of a complaint against a practitioner, the Board shall determine what action, (if any) it shall take. Where the Board has determined to take further action, the matter shall be heard by the Board within three months from the date on which the complaint was received. The Board shall fix the time and place for a full hearing of the matter, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the practitioner at least thirty days before the date fixed for the hearing. In cases where the practitioner cannot be located or where personal service cannot be effected, substitute service shall be effected in the same manner as with civil litigation.
(b) All hearings shall be informal without use of the rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as It deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. A copy of the decision shall be mailed immediately to the complainant, and to the practitioner. The Board's decision shall become effective on the thirtieth day after the date it is mailed or served on the practitioner, unless there is an appeal to the Superior Court within that time.
(c) Where either the complainant or the practitioner is in disagreement with the action of the Board, either person may appeal the Board's decision to the Superior Court within thirty days of service, or of the postmarked date of the copy of the Board's decision. Upon such appeal the Court shall hear the evidence de novo, and the filing of an appeal shall act as a stay of the Board's decision, pending final deter minalToffbTthe appeal.
(a) Where the Board has determined that a person is practicing architecture within this State without having lawfully obtained a license therefor, or that a person previously licensed is unlawfully practicing although his license as been suspended or revoked, the Board shall formally warn such person. If the offense continues, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board.
(b) Where the Board has placed a practitioner on probationary status under certain restrictions or conditions, and the Board has determined that such restrictions or conditions are being or have been violated by the practitioner, it may, after a hearing on the matter, suspend or revoke the practitioner's license.
(c) Any person who violates the provisions of 5303 of this Chapter shall be liable to a civil penalty of not more than two thousand, five hundred dollars ($2,500) for the first offense; and not more than five thousand dollars ($5,000) for the second and each subsequent. offense, which penalty may be sued for, and recovered by and in the name of the Board."
Section 2. Amend §10161, Chapter 101, Title 29 of the Delaware Code by adding thereto a new subsection, designated as subsection (I8), which new subsection shall read as follows:
"(18) Board of Architects."
Section 3. Each member of the present Board of Architects shall serve out the term for which he was appointed. The incumbency of any hold-over member shall terminate on the effective date of this Act. Notwithstanding the fact that Section 1 of this Act provides for a Board of nine members, the Board of Architects shall contain all present members with unexpired terms, together with any newly-appointed public members. The public metnbers shall appointed as soon as practicable after the effective date of this Act. Of the initial public members, one shall serve for a term of four years; one shall serve for a term of three years; one shall serve for a term of two years; and one shall serve for a term of one year. Upon expiration of terms of present board members, no new professional membersshall be appointed until the terms of all but four architect members have expired. At such time, one new professional member shall be appointed. Each present professional member may finish serving his present term, and one succeeding term if re-appointed; but shall not be eligible thereafter for re-appointment.
Section 4. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared severable.
Approved January 31, 1983.