CHAPTER 385

FORMERLY

HOUSE BILL NO. 388

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AND SENATE AMENDMENT NO. 1

AN ACT TO REESTABLISH THE BOARD OF LANDSCAPE ARCHITECTS BY REESTABLISHING AND REENACTING ALL PROVISIONS OF CHAPTER 2, TITLE 24 OF THE DELAWARE CODE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Reestablish the Board of Landscape Architects by amending Title 24 of the Delaware Code by reenacting Chapter 2, as follows:

§200. Objectives of Board.

The primary objective of the Board of Landscape Architecture, to which all other objectives and purposes are secondary, is to protect the general public (specifically 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.

§201. Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meaning ascribed to them except where the context clearly indicates a different meaning:

(1) "Landscape architect" shall mean a person who, on the basis of demonstrated knowledge acquired by professional education or practical experience, or both has been granted, and holds a current certificate entitling him to use the designation "landscape architect", and practices landscape architecture in this State under the authority of this chapter.

(2) "Landscape architecture" shall mean any service or creative work the adequate performance of which requires landscape architectural education, training and experience. It shall mean the performance of professional services such as consultation, investigation, research, planning, design, preparation of drawings, specifications and contract documents, and responsible supervision or construction management in connection with the development of land areas where, and to the extent that the dominant purpose of such services is: The preservation, enhancement or determination of proper land uses, natural land features, ground cover and plantings, naturalistic and aesthetic values; the determination of settings, grounds and approaches for buildings and structures or other improvements; the determination of environment problems of land relating to erosion, flooding, blight and other hazards; the shaping and contouring of land and water forms; the setting of grades, determination of drainage and providing for storm drainage systems where such systems do not require structural design of system components and determination of landscape irrigation.

"Landscape architecture" shall include the design of such tangible objects and features as are necessary to the purpose outlined herein but shall not include the design of buildings, structures and utilities with separate and self-contained purposes such as are ordinarily included in the practice of architecture or engineering.

(3) "Board" shall mean the Delaware State Board of Landscape Architecture.

§202. License required.

No person shall hold himself out to the public as being a licensed landscape 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 landscape architect, unless such person has been licensed under this chapter.

§203. Board of Landscape Architecture - Appointment; composition; qualifications; term of office; suspension or removal; compensation.

(a) The Board of Landscape Architecture shall consist of 5 members appointed by the Governor: Three professional members who shall be licensed landscape architects; and 2 public members, To serve on the Board, a public member shall not be nor ever have been a landscape architect, nor a member of the immediate family of a landscape architect; shall not have been employed by a landscape architect; shall not have had a material financial interest in the providing of goods and services to landscape architect; nor have been engaged in an activity directly related to landscape architecture. Such public member shall be accessible to inquiries, comments and suggestions from the general public.

(b) Each member shall serve for a term of 3 years, and may succeed himself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself for only 1 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 Landscape Architecture, while serving on the Board, shall be a president, chairman or other official of a professional association of landscape architects.

(e) The provisions set forth for "employees" in §5805 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 Board member shall be reimbursed for all expenses involved in each meeting, including travel; and in addition shall receive not more than $50 for each meeting attended, but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§204. Same - Officers; meetings; quorum.

(a) In the same month of each year the members shall elect, from among their number, a President, a Secretary and a Treasure. Each officer shall serve for I year, and shall not succeed himself in the same office.

(b) The Board shall hold regularly scheduled business meetings 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 Boar) members. Special or emergency meetings may be held without notice provided a quorum is present.

(c) A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least 3 members. Any member who fails to attend 3 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.

(d) Minutes of all meetings shall be recorded, and copies shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, such hearing shall be recorded and transcribed by the Division.

§205. Same - Powers and duties.

(a) The Board of Landscape Architecture shall have authority to:

(1) Formulate rules and regulations relating to official seals 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 either the national professional association or by a recognized legitimate national testing service. 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 applicants who qualify for licensure by reciprocity;

(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 the uniform national examination, or another nationally-administered examination for those applicants who have been unable to take it at the school or college of landscape 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 profession; to evaluate such complaints; and to take such action within its powers as the Board deems appropriate;

(8) 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 and the Administrative Procedures Act;

(9) Where it has been determined after a disciplinary hearing, that penalties or sanctions shall 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) 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 of papers, records or other documentary evidence.

§206. Qualifications of applicant; report to Attorney General; judicial review.

(a) An applicant who is applying for examination and licensure under this chapter shall have the following qualifications:

(1) He shall have been graduated from a school or college of landscape architecture approved by the National Council of Landscape Architectural Registration Boards or other legitimate national association of landscape architects;

(2) An applicant may take the examination if such applicant has engaged in landscape architecture for a period of 8 years or more prior to applying for licensure;

(3) Where an applicant has taken courses in landscape architecture, but has not received a degree in landscape architecture, each complete year of study may be accepted in lieu of 2 years of actual experience, to fulfill the requirements of paragraph (2) of this subsection;

(4) 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;

(5) 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; require information relating to citizenship, place of birth, length of state residency; nor 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 licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

§207. Examination.

(a) The Board shall, in the same month of each year, or at such times as are determined by the testing service, administer the uniform national examination, prepared and graded by the National Council of Landscape Architectural Registration Boards; or such portions of the uniform national examination as it deems necessary. Such written examination shall be obtained from, and corrected by, the National Council of Landscape Architectural Registration Boards, or similar national testing service. Where an applicant has failed to pass the examination, but has successfully completed or passed certain portions or sections which he previously failed, he or she shall be permitted to retake only those certain portions or sections of the examination he or she has failed, if the testing service permits such partial examination. In the event the applicant fails the second time to successfully complete or pass the examination, the Board may require that such applicant again take the complete examination.

(b) In the event an applicant has already taken and passed the uniform national examination, the certificate from the National Council of Landscape Architectural Registration Boards acknowledging same shall be accepted, and no further state examination shall be necessary.

§208. Reciprocity.

Where the applicant is already licensed in another state, the Board shall accept a certificate or other of his examination score issued by the National Council of Landscape Architectural Registration Boards that the applicant has successfully completed or passed the uniform national examination, or the certificate or other evidence of successful completion of a similar national testing service for its national examination for landscape architects, in lieu of all other requirements for licensure provided for in this chapter. Upon receipt of an application for reciprocity, the Board shall contact each board which has previously licensed the applicant, to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved. An application for licensure by reciprocity shall be accompanied by full payment of the reciprocity fee.

§209. fees.

(a) 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 Professional 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 Professional 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.

(b) In those instances where the uniform national examination is to be taken in Delaware, applicants shall nevertheless pay all fees charged by the testing service directly to the testing service. Where the testing service refuses to accept direct payment, the applicant may pay the Board. In the event there are extra local expenses incurred by the State for its services in administering the examination, the applicant shall pay an additional fee to the Board to defray those local expenses.

§210. Issuance of license; renewal; inactive status; reinstatement.

(a) Each person who has passed the written examination, who has been admitted to practice in this State by reciprocity or who has otherwise qualified for a license shall, prior to practicing in this State, file for and obtain an occupational license from the Division of Revenue in accordance with Chapter 23 of Title 30. The Board shall forthwith issue a license to each person who has qualified for same under this chapter.

(b) Each license shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation. The Board shall in its rules and regulation, 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 1 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" will 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 3 times the amount of the reciprocity fee.

(c) Any licensee may, upon his written request, be placed in an inactive status. The renewal fee of such person shall be pro-rated in accordance with the amount of time such person was inactive. Such person may re-enter practice upon notification to the Board of his intent to do so.

(d) A former licensee who has been penalized for the violation of a provision of this chapter, or whose license has been suspended or revoked, and who subsequently is permitted to apply for reinstatement shall apply for a new license, successfully complete the uniform national; examination and shall pay all appropriate fees therefor.

§211. Complaints.

All filings and investigations of complaints by practitioners or members of the public which concern any aspect of the practice of landscape architecture shall be presented and processed pursuant to §13810(1) of Title 29.

§212. Practice by corporations and partnerships.

(a) The privilege of engaging in the practice of landscape architecture is personal, based upon the qualifications of the individual evidenced by his registration and is not transferable. All final drawings, specifications, plans, reports or other papers or documents involving the practice of landscape architecture, as defined with this chapter, when issued or filed for public record, shall be dated and bear the signature and seal of the landscape architect or landscape architects who prepared or approved same.

(b) Nothing in subsection (a) of this section she)) be construed to prevent the formation of partnerships and corporations as a vehicle for the practice of landscape architecture subject to the following conditions: The practice of or offer to practice landscape architecture for others by individual landscape architects registered under this chapter through a corporation as officers, employees or agents, or through a partnership as partners, officers, employees or agents, or the offerings or rendering of landscape architectural services by a corporation or partnership through individual landscape architects registered under this chapter is permitted, subject to this chapter; provided, however:

(1) One or more of the corporate officers in the case of a corporation, or I or more of the partners in the case of a partnership, is designated as being responsible for any services- In the practice of landscape architecture on behalf of the said corporation or partnership and is a landscape architect registered under this chapter.

(2) All personnel of said corporation or partnership, who act in its behalf as landscape architects, are registered under this Chapter; and

(3) Said corporation or partnership has been issued a certificate of authorization by the Board, as herein provided.

(c) The requirements of this chapter shall not prevent a corporation and its employees from performing landscape architectural services for a corporation, its subsidiary or for affiliated corporations.

(1) A corporation or partnership desiring a certificate of authorization shall file with the Board an application, on forms provided by the Board listing relevant information, including the names and addresses of officers and members of the corporation, or officers and partners of the partnership and also of an individual or individuals duly registered to practice landscape architecture in this State who shall be in responsible charge of the practice of landscape architecture through the said corporation or partnership, and other information required by the said Board, accompanied by the appropriate fee. A form, giving the same information, shall accompany the annual renewal fee. In the event there should be a change in the list during the year, such change shall be designated on a copy of the same form or on an identical duplicate, and filed with the Board within 30 days after the effective date of said change. If all of the requirements of this section are met, the Board shall issue a certificate of authorization to such corporation or partnership, and the corporation or partnership shall be authorized to contract for and to collect fees for landscape architectural services.

(2) No such corporation or partnership shall be relieved of responsibility for the conduct or acts of its agents, employees or officers by reason of its compliance with this section, not shall any individual practicing landscape architecture be relieved of responsibility for landscape architectural services performed by reason of his employment or relationship with such corporation or partnership.

§213. Grounds for discipline; procedure.

(a) Practitioners regulated under this chapter shall be subject to those disciplinary actions set for in §214 of this title 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 landscape architecture;

(2) Illegal, incompetent or negligent conduct in the practice of landscape 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 a landscape 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 nondisciplinary 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;

(2) Temporary emotional disorder or mental illness; or

(3) Permanent emotional disorder or mental Illness.

(c) If a practitioner's physical or mental capacity to practice safely is at issue in a nondisciplinary 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 §214 of this title.

(d) Where a practitioner fails to comply with the Board's request that he submit to an examination or attending 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.

(e) Subject to subchapter IV of Chapter l01 of Title 29, 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 the Administrative Procedures Act.

§214. Disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that 1 of the conditions or violations set forth in §213 of this title 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:

a. Report regularly to the Board upon the matters which are the basis on the probation;

b. Limit all practice and professional activities to those areas prescribed by the Board; and/or

c. 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 practitioners'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's a clear and immediate danger to the health and 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.

§215. Hearing procedures.

(a) Upon the receipt of a complaint, the Board shall determine what action, if any, it shall take. If the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within 3 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 3D 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 practitioner. The Board's decision shall become effective on the 30th day after the date it is mailed or served on the practitioner, unless there Is an appeal by the practitioner to the Superior Court within that time.

§216. Practicing without a license; penalties.

(a) Where the Board has determined that a person is practicing landscape architecture within the State without having lawfully obtained a license therefor, or that a person previously licensed is unlawfully practicing although his license has 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) Where a person not currently licensed as a landscape architect is convicted of unlawfully practicing landscape architecture in violation of this chapter such offender shall, upon the first offense, be fined $50, and Shall pay all costs; provided, however, that where it is alleged that such violation has resulted in injury to any person, the offender shall be charged and tried under the application provisions of Title H.

(d) Where a person previously convicted of unlawfully practicing landscape architecture is convicted a second or subsequent time of such offense, the fine assessed against such person shall be increased by $250 for each subsequent offense thereafter."

Approved July 17, 1990.