SB 0378

This bill establishes a board of landscape architects for the purpose of licensing and regulating landscape architects.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Chapter Heading; Landscape Architects Added. The chapter heading preceding RSA 310-A is repealed and reenacted to read as follows:

SURVEYORS, PROFESSIONAL GEOLOGISTS, NATURAL SCIENTISTS, FORESTERS, AND LANDSCAPE ARCHITECTS

2 Joint Board; Landscape Architects Added. Amend RSA 310-A:1 to read as follows:

310-A:1 Joint Board Established. There shall be a joint board of professional engineers, architects, land surveyors, foresters, professional geologists, [~~and~~] natural scientists, and landscape architects consisting of each of the members of the board of professional engineers, board of architects, state board of licensure for land surveyors, foresters' board, board of professional geologists, [~~and~~] the board of natural scientists, and the board of landscape architects. The joint board shall meet at least quarterly to carry out its duties established under this chapter.

3 New Subdivision; Licensing Landscape Architects. Amend RSA 310-A by inserting after section 139 the following new subdivision:

I. It shall be a class B misdemeanor for any person to practice for compensation or offer to practice for compensation in this state, the profession of landscape architecture, as defined in this subdivision, or to use in connection with a name or otherwise assume, use, or advertise any title or description tending to convey the impression that such person is a landscape architect, unless such person has been duly licensed or is exempt from licensing under the provisions of this subdivision.

II. Nothing in this subdivision, however, shall be construed as requiring any person, business organization, state university, department or agency of any branch of government to be licensed pursuant to this subdivision in order to practice landscape architecture on their own lands.

III. Nothing in this subdivision shall be construed as requiring any person to be licensed pursuant to this subdivision in order to carry out landscape architecture practices as an employee of a licensed landscape architect and acting under the direct supervision of such licensed landscape architect.

IV. Nothing in this section shall be construed as requiring any person to be licensed under this subdivision if that person is engaged in activities incidental to the practice of landscape architecture as defined in RSA 310-A:141, IV, provided, however, that such person does not represent that the person is a landscape architect as defined in RSA 310-A:141, II. Such incidental activities shall include: routine yard maintenance, land use planning, arboriculture, and any other activity or occupation determined by the board to be incidental to the practice of landscape architecture.

I. "Business organization" means any enterprise, whether corporation, partnership, limited liability company, proprietorship, association, business trust, real estate trust, or other form of organization; organized for gain or profit, carrying on any business activity within the state.

II. "Landscape architect" means a person who, by reason of professional education or practical experience, or both, is qualified to engage in the practice of landscape architecture as attested by licensing as a landscape architect.

III. "Landscape architectural practice" means the performance of professional services such as consultations, investigation, reconnaissance, research, planning, design or responsible supervision in connection with the development of land and incidental water 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 planting, naturalistic and aesthetic values, the settings of and approaches to buildings, structures, facilities or other improvements, natural drainage and the consideration and the determination of inherent problems of the land relating to erosion, wear and tear, light or other hazards. This practice shall include the location and arrangement of such tangible objects and features as are incidental and necessary to the purposes outlined in this paragraph but shall not include the making of cadastral surveys or final land plats for official recording or approval, nor mandatorily include planning for governmental subdivisions.

I. A board of licensing for landscape architects is established to administer the provisions of this subdivision. The board shall consist of 7 persons appointed by the governor and council, 4 of whom shall be actively involved in landscape architecture, and 3 public members. A public member of the board shall be a person who is not, and never was, a member of the landscape profession or the spouse of any such person, and who does not have and never has had, a material financial interest in either the provision of landscape services or an activity directly related to landscaping.

II. Each member of the board shall be a citizen of the United States and shall have been a resident of this state for at least 5 years prior to appointment. Each landscape member shall be actively involved in landscape architecture and shall have held a responsible position in charge of such work for at least 2 years prior to appointment, which may include the teaching of landscaping.

III. Members shall be appointed for 7-year terms, except that no more than one appointed member's term may expire in any one calendar year. Appointments for terms of less than 7 years may be made in order to comply with this limitation. No appointed member shall be eligible to serve more than 2 full consecutive terms, provided that for this purpose only a period actually served which exceeds 1/2 of the 7-year term shall be deemed a full term. Upon expiration of a member's term, the member shall serve until a successor is qualified and appointed. The successor's term shall be 7 years from the date of expiration of the predecessor's appointment, regardless of the date of the successor's appointment. Vacancies occurring prior to the expiration of a specific term shall be filled by appointment for the unexpired term. A board member may be removed for cause by the governor and council under RSA 4:1.

IV. Members of the board shall be reimbursed for mileage at the state employee rate.

V. The board shall hold at least 3 regular meetings each year and special meetings at such times as it may deem necessary. Notice of all meetings shall be given in such a manner as rules adopted by the board may provide. The board shall biennially elect or appoint a chairperson, vice-chairperson, and secretary. Four members shall constitute a quorum.

(b) The board shall keep a true record of its proceedings and a register of all applications for licensure, which shall show:

(c) The records of the board shall be prima facie evidence of the proceedings of the board, and a transcript of such records certified by the secretary of the board under seal shall be admissible in evidence with the same force and effect as if the original were produced. Biennially, as of December 31 of each even-numbered year, the board shall submit to the governor a report of the transactions of the preceding biennium, and a complete statement of the receipts and expenditures of the board.

VII. The secretary of the board shall publish a roster listing the names and places of business of all landscape architects licensed under this subdivision by the board secretary during February of each even-numbered year. Copies of this roster shall be mailed to each licensed landscape architect upon request, placed on file with the secretary of state, and furnished to the public upon request at a fee to be established by the board.

310-A:143 Rulemaking. Pursuant to RSA 541-A, the board shall make rules reasonably necessary for the proper performance of its duties and the conduct of the proceedings brought before it, so long as such rules do not conflict with the constitution and laws of the state of New Hampshire. Such rulemaking authority includes, but is not limited to:

II. Qualifications of applicants in addition to those requirements already set forth, including satisfactory evidence of good professional character.

VI. Ethical and professional standards to be met by each license holder under this subdivision and the manner in which disciplinary actions by the board shall be implemented for violations of these standards.

310-A:144 Qualifications for License. Applicants for licensure as landscape architects shall qualify under one of the following categories:

I. Possession of a 2-year landscape architecture degree or equivalent, and 4 years experience of a nature satisfactory to the board. The board may require an applicant to pass an oral or written examination, or otherwise meet the approval of the board.

II. Possession of a 2-year degree in a related field and 6 years experience of a nature satisfactory to the board. The board may require an applicant to pass an oral or written examination, or otherwise meet the approval of the board.

III. There shall be no minimum educational requirement for licensure as a landscape architect for applicants who have 8 years of related professional experience within the last 10 years of a nature satisfactory to the board. The applicant may be required to pass an oral or written exam, or otherwise meet the approval of the board.

310-A:145 Applications; Fees. Applications for licensing shall be made on forms prescribed and furnished by the board, and shall contain statements made under oath as to citizenship, residence, the applicant's education, a detailed summary of the applicant's technical experience, and shall contain the names of not less than 5 references, 3 or more of whom shall be individuals having personal or professional knowledge of the applicant's landscape architecture experience. The fee for a license as a landscape architect shall be fixed by the board. One-half of the fee shall accompany the application, the balance to be paid before the issuance of the license. Should the applicant fail to remit the remaining balance within 30 days after being notified by certified mail, return receipt requested, that the application has been accepted, the applicant shall forfeit the right to have the license issued and the applicant may be required to again submit an original application and pay an original fee on such application. Should the board deny the issuance of a license to any applicant, the fee deposited shall be retained by the board as an application fee.

310-A:146 Issuance of License; Endorsement of Documents. The board shall issue a license upon payment of the fee as provided in this subdivision to any applicant, who, in the opinion of the board, has satisfactorily met all the requirements of this subdivision. Licenses shall show the full name of the licensee, shall have a serial number, and shall be signed by the chairperson and secretary under the seal of the board. The issuance of a license by the board shall be evidence that the person named in the license is entitled to all rights and privileges of a licensed landscape architect while such license remains unrevoked or unexpired. Documents and reports issued by the licensee shall be endorsed with the licensee's name and license number during the life of the license. It shall be a class B misdemeanor for anyone to endorse any document with such name and license number after the license of the named licensee has expired or has been revoked, unless said license has been renewed or reissued. It shall be a class B misdemeanor for any licensed landscape architect to endorse any document or report unless the licensed landscape architect shall have actually prepared such document or report, or shall have been in the actual charge of the preparation of the same.

310-A:147 License Renewal. Licenses may be renewed by written application prior to the expiration date and by payment of the prescribed renewal fee. The secretary shall notify each landscape architect one month prior to the expiration of such certificate. The applicant shall submit proof of completion of 20 hours of continuing education approved by the board at the time of license renewal, together with a record of any legal judgments brought against the applicant for services as a landscape architect.

310-A:148 Failure to Renew. Failure to remit the biennial renewal fee when due or failure to submit proof of required continuing education shall automatically cancel the license. If properly renewed, a license shall remain in effect continuously from the date of issuance, unless suspended or revoked by the board for just cause. A person whose license is cancelled for such failure may reinstate such license by paying, within one year of cancellation, all fees due, plus a late fee as established by the board, provided continuing education requirements have been met.

(b) Upon written complaint of any person which charges that a person licensed by the board has committed misconduct under paragraph II, and which specifies the grounds for such complaint.

II. Misconduct sufficient to support disciplinary proceedings under this section shall include:

(a) The practice of fraud or deceit in procuring or attempting to procure a license to practice under this subdivision.

(d) Unfitness or incompetency by reason of negligent habits or other causes; or negligent or willful acts performed in a manner inconsistent with the interests of persons relying on the professional expertise of the landscape architect.

(g) Suspension or revocation of a license, issued in another jurisdiction and similar to one issued under this subdivision, which was not reinstated.

III. The board may take disciplinary action in any one or more of the following ways and notice of such action shall be provided to newspapers of general circulation in the area in which the licensee practices:

(b) By suspension, limitation, or restriction of a license for a period of up to 5 years.

(d) By requiring the person to participate in a program of continuing education in the area or areas in which the person has been found deficient.

310-A:150 Hearings; Subpoenas. The board shall take no disciplinary action without a hearing. At least 14 days prior to a hearing, all parties to a disciplinary proceeding shall be served, either personally or by certified mail, return receipt requested, with a written copy of the complaint filed and notice of the time and place for hearing. All complaints shall be objectively received and fairly heard by the board, but no complaint shall be acted upon unless in writing. A hearing shall be held on all written complaints received by the board within 3 months of the date of notice of a complaint received by the licensee, unless otherwise agreed to by the parties. Written notice of all disciplinary decisions made by the board shall be given to both parties to the proceeding upon their issuance. Orders of the board shall be subject to rehearing and appeal in the manner prescribed by RSA 541. The board shall have the power to subpoena witnesses and compel, by subpoena duces tecum, the production of books, papers, and documents in a case involving the suspension or revocation of licensure. Any member of the board may administer oaths or affirmations to witnesses appearing before the board

310-A:151 Violations; Penalty. Any person who practices or offers to practice landscape architecture in this state for others for compensation without a license in accordance with this subdivision, or any person presenting or attempting to use the license or seal of another, or any person who gives any false or forged evidence of any kind to the board or to any board member in obtaining or attempting to obtain a license, or any person who falsely impersonates any other licensed landscape architect, or any person who attempts to use an expired or nonexistent or revoked license, or any person who violates any of the provisions of this subdivision, shall be guilty of a class B misdemeanor if a natural person, or guilty of a felony if any other person. The board may also impose administrative fines for violations of this subdivision in accordance with rules adopted under RSA 310-A:143, VIII which shall not exceed $2,000 per offense, or in the case of a continuing offense, $250 for each day the violation continues.

The Joint Board states they are unable to determine the amount of fees or expenditures that would be associated with the Board of Landscape Architects because they have no knowledge about the number of potential licenses. RSA 310-A:7 requires the Joint Board to establish fees which shall be sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the Board for the previous fiscal year. As a result, any additional costs would result in an indeterminable increase in state revenues.

The Department of Corrections states any prison time served as a result of a misdemeanor conviction, as a result of practicing without a license would be served in a county jail and have no fiscal impact on the Department. A misdemeanor sentence could carry a penalty of up to two years probation supervision. The Department estimates no more than five people per year would be convicted of a violation in this bill. No new corrections personnel would be needed. The average cost of probation supervision is $840 per offender per year, for an estimated annual increase in expenditures of $4,200 ($840 X 5).

The Department of Justice states any fiscal impact can be handled within existing appropriations.

The Administrative Office of the Courts states this bill will have no fiscal impact on the Judicial Branch.

The Judicial Council states this bill will have no effect on the Indigent Defense Fund.