71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1034
A-Engrossed
House Bill 2196
Ordered by the House May 2
Including House Amendments dated May 2
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor John A. Kitzhaber,
M.D., for the State Landscape Architect Board)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Expands disciplinary authority of State Landscape Architect
Board. Expands State Landscape Architect Board membership.
Modifies definitions and exceptions applicable to practice of
landscape architecture. Provides for confidentiality of materials
relating to registration or discipline of landscape architects.
Creates criminal penalties not to exceed $5,000 fine, six months'
imprisonment, or both. Increases maximum available civil penalty
from $1,000 to $5,000.
A BILL FOR AN ACT
Relating to landscape architects; creating new provisions;
amending ORS 192.660, 671.310, 671.312, 671.345, 671.376,
671.395, 671.404, 671.412, 671.425, 671.435, 671.445 and
671.459; and repealing ORS 671.315 and 671.454.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 9 of this 2001 Act are added to
and made a part of ORS 671.310 to 671.459. + }
SECTION 2. { + (1) Except as provided in this section, unless
an individual is registered as a landscape architect by the State
Landscape Architect Board, the individual may not engage in the
practice of landscape architecture. Unless an individual is
registered as a landscape architect by the board, the individual
may not use the title of 'landscape architect,' 'registered
landscape architect' or 'landscape architectural designer' or use
other titles or any words, letters, figures, signs, cards,
advertisements, symbols or other devices to represent that the
individual or a business associated with the individual is
authorized to practice landscape architecture.
(2) A person may not knowingly aid or abet an individual who is
not registered as required under this section in the practice of
landscape architecture.
(3) Notwithstanding subsections (1) and (2) of this section,
the board may register a person as a landscape architect in
training if the person meets the education and experience
standards established by board rule and passes a board approved
examination. The board shall adopt rules establishing fees and
specifying the qualifications, duties, functions and powers of a
landscape architect in training. + }
SECTION 3. { + A business may not provide landscape
architecture services unless the work is under the full authority
and responsible charge of a registered landscape architect who is
also an owner or officer of the business. A business shall file a
form with the State Landscape Architect Board identifying
responsible landscape architects by name and registration number.
The filing must also describe the services that the business is
offering to the public. The filing must be in a form prescribed
by the board. The business shall notify the board in writing no
later than 30 days after a change of registered owners or
officers or a change of business name or address. + }
SECTION 4. { + (1) A registered landscape architect shall
obtain a stamp of a design authorized by the State Landscape
Architect Board. The stamp must bear the name, registration date
and registration certificate number of the landscape architect
and the legend 'registered landscape architect. '
(2) A registered landscape architect shall stamp and sign all
final drafts of professional documents that the landscape
architect issues for obtaining permits, obtaining approvals by
agencies other than the board or fulfilling contractual
obligations, including maps, plans, designs, contract documents
and reports.
(3) The signature and stamp of a registered landscape architect
constitute certification that the document was prepared by the
landscape architect or under the supervision and control of the
landscape architect. + }
SECTION 5. { + (1) ORS 671.310 to 671.459 do not restrict or
otherwise affect the right of any person to:
(a) Practice architecture under ORS 671.010 to 671.220;
(b) Practice engineering under ORS 672.002 to 672.325;
(c) Engage in the occupation of growing and marketing nursery
stock, or use the title 'nurseryman' or 'landscape nurseryman';
(d) Operate as a landscape contractor or landscaping business
under ORS 671.510 to 671.710 or use the title 'landscape
contractor';
(e) Perform work described under ORS 671.540;
(f) Engage in making plans or drawings for the selection,
placement or use of plants or other site features unless the
plans or drawings are for the purpose of providing construction
details and specifications not otherwise exempted;
(g) Use the title 'landscape designer' in connection with
activities described under paragraph (f) of this subsection;
(h) Make any plans, drawings or specifications for property
owned by that person; or
(i) Provide recommendations or written specifications for soil
amendments or planting mediums if the recommendations or
specifications are solely for purposes of plant installation and
do not significantly alter the stability of the soil profile or
surface drainage patterns.
(2) The scope of services described in ORS 671.310 (5) and (6)
does not preclude a registered landscape architect from:
(a) Planning the development of land areas and elements used on
land areas; or
(b) Performing services described in ORS 671.310 (5) and (6) in
connection with the settings, approaches or environment for
buildings, structures or facilities in accordance with legally
established standards for public health, safety and welfare.
(3) ORS 671.310 to 671.459 do not apply to:
(a) The preparation of detailed or shop drawings that a
construction contractor is required to furnish or the
administration of construction contracts by a person customarily
engaged in contracting work.
(b) The preparation of technical submissions or the
administration of construction contracts by employees of a
landscape architect or a landscape architecture business when
acting under the direct supervision of a registered landscape
architect.
(c) Employees of the federal government acting within the scope
of that employment. + }
SECTION 6. { + (1) Notwithstanding ORS 192.420:
(a) In addition to any exemption from disclosure provided under
ORS 192.501 (4), State Landscape Architect Board examination
materials, file records of examination grading and performance,
transcripts from educational institutions, letters of inquiry,
letters of reference and board inquiry forms, concerning
applicants or registrants are confidential and may not be
disclosed except as provided in paragraph (b) or (c) of this
subsection.
(b) Investigatory information developed or obtained by the
board is confidential and not subject to disclosure by the board
unless a notice is issued for a contested case hearing or the
matter investigated is finally resolved by board action or a
consent order. The board shall notify the registrant of the
investigation. The public may obtain information confirming that
an investigation is being conducted and describing the general
nature of the matter being investigated.
(c) The board may appoint an advisory committee to conduct an
investigation described under paragraph (b) of this subsection on
behalf of the board. Investigatory information developed or
obtained by an advisory committee is confidential unless a notice
is issued for a contested case hearing or the matter investigated
is finally resolved by board action or a consent order. The board
may discuss in open session matters that are being reviewed by an
advisory committee, but may not disclose confidential information
into the public record.
(2) Notwithstanding any confidentiality established under
subsection (1) of this section, if the board or an advisory
committee meets in executive session to discuss an investigation,
the board or committee may permit other public officials and
members of the press to attend the executive session.
Notwithstanding ORS 192.610 to 192.690, the public officials and
members of the press attending the executive session may not
disclose information discussed by the board or committee during
the session until the information ceases to be confidential under
subsection (1) of this section. + }
SECTION 7. { + A person that reports or supplies information
in good faith to the State Landscape Architect Board or to an
advisory committee assisting the board is immune from an action
for civil damages as a result thereof. The board or committee
shall not disclose the name of a person requesting
confidentiality unless the testimony of the person is required as
part of a board disciplinary proceeding. + }
SECTION 8. { + A person who violates any provision of ORS
671.310 to 671.459, or any rule of the State Landscape Architect
Board adopted thereunder, is guilty of a misdemeanor. Subject to
ORS 161.655, a court may impose on the person a fine of not less
than $250 or more than $5,000, a term of imprisonment of not more
than six months, or both. + }
SECTION 9. { + In addition to any civil penalty imposed by the
State Landscape Architect Board or any fine or term of
imprisonment imposed by a court, except as otherwise provided in
ORS 671.404, the board may impose one or more of the following
sanctions against a person violating ORS 671.310 to 671.459:
(1) Revocation of a certificate of registration.
(2) Suspension of a certificate of registration for not more
than three years.
(3) Restriction of the scope of a registrant's practice.
(4) Imposition of peer review.
(5) Imposition of specific or additional professional education
requirements.
(6) Imposition of probationary registration status and
restrictions, including but not limited to requirements designed
to protect the public health, safety and welfare and restitution
payments to clients or other persons suffering economic loss due
to the violation.
(7) Issuance of a written reprimand. + }
SECTION 10. ORS 192.660 is amended to read:
192.660. (1) Nothing contained in ORS 192.610 to 192.690 shall
be construed to prevent the governing body of a public body from
holding executive session during a regular, special or emergency
meeting, after the presiding officer has identified the
authorization under ORS 192.610 to 192.690 for the holding of
such executive session. Executive session may be held:
(a) To consider the employment of a public officer, employee,
staff member or individual agent. The exception contained in this
paragraph does not apply to:
(A) The filling of a vacancy in an elective office.
(B) The filling of a vacancy on any public committee,
commission or other advisory group.
(C) The consideration of general employment policies.
(D) The employment of the chief executive officer, other public
officers, employees and staff members of any public body unless
the vacancy in that office has been advertised, regularized
procedures for hiring have been adopted by the public body and
there has been opportunity for public input into the employment
of such an officer. However, the standards, criteria and policy
directives to be used in hiring chief executive officers shall be
adopted by the governing body in meetings open to the public in
which there has been opportunity for public comment.
(b) To consider the dismissal or disciplining of, or to hear
complaints or charges brought against, a public officer,
employee, staff member or individual agent, unless such public
officer, employee, staff member or individual agent requests an
open hearing.
(c) To consider matters pertaining to the function of the
medical staff of a public hospital licensed pursuant to ORS
441.015 to 441.063, 441.085, 441.087 and 441.990 (3) including,
but not limited to, all clinical committees, executive,
credentials, utilization review, peer review committees and all
other matters relating to medical competency in the hospital.
(d) To conduct deliberations with persons designated by the
governing body to carry on labor negotiations.
(e) To conduct deliberations with persons designated by the
governing body to negotiate real property transactions.
(f) To consider records that are exempt by law from public
inspection.
(g) To consider preliminary negotiations involving matters of
trade or commerce in which the governing body is in competition
with governing bodies in other states or nations.
(h) To consult with counsel concerning the legal rights and
duties of a public body with regard to current litigation or
litigation likely to be filed.
(i) To review and evaluate, pursuant to standards, criteria and
policy directives adopted by the governing body, the
employment-related performance of the chief executive officer of
any public body, a public officer, employee or staff member
unless the person whose performance is being reviewed and
evaluated requests an open hearing. The standards, criteria and
policy directives to be used in evaluating chief executive
officers shall be adopted by the governing body in meetings open
to the public in which there has been opportunity for public
comment. An executive session for purposes of evaluating a chief
executive officer or other officer, employee or staff member
shall not include a general evaluation of an agency goal,
objective or operation or any directive to personnel concerning
agency goals, objectives, operations or programs.
(j) To carry on negotiations under ORS chapter 293 with private
persons or businesses regarding proposed acquisition, exchange or
liquidation of public investments.
(k) By a health professional regulatory board to consider
information obtained as part of an investigation of licensee or
applicant conduct. Notwithstanding paragraph (b) or (c) of this
subsection, subsection (5) of this section or ORS 192.650, the
public disclosure of minutes, transcripts or recordings relating
to the substance and disposition of the matter investigated are
governed by ORS 676.175.
{ + (L) By the State Landscape Architect Board, or an
advisory committee to the board, to consider information obtained
as part of an investigation of registrant or applicant conduct.
Notwithstanding subsection (5) of this section or ORS 192.650,
the public disclosure of minutes, transcripts or recordings
relating to the substance and disposition of the matter
investigated is governed by section 6 of this 2001 Act. + }
(2) Labor negotiations shall be conducted in open meetings
unless both sides of the negotiators request that negotiations be
conducted in executive session. Labor negotiations conducted in
executive session are not subject to the notification
requirements of ORS 192.640.
(3) Representatives of the news media shall be allowed to
attend executive sessions other than those held under subsection
(1)(d) of this section relating to labor negotiations or
executive session held pursuant to ORS 332.061 (2) but the
governing body may require that specified information subject of
the executive session be undisclosed.
(4) When a governing body convenes an executive session under
subsection (1)(h) of this section relating to conferring with
counsel on current litigation or litigation likely to be filed,
the governing body shall bar any member of the news media from
attending the executive session if the member of the news media
is a party to the litigation or is an employee, agent or
contractor of a news media organization that is a party to the
litigation.
(5) No executive session may be held for the purpose of taking
any final action or making any final decision.
SECTION 11. ORS 671.310 is amended to read:
671.310. As used in ORS 671.310 to 671.459, unless the context
requires otherwise:
(1) 'Board' means the State Landscape Architect Board.
(2) 'Design' means layout, form and establishment of grades
{ + and tangible site features + } for { - the purpose
and - } services described in { + subsection (5) of + } this
section.
{ + (3) 'Landscape architect' means an individual who engages
in the practice of landscape architecture.
(4) 'Landscape architect in training' means a person registered
as a landscape architect in training under section 2 (3) of this
2001 Act. + }
{ - (3) - } { + (5) + } 'Landscape architecture' or the
'practice of landscape architecture' means the performance
of { + , or offer to perform, + } professional services
{ - such as consultation, investigation, reconnaissance,
research, design, preparation of drawings and specifications and
responsible supervision where - } { + that have + } the dominant
purpose of { - the services is: - } { + landscape
preservation, development and enhancement, including but not
limited to reconnaissance, research, planning, landscape and site
design, the preparation of related drawings, construction
documents and specifications and responsible construction
observation. 'Landscape architecture' or the 'practice of
landscape architecture' includes the location, arrangement and
design of tangible objects and features that are incidental and
necessary for landscape preservation, development and
enhancement.
(6) 'Landscape preservation, development and enhancement '
means: + }
(a) The preservation and { + aesthetic and functional + }
enhancement of land uses and natural land features;
(b) The location and construction of aesthetically pleasing and
functional { + systems, + } approaches { + and settings + } for
structures, roadways and walkways or other improvements for
natural drainage and erosion control; { - or - }
(c) Design for { - equestrian - } trails, { + pedestrian
systems, + } plantings, { - landscape - } irrigation,
{ - landscape - } { + site + } lighting { + , + } { - and
landscape - } grading { + and drainage and other site features;
(d) Investigation, selection and allocation of land and water
resources for appropriate uses;
(e) Feasibility studies;
(f) Formulation of graphic and written criteria to govern the
planning and design of land conservation programs;
(g) Preparation, review and analysis of master plans for land
use and development;
(h) Production of overall site plans, plans for grading,
drainage, irrigation and planting, and related construction
details;
(i) Development specifications, cost estimates and reports;
(j) Collaboration in the design of roads, bridges and
structures with respect to the functional and aesthetic
requirements of the areas where the roads, bridges and structures
are to be placed;
(k) Negotiation and arrangement for execution of land area
projects; and
(L) Field observation of land area construction, restoration
and maintenance + }.
{ - (4) - } { + (7) + } 'Registered landscape architect'
means a person registered as a landscape architect under ORS
671.310 to 671.459.
{ + (8) 'Site features' means constructed surfaces, steps,
retaining walls, fences, arbors, trellises, benches, decks,
fountains, ponds, waterways, pools or other physical elements
constructed or proposed for construction in the landscape. + }
SECTION 12. ORS 671.312 is amended to read:
671.312. ORS 671.310 to 671.459 is enacted in order to
introduce qualifying criteria in the professional practice of
landscape architecture. This action is necessary to safeguard
{ + public + } health, safety, welfare and property and to
eliminate unnecessary loss and waste in this state. These
safeguards are in the practice of landscape architecture as it
relates to engineering, architecture, ground water, land use
planning, landscape hazards, the further development of the
practice of landscape architecture and the landscape
architectural concerns of the people of this state.
SECTION 13. ORS 671.345 is amended to read:
671.345. (1) The State Landscape Architect Board may register
as a landscape architect, without examination, any individual who
applies for such registration under ORS 671.325, and:
(a) On the date of making application is a landscape architect
licensed or registered under the laws of any other state or
territory of the United States, if the requirements for the
licensing or registration of landscape architects in the state or
territory in which the applicant is licensed or registered on the
date of licensing or registration in such state or territory were
substantially equal to the requirements for the registration of
landscape architects in this state on the date of the
application; or
(b) { - Has passed a national examination - } Within the
five years immediately preceding application { + has passed a
national examination acceptable to the board + }.
(2) Each applicant under this section shall pay at the time of
filing the application an original registration fee for
registration of an out-of-state landscape architect as provided
in ORS 671.365.
SECTION 14. ORS 671.376 is amended to read:
671.376. (1) Each registrant who desires to continue as a
landscape architect { + or landscape architect in training + }
in this state shall annually pay to the State Landscape Architect
Board on or before the renewal date of October 31 the fee for
renewal of registration required under ORS 671.365 (5). Upon
payment the board administrator shall issue to the registrant a
certificate of renewal of registration for a period of one year.
(2) If a registrant fails to have a certificate renewed on or
before October 31, the registrant shall be deemed delinquent.
However, the registrant may renew the certificate not later than
November 30, with a late fee, upon payment of the renewal fee, or
after November 30, upon payment of the renewal fee plus a late
fee in an amount to be prescribed by the board by rule.
(3) Any person who fails to pay the renewal fee and any late
fee for a period of 60 days, forfeits the right to be a
registered landscape architect { + or landscape architect in
training + } and may be reinstated as a landscape architect
{ + or landscape architect in training + } only upon passing
examinations required by the board and by paying any required
examination fees, renewal fees and late fees.
(4) The board may grant { - a suspension - } { + inactive
status + } to any registered landscape architect who gives up the
practice of landscape architecture as defined in ORS 671.310 and
while in good standing makes { - such - } { + a + } request
in writing to the board. The
{ - suspended - } { + inactive + } landscape architect may
resume { - the - } practice within five years upon payment of
the annual fees for the renewal of registration for the current
year. If the { - suspended - } { + inactive + } landscape
architect fails to renew the registration within five years, the
{ - suspended - } { + inactive + } landscape architect may
{ - be reinstated - } { + resume practice + } only upon
passing examinations required by the board and by paying any
required examination fees, renewal fees and late fees.
SECTION 15. ORS 671.395 is amended to read:
671.395. (1) The State Landscape Architect Board may establish
or approve programs of continuing education that contribute to
the competency of landscape architects. The board may charge a
fee for programs of continuing education it establishes.
(2) { + The board may require completion of + } a program of
{ + continuing + } education established or approved under this
section
{ - is not required - } { + as a condition + }for the
issuance or renewal of registration { + as a landscape
architect + } under ORS 671.310 to 671.459.
SECTION 16. ORS 671.404 is amended to read:
671.404. Subject to ORS 183.310 to 183.550, the State Landscape
Architect Board may refuse to register any applicant, may refuse
to renew the registration of any registered landscape architect
{ + or landscape architect in training, + } or may suspend for a
period not exceeding one year or revoke the registration of any
registered landscape architect { + or landscape architect in
training + } if the board finds that the applicant or registrant
is a person who:
(1) Has { - obtained or attempted - } { + used dishonesty,
fraud or deceit in obtaining or attempting + } to obtain
registration under ORS 671.310 to 671.459 { + + } { - by fraud
or material misrepresentation. - } { + , including but not
limited to dishonesty, fraud or deceit in applying for
registration, applying to sit for an examination or passing an
examination. + }
(2) Is impersonating or has attempted to impersonate a
registered landscape architect or a former registered landscape
architect, or is practicing under an assumed or fictitious name.
(3) Is found by the board to have used { + dishonesty, + }
fraud or deceit or to have been { - grossly - }
negligent { + , + } in the practice of landscape architecture.
(4) Has affixed the person's signature to plans, reports or
other professional documents that have not been prepared by the
person or under the person's immediate and responsible direction
or has permitted the use of the person's name for the purpose of
assisting any individual, not a registered landscape architect,
to evade the provisions of ORS 671.310 to 671.459.
(5) Has been found to have violated ethical or professional
standards by a court or administrative body in another state for
committing or omitting acts { - which - } { + that + }, if
committed or omitted in this state, would be a violation of
ethical or professional standards established pursuant to
{ - this chapter - } { + ORS 671.310 to 671.459 + }. A
certified copy of the record of suspension or revocation of the
state making { - such - } { + the + } suspension or
revocation is conclusive evidence thereof.
{ + (6) Has willfully evaded or attempted to evade a local or
state law, ordinance, code or rule, governing the construction of
landscapes or other site features. + }
SECTION 17. ORS 671.412 is amended to read:
671.412. { + (1) + } { - When - } The state or
{ - any - } { + a + } political subdivision { - therein
contracts - } { + may contract + } for landscape
{ - architectural - } { + architecture + } service projects
{ - , the contracts shall be - } { + only + } with registered
landscape architects, as defined in ORS 671.310.
{ + (2) Drawings, plans, specifications, estimates and
construction observation for public works of the state or a
political subdivision that require landscape architecture
services must be prepared by, or under the direct supervision of,
a landscape architect registered in an appropriate category. + }
SECTION 18. ORS 671.425 is amended to read:
671.425. If the State Landscape Architect Board revokes the
registration of a registered landscape architect { - for gross
negligence in the practice of landscape architecture - } under
ORS 671.404, the board may issue registration under ORS 671.310
to 671.459 to the individual whose registration is revoked if the
individual:
(1) Files a new application for the registration and passes an
examination given by the board; and
(2) Establishes to the satisfaction of the board that all loss
caused by the { - gross negligence - } { + acts + } for which
the license was revoked has been fully satisfied and that the
individual has complied with all conditions imposed by the
decision of revocation.
SECTION 19. ORS 671.435 is amended to read:
671.435. { + (1) + } The State Landscape Architect Board may
impose a civil penalty against any person who violates any
provision of ORS 671.310 to 671.459 or any rule adopted
thereunder. The penalty shall be imposed in the manner provided
by ORS 183.090. { + The board shall determine the amount of + }
a civil penalty imposed under this section { + , + } { - shall
be in an amount determined by the board of not more than
$1,000 - } { + not to exceed $5,000 + } for each offense.
Notwithstanding ORS 670.335, civil penalties recovered under this
section shall be deposited into an account established by the
board as provided under ORS 182.470. Moneys deposited are
appropriated continuously to the board { - and shall be used
only - } for the administration and enforcement of ORS 182.456 to
182.472 and 671.310 to 671.459. The Attorney General shall bring
an action in the name of the State of Oregon in a court of
appropriate jurisdiction to enforce any civil penalty imposed
under this section.
{ + (2) In determining the amount of a civil penalty imposed
under this section, the board may consider:
(a) The seriousness of the violation;
(b) The economic benefit to the violator resulting from the
violation;
(c) Whether the violator has previously committed violations;
and
(d) Other factors that the board finds appropriate. + }
SECTION 20. ORS 671.445 is amended to read:
671.445. The State Landscape Architect Board may { + , + }
{ - : - }
{ - (1) - } upon motion of the board or upon the verified
complaint in writing of any person, investigate any alleged
violation of ORS 671.310 to 671.459. { + As part of the
investigation, the board may administer oaths, obtain and receive
evidence at board proceedings and compel compliance with board
subpoenas, all as provided in ORS 670.315. + }
{ - (2) Disregard any complaint filed more than two years
after the act or omission alleged as a violation of ORS 671.310
to 671.459. - }
SECTION 21. ORS 671.459 is amended to read:
671.459. (1) The State Landscape Architect Board shall operate
as a semi-independent state agency subject to ORS 182.456 to
182.472 for the purpose of carrying out ORS 671.310 to 671.459.
The board shall consist of { - five - } { + seven + } members
to be appointed by the Governor. { - Three - } { + Four + }
of the members shall be registered landscape architects,
{ - two - } { + three + } shall be public members, and all
shall be residents of this state. The chair of the board shall be
elected by the board from among the current members.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the Governor. Before the
expiration of the term of a member, the Governor shall appoint a
successor whose term begins on July 1 next following. A member is
eligible for reappointment.
SECTION 22. { + Notwithstanding ORS 671.459 (2), the Governor
may reduce the initial term of office for persons first appointed
to the two State Landscape Architect Board positions created by
the amendments to ORS 671.459 by section 21 of this 2001 Act to
ensure the staggered expiration of board member terms. + }
SECTION 23. { + (1) ORS 671.315 and 671.454 are repealed.
(2) Section 22 of this 2001 Act is repealed January 1,
2006. + }
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