A BILL TO BE ENTITLED
AN ACT to rewrite the laws regulating landscape contractors, to include irrigation contractors under the laws regulating landscape contractors, and to authorize the board to increase fees.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 89D‑1 through G.S. 89D‑10 are repealed.
SECTION 2.  Chapter 89D is amended by adding the following new sections to read:
"§ 89D-11.  Definitions.
The following definitions apply in this Chapter:
(1)	Board. – The North Carolina Landscape/Irrigation Contractors' Licensing Board.
(2)	Irrigation contractor. – Any person who, for compensation or other consideration, does any of the following:
a.	Constructs, installs, or maintains landscape irrigation systems.
b.	Constructs, installs, or maintains landscape drainage systems.
(3)	Irrigation construction or contracting. – The act of providing services as an irrigation contractor, as defined in this section, for compensation or other consideration.
(4)	Landscape contractor. – Any person who, for compensation or other consideration, does any of the following:
a.	Engages in the business requiring the art, experience, ability, knowledge, science, and skill to install, plant, repair, and maintain gardens, lawns, shrubs, vines, trees, or other decorative vegetation including the grading and preparation of plots and areas of land for decorative treatment and arrangement.
b.	Practices the act of horticultural consultation or planting design for employment purposes.
c.	Constructs, installs, or maintains landscape drainage systems.
d.	Engages in the incidental construction of garden pools, fountains, pavilions, conservatories, hothouses and greenhouses, retaining walls, fences, or walks.
(5)	Landscape construction or contracting. – The act of providing services as a landscape contractor, as defined in this section, for compensation or other consideration.
(6)	Person. – An individual, firm, partnership, association, corporation, or other legal entity."§ 89D-12.  License required; use of seal; posting license.
(a)	Except as otherwise provided in this Chapter, no person shall engage in the practice of landscape construction or contracting, use the designation 'landscape contractor', or advertise using any title or description that implies licensure as a landscape contractor unless the person is licensed as a landscape contractor as provided by this Chapter. All landscape construction or contracting performed by a partnership, association, corporation, firm, or other group shall be under the direct supervision of an individual licensed by the Board under this Chapter.
(b)	Except as otherwise provided in this Chapter, no person shall engage in the practice of irrigation construction or contracting, use the designation 'irrigation contractor', or advertise using any title or description that implies licensure as an irrigation contractor unless the person is licensed as an irrigation contractor by the Board as provided by this Chapter. All irrigation construction or contracting performed by a partnership, association, corporation, firm, or other group shall be under the direct supervision of an individual licensed by the Board under this Chapter.
(c)	Nothing in this Chapter shall be construed to authorize a landscape contractor to engage in the practice of landscape architecture as defined in G.S. 89A-1.
(d)	Nothing in this Chapter shall be construed to authorize a landscape contractor to engage in the practice of engineering as defined in G.S. 89C-3.
(e)	Nothing in this Chapter shall be construed to authorize a landscape contractor or irrigation contractor to practice as a well contractor certified under Article 7A of Chapter 87 of the General Statutes.
(f)	Upon licensure by the Board, each landscape contractor or irrigation contractor shall obtain a seal of the design authorized by the Board and bearing the name of the licensee, the number of the license, and the legend 'N.C. Licensed Landscape Contractor' or 'N.C. Licensed Irrigation Contractor'. A landscape contractor or irrigation contractor may use the seal only while the license is valid.
(g)	Every landscape contractor or irrigation contractor issued a license under this Chapter shall display the license conspicuously in the contractor's place of business. Every landscape contractor and every irrigation contractor shall display the license number issued to the contractor by the Board on all business cards, contracts, and vehicles used by the contractor in the landscape or irrigation contracting business.
"§ 89D-13.  Exemptions.
(a)	The provisions in this Chapter shall not apply to:
(1)	Any federal, State, or local governmental agency performing landscape work on public property.
(2)	Any property owner performing landscape or irrigation work on his or her own property.
(3)	Any person performing landscape work where the price of all contracts for labor, material, and other items for a given jobsite during any consecutive 12-month period is less than seven thousand five hundred dollars ($7,500).
(4)	Any person performing irrigation work where the price of all contracts for labor, material, and other items for a given jobsite during any consecutive 12-month period is less than one thousand five hundred dollars ($1,500).
(5)	Any person or business licensed pursuant to Article 1 of Chapter 87 of the General Statutes.
(6)	A professional engineer licensed pursuant to Chapter 89C of the General Statutes.
(b)	An individual or a business engaged in the following activities shall not be required to obtain a license under this Article for performing that activity only:
(1)	Clearing and grading plots and areas of land.
(2)	Erosion control.
(3)	Arboriculture, including consultations on pruning and removal of trees.
(4)	Seed and sod installation.
(5)	Landscape construction engaged in by utilities contractors for the purpose of grading and erosion control.
(6)	Irrigation work relating to agriculture or aquaculture as defined in Chapter 106 of the General Statutes.
(7)	Irrigation work related to municipal or industrial wastewater, excluding reuse water application. 
(8)	Irrigation work relating to municipal stormwater.
(9)	Lawn mowing, turf edging, debris blowing, or debris removal services.
(10)	Design, installation, and maintenance of on-site wastewater disposal or reuse systems within the on-site wastewater permit specifications.
(11) 	Landscape architectural services provided by a person licensed under Chapter 89A of the General Statutes. (12)	Plumbing work performed by a person licensed under Article 2 of Chapter 87 of the General Statutes.
(13)	Landscape or irrigation or design work performed in the scope of employment on property owned or under the control of the employer."§ 89D-14.  The North Carolina Landscape/Irrigation Contractors' Licensing Board.
(a)	The North Carolina Landscape/Irrigation Contractors' Licensing Board is created. The Board shall consist of nine members who are appointed as follows:  one member by the Governor, one member by the President Pro Tempore of the Senate,  one member by the Speaker of the House of Representatives, one member by the Commissioner of Agriculture,  one member by the North Carolina Association of Nurserymen, Inc., two members by the North Carolina Landscape Association, Inc., one member by the North Carolina Chapter of the American Society of Landscape Architects, and one member by the Carolinas Irrigation Association. The members shall be appointed as follows:
(1)	The Governor shall appoint an at-large appointee.
(2)	The President Pro Tempore of the Senate shall appoint a licensed irrigation contractor in the business of irrigation construction or contracting, as recommended by the North Carolina Irrigation Society.
(3)	The Speaker of the House of Representatives shall appoint a licensed landscape contractor in the business of landscape construction or contracting.
(4)	The Commissioner of Agriculture appoint a person recommended by the Carolinas Irrigation Association.
(5)	The Board of Directors of the North Carolina Association of Nurserymen, Inc., shall appoint a practicing nurseryman operating a nursery certified by the North Carolina Department of Agriculture and Consumer Services Plant Pest Inspection Program.(6)	The Board of Directors of the North Carolina Landscape Association, Inc., shall appoint:
a.	A licensed landscape contractor in the business of landscape construction or contracting.
b.	A licensed landscape contractor in the business of landscape construction or contracting.
(7)	The North Carolina Chapter of the American Society of Landscape Architects shall appoint a registered landscape architect.
(8)	The Carolinas Irrigation Association shall appoint a licensed irrigation contractor in the business of irrigation construction or contracting.
(b)	Members of the Board shall serve three-year terms, staggered so that the terms of three members expire in one year, the terms of three members expire in the next year, and the terms of three members expire in the third year of each three-year period. No member shall serve more than two complete consecutive terms.
(c)	A vacancy on the Board created by death, resignation, or otherwise shall be filled in the same manner as the original appointment, except that all unexpired terms of Board members appointed by the General Assembly shall be filled in accordance with G.S. 120-122. Appointees to fill vacancies shall serve the remainder of the unexpired term and until their successors are appointed and qualified.
(d)	The Board shall elect annually a chair and other officers as it deems necessary to carry out the purposes of this Chapter and shall hold meetings at least twice a year. A majority of the Board shall constitute a quorum.
(e)	Each member of the Board may receive per diem and reimbursement for travel and subsistence as set forth in G.S. 93B-5.
(f)	The Board shall be entitled to the services of the Attorney General in connection with the affairs of the Board or may, in its discretion, employ an attorney to assist or represent it in the enforcement of this Chapter.
"§ 89D-15.  Powers and duties.
The Board shall have the following powers and duties:
(1)	To administer and enforce the provisions of this Chapter.
(2)	To adopt, amend, or repeal rules to carry out the provisions of this Chapter.
(3)	To examine and determine the qualifications and fitness of applicants for licensure and licensure renewal.
(4)	To issue, renew, deny, restrict, suspend, or revoke licenses.
(5)	To receive and investigate complaints from members of the public.
(6)	To conduct investigations to determine whether violations of this Chapter exist or constitute grounds for disciplinary action against licensees under this Chapter.
(7)	To conduct administrative hearings in accordance with Article 3A of Chapter 150B of the General Statutes.
(8)	To establish and approve continuing education requirements for persons licensed under this Chapter.
(9)	To employ a secretary-treasurer, clerical personnel, and others the Board deems necessary to carry out the provisions of this Chapter. 
(10) 	To fix compensation for employees.
(11)	To maintain a record of all proceedings conducted by the Board and make available to licensees and other concerned parties an annual report of all Board action.
(12)	To adopt and publish a code of professional conduct for all persons licensed under this Chapter.
(13)	To adopt and publish a code of minimum practice standards for landscape and irrigation construction.
(14)	To adopt a seal containing the name of the Board for use on licenses and official reports issued by the Board.
"§ 89D-16.  Application for license; qualifications; examination; issuance.
(a)	Upon application to the Board and the payment of the required fees, an applicant may sit for the examination under this Chapter as a landscape contractor or an irrigation contractor if the applicant submits evidence that demonstrates his or her qualifications as prescribed in rules adopted by the Board and meets all of the following qualifications:
(1)	Is at least 18 years of age.
(2)	Is of good moral character as determined by the Board.
(3)	For a landscape contractor's license, has at least three years of experience in landscape construction or contracting or the educational equivalent. For an irrigation contractor's license, has at least three years of experience in irrigation construction or contracting or the educational equivalent. Two years of educational training in landscape construction or contracting or irrigation construction or contracting shall be the equivalent of one year of experience.
(4)	Files with the Board and maintains a corporate surety bond executed by a company authorized to do business in this State or an irrevocable letter of credit issued by an insured institution. The surety bond or the letter of credit shall be in the amount of seven thousand five hundred dollars ($7,500). The surety bond or letter of credit shall be approved by the Board as to form and shall be conditioned upon the obligor's faithfully conforming to and abiding by the provisions of this Chapter. Any person claiming to be injured by an act of a licensed landscape contractor or a licensed irrigation contractor that constitutes a violation of this Chapter may institute an action to recover against the licensee and the surety.
(b)	If the applicant meets all the qualifications in subsection (a) of this section,  the applicant shall be required to pass an examination administered by the Board before the Board may issue the license. The Board shall establish the scope and subject matter of the examination to be administered. The Board shall recognize the Certified Irrigation Contractor (CIC) examination, or any other comparable examination, as an approved examination to become licensed as an irrigation contractor. 
(c)	Examinations shall be held at least twice a year at a time and place to be determined by the Board. 
(d)	When the Board determines that an applicant has met all the qualifications for licensure and has submitted the required fee, the Board shall issue a license to the applicant.
(e)	The Board may issue a license in the name of a corporation provided one or more of the officers or full-time employees that are empowered to act for the corporation are licensed in accordance with the provisions of this Chapter. In addition to the provisions of this Chapter, a corporation shall do all of the following when a license is issued in the name of the corporation:
(1)	The officer or full-time employee licensed under this Chapter who is empowered to act for the corporation shall execute contracts in the name of the corporation to the extent of the license qualifications of the individual.
(2)	The officer or full-time employee licensed under this Chapter shall exercise general supervision over the landscape or irrigation work performed under the contract.
(f)	An individual desiring to construct, install, or maintain landscape drainage systems shall not be required to hold both an irrigation contractor's license and a landscape contractor's license.
(g)	Persons who had an established place of business prior to January 1, 2004, and who produce satisfactory evidence that they are engaged in the landscape business as defined in G.S. 89D-11 and were not registered under G.S. 89D-1 through G.S. 
89D-10, may apply for a landscape contractor's provisional license on or before July 1, 2004. The Board shall issue a provisional license, valid up to July 1, 2006, if the applicant meets the qualifications under subdivisions (a)(1), (a)(2), and (a)(4) of this section and pays the proper fee. Before the Board may issue a license, the applicant must pass the examination under subsection (b) of this section after gaining the experience required under subdivision (a)(3) of this section.
(h)	Persons who had an established place of business prior to January 1, 2004, and who produce satisfactory evidence that they are engaged in the irrigation business as defined in G.S. 89D-11 and were not registered as a landscape contractor under G.S. 89D-1 through G.S. 89D-10 or were not qualified to receive an irrigation contractor's license on January 1, 2004, may apply for an irrigation contractor's provisional license on or before July 1, 2004. The Board shall issue a provisional license, valid up to July 1, 2006, if the applicant meets the qualifications under subdivisions (a)(1), (a)(2), and (a)(4) of this section and pays the proper fee. Before the Board may issue a license, the applicant must pass the examination under subsection (b) of this section after gaining the experience required under subdivision (a)(3) of this section. 
"§ 89D-17.  Reciprocity.
The Board may issue a license, without examination, to any person who is a landscape contractor or irrigation contractor licensed, certified, or registered in another state or country if the requirements for licensure, certification, or registration in the other state or country are substantially equivalent to the requirements for licensure in this State.
"§ 89D-18.  License renewal and continuing education.
(a)	Every license issued under this Chapter shall be renewed on or before the thirty-first day of December of each year. Any person who desires to continue to practice shall apply for a license renewal and shall submit the required fee. When necessary, the Board may require licensees to demonstrate continued competence as a condition of license renewal. Licenses that are not renewed shall be automatically revoked. A license may be renewed at any time within one year after its expiration if: (i) the applicant pays the required renewal fee and late renewal fee; (ii) the Board finds that the applicant has not used the license in a manner inconsistent with the provisions of this Chapter or engaged in the practice of landscape construction or contracting or irrigation construction or contracting after notice of revocation; and (iii) the applicant is otherwise eligible for licensure under the provisions of this Chapter. 
(b)	As a condition of license renewal, a licensee must meet the continuing education requirements set by the Board. Failure to obtain continuing education units shall result in the forfeiture of a license. 
(c)	Upon forfeiture, a person shall be required to submit a new application and retake the examination as provided in this Chapter.
"§ 89D-19.  Expenses and fees.
(a)	For licenses and provisional licenses, the Board may impose the following fees not to exceed the amounts listed below:
(1)	Application fee ………………………………………………...$100.00
(2)	Examination fee ………………………………………………...100.00
(3)	License renewal ………………………………………………...100.00
(4)	Late renewal fee …………………………………………………50.00
(5)	License by reciprocity ..………………………………………...250.00
(6)	Corporate license ……………………………………………….100.00
(7)	Duplicate license…………………………………………………25.00.
(b)	When the Board uses a testing service for the preparation, administration, or grading of examinations, the Board may charge the applicant the actual cost of the examination services.
"§ 89D-20.  Disciplinary action.
The Board may deny, restrict, suspend, or revoke a license or refuse to issue or renew a license if a licensee or applicant:
(1)	Employs the use of fraud, deceit, or misrepresentation in obtaining or attempting to obtain a license or the renewal of a license.
(2)	Practices or attempts to practice landscape construction or contracting or irrigation construction or contracting by fraudulent misrepresentation.
(3)	Commits an act of gross malpractice or incompetence as determined by the Board.
(4)	Has been convicted of or pled guilty or no contest to a crime that indicates that the person is unfit or incompetent to practice as a landscape contractor or irrigation contractor or that indicates that the person has deceived or defrauded the public.
(5)	Has been declared incompetent by a court of competent jurisdiction.
(6)	Has willfully violated any provision in this Chapter or any rules adopted by the Board.
(7)	Uses or attempts to use the seal in a fraudulent or unauthorized manner.
(8)	Fails to keep the bond or letter of credit in force.
"§ 89D-21.  Civil penalties.
(a)	In addition to taking any of the actions permitted under G.S. 89D-20, the Board may assess a civil penalty not in excess of two thousand dollars ($2,000) for each violation of any section of this Chapter or the violation of any rules adopted by the Board. All civil penalties collected by the Board shall be remitted to the school fund of the county in which the violation occurred.
(b)	Before imposing and assessing a civil penalty and fixing the amount of the penalty, the Board shall, as a part of its deliberations, take into consideration the following factors:
(1)	The nature, gravity, and persistence of the particular violation.
(2)	The appropriateness of the imposition of a civil penalty when considered alone or in combination with other punishment.
(3)	Whether the violation was willful and malicious.
(4)	Any other factors that would tend to mitigate or aggravate the violations found to exist.
"§ 89D-22.  Injunction to prevent violation; notification of complaints.
(a)	If the Board finds that a person who does not have a license issued under this Chapter is engaging in the practice of landscape construction or contracting or irrigation construction or contracting, the Board may appear in its own name in superior court in actions for injunctive relief to prevent any person from violating the provisions of this Chapter or the rules adopted by the Board.
(b)	A licensed landscape contractor or licensed irrigation contractor shall notify the Board, by registered mail, of any written complaints regarding a job related to landscape or irrigation work filed against the landscape contractor or irrigation contractor within 30 days from the date the complaint was filed."
SECTION 3.  Any person already registered as a landscape contractor on December 31, 2003, shall be issued a landscape contractor's license, without the requirement of examination, upon submission of a completed application and payment of the application fee on or before April 1, 2004.  Landscape contractors registered under Chapter 89D of the General Statutes shall not be required to renew the registration for calendar year 2004  to qualify for the landscape contractor's license.
SECTION 4.  Any person who has obtained a Certified Irrigation Contractor (CIC) certification through the Carolinas Irrigation Association or who has obtained a Certified Irrigation Designer (CID) certification on the effective date of this act shall be issued an irrigation contractor's license, without the requirement of examination, upon submission of a completed application and payment of the application fee on or before April 1, 2004.
SECTION 5.  Members serving on the North Carolina Landscape Contractors' Registration Board on the effective date of this act shall continue to serve until the North Carolina Landscape/Irrigation Contractors' Licensing Board is appointed.  All records, staff, funds, and other items of the North Carolina Landscape Contractors' Registration Board are transferred to and made the property of the North Carolina Landscape/Irrigation Contractors' Licensing Board.  
SECTION 6.  At its discretion, the Board may grant, without the requirement of examination, an irrigation contractor's license to a registered landscape contractor or a person who has obtained a Certified Landscape Irrigation Auditor (CLIA) certification through the Carolinas Irrigation Association and has three years of experience in irrigation contracting.
SECTION 7.  This act becomes effective January 1, 2004.