- The Practice of Landscape Architecture in New York
Any landscape architecture services performed for a project or site located in New York, whether for a New York client or an out-of-state client, are subject to the laws of this State and must be performed by a person licensed and registered or otherwise authorized to practice in New York.
- The Consequences of Engaging in Unlicensed or Unauthorized Practice
The laws of the State are clear in regard to unauthorized practice. Education Law Section 6512(1) makes it a class E felony for anyone not authorized to practice that practices or offers to practice or holds themselves out as being able to practice landscape architecture. Education Law Section 6509 defines professional misconduct as, among other things, permitting, aiding or abetting an unlicensed person to perform activities requiring a license. Furthermore, Education Law Section 6512(2) makes it a class E felony for anyone, including a public official, to knowingly aid or abet three or more unlicensed persons to practice a profession requiring a license.
- Licensure and Registration Requirements
In New York, professional licensure and registration is required to practice landscape architecture and utilize the title “Landscape Architect”. Upon satisfaction of the statutory requirements of Education Law Section 7324, a license may be awarded and is valid for the life of the holder unless revoked, annulled or suspended by the Board of Regents. To practice the profession, a current registration, renewable every three (3) years with the State Education Department, is required.
- Persons Able to Provide Landscape Architecture Services
According to Education Law Section 7322, “Only a person licensed or otherwise authorized to practice under this article shall practice landscape architecture or use the title ‘landscape architect.’” A “person licensed” is an individual who has been qualified by education, experience and examination and has been issued a New York landscape architecture license by the State Education Department.
Persons “otherwise authorized” may include an individual person licensed in another state that has applied for and received a limited permit to practice landscape architecture for a specific time period and on a specific project, within New York. Limited permits shall only be issued to individual persons and not to business entities or corporations of any kind. A limited permit only allows the individual permit holder to practice landscape architecture services in New York, and does not authorize a business entity to provide professional services. It allows an individual to practice landscape architecture in New York but only in connection with the specific project for which it is granted.
- Permissible Forms of Practice
Landscape architecture services in New York may be offered (often referred to as “holding out” to be able to practice) and provided by a sole proprietorship or the below types of entities:
- professional partnerships
- domestic and foreign professional service corporations (PC)
- design professional service corporations (DPC)
- domestic and foreign professional service limited liability companies (PLLC)
- domestic and foreign registered limited liability partnerships (LLP/RLLP)
- “grandfathered” general business corporations formed on or prior to April 1, 1961 and authorized under Education Law Section 7327(4) (unless “grandfathered”, a general business corporation is not permitted to render, or offer to render, landscape architecture services in New York.)
Sole proprietorship – A sole proprietorship occurs when a licensed and registered New York landscape architect offers and renders landscape architecture services as an individual.
Professional partnerships occur when two or more landscape architects form a partnership pursuant to the New York State partnership law. All partners in a professional partnership must be licensed and registered landscape architects in New York in order for the partnership to render, or offer to render, landscape architecture services in New York.
Professional Service Corporations (PC)
Landscape architecture services may be offered and provided by a professional service corporation (PC) authorized under Article 15 of the New York Business Corporation Law. Domestic PCs authorized under Article 15 are special corporations in which each of the shareholders, officers and directors must be licensed and registered in New York. Foreign PCs authorized under Article 15-A are required to have only the individual providing the professional service to be licensed and registered in New York although all of the officers, directors and shareholders must be licensed in some jurisdiction. The Department defines some jurisdiction as the jurisdiction in which the PC was originally formed.
Design Professional Service Corporations (DPC)
Business Corporation Law Section 1503 permits the incorporation of design professional service corporations (engineering, architecture, landscape architecture, land surveying, geology or any combination thereof) first organized on or after January 1, 2012, in which non-professionals may own less than 25 percent of the shares and may constitute less than 25 percent of director and officer positions. The shareholders of a design professional corporation may include employee stock ownership plans (ESOP) and employees of the corporation who are not licensed as design professionals, provided that:
- Greater than 75% of the outstanding shares of stock of the corporation are owned by design professionals;
- An ESOP, either in part or in its entirety, may not constitute part of the greater than 75% owned by design professionals;
- Greater than 75% of the directors are and were design professionals;
- Greater than 75% of the of the officers are and were design professionals;
- The president, the chairperson of the board of directors and the chief executive officer or officers are and were design professionals; and
- The single largest shareholder is and was either a design professional or an ESOP with greater than 75% of the plan’s voting trustees being design professionals and greater than 75% of the plan’s committee member’s being design professionals.
Professional Service Limited Liability Companies (PLLC)
Landscape architecture services may be offered and provided by a professional service limited liability company authorized under the Limited Liability Company Law, Article 12 or 13. Domestic PLLCs authorized under Article 12 and foreign PLLCs authorized under Article 13 may provide landscape architecture services if and only if all members and/or managers are licensed and registered in New York. Each member and/or manager of a foreign professional service limited liability company must be licensed in the original jurisdiction of the PLLC’s formation in addition to being licensed and registered in New York. Of important note is that domestic and foreign limited liability companies (as opposed to professional service limited liability companies), may not render, or offer to render, landscape architecture services in New York.
Registered Limited Liability Partnerships (LLP)
Landscape architectural services may be offered and provided by a registered limited liability partnership authorized under the New York Partnership Law, Article 8-B. Domestic and foreign LLPs authorized under Article 8-B may provide landscape architecture services if and only if all partners are licensed and registered in New York.
“Grandfathered “ General Business Corporations
Although extremely rare, there is one last special class of corporations that may legally offer and provide landscape architecture services in New York. These are general business corporations that were formed on or before April 1, 1961 and have continuously and lawfully engaged in the practice of landscape architecture in New York and whose chief executive officer is and was a landscape architect under the laws of the State of New York (often referred to as “grandfathered” corporations). These corporations must remain in full compliance of Education Law Section 7327(4) or risk losing their ability to offer landscape architecture services.
No other entity or individual except those described in the preceding may offer and provide landscape architecture services in New York. In particular, the fact that a general business corporation may be authorized under the laws of another state to practice there does not qualify the entity to offer and provide landscape architecture services in New York. It is also important to note that a person who is licensed (or otherwise authorized) to practice in New York and is an officer or employee of a general business corporation operating in New York or in a state other than New York cannot provide landscape architecture services in New York as an officer or employee of that firm.
Finally, in cases where an entity is not authorized to offer and provide landscape architecture services, such as a general contractor, that entity cannot subcontract with, or employ, a landscape architect in order to offer and provide landscape architecture services to a third party client. A landscape architect may not subcontract with an entity not authorized to provide landscape architecture services, for example a general contractor for the purposes of providing landscape architecture services.
The Offering of Multiple Design Services
Multiple professional design services (disciplines) may be practiced by a sole proprietorship (provided the sole proprietor is licensed in multiple disciplines), a professional partnership, a professional service corporation (PC), a design professional service corporation (DPC), a professional service limited liability company (PLLC), or a registered limited liability partnership (LLP). These disciplines are limited to the design professions licensed pursuant to Article 145, 147 and 148 (engineering, land surveying, geology, architecture, and landscape architecture).
- Sole proprietorship – If a sole proprietor is licensed in multiple disciplines, he or she may provide professional services only in the discipline(s) in which he or she is licensed and currently registered. For example, a sole proprietor who wishes to offer landscape architecture and architecture services would be required to be licensed and registered as a landscape architect and architect in New York. A sole proprietorship may not offer professional services outside the scope of practice of their licensed profession(s) nor employ others to do so.
- Professional Partnership – A professional partnership may offer or provide multiple services in the design professions provided there is a partner licensed and registered to practice each of the professions which the corporation is being organized to practice.
- PC – A domestic professional service corporation may offer or provide multiple services in the design professions provided that there is a shareholder, director, or officer licensed and currently registered in New York to practice each of the professions which the corporation is being organized to practice. In the case of a foreign professional service corporation that provides multiple services in the design professions, there must be a shareholder, director, or officer licensed and registered to practice each of the professions which the corporation is being organized to practice in New York and some jurisdiction. The Department defines some jurisdiction as the jurisdiction that the PC was originally formed in.
- DPC – A design professional service corporation may offer or provide multiple services in the design professions provided that there is a shareholder, director, or officer licensed and registered in New York to practice each of the professions which the corporation is being organized to practice.
- PLLC – A professional service limited liability company may offer or provide multiple services in the design professions provided there is a member or manager licensed and registered in New York to practice every professional service offered by the PLLC. In the case of foreign PLLC offering services in multiple design professions, each manager/owner must be licensed and registered to practice said profession in New York and licensed in the original jurisdiction.
- LLP – A registered limited liability partnership may provide multiple services in the design professions provided that there is a partner licensed and registered in New York to practice every professional service offered by the LLP. In the case of a foreign LLP offering services in multiple design professions, each partner must be licensed and registered to practice said profession in New York and licensed in the original jurisdiction.
- Landscape Architects Employed, or Retained by Contractors and Design Build
While there is nothing in Education Law that prohibits a landscape architect from being employed by a general contractor to perform non-professional services, the general contractor may not render, or offer to render, landscape architecture services in New York, typically referred to as “design-build”. The design-build delivery method may be seen as a violation of the Education Law. Typically, the CEO of the general contractor providing the services is not a landscape architect. Only a licensee may render, or offer to render, professional services. Such services may not be brokered by a third party. Additionally, the construction company is most likely a general business corporation. As such, it may not offer professional services. Even though in this scenario the professional services are being provided by a licensee, the services are being passed through an unlicensed corporation creating issues relating to illegal practice as well as unlawful profit sharing and fee splitting.
While the contracts between owner, landscape architect, and contractor may be memorialized into a single document for the design and construction of a project, the professional services and compensation of the landscape architect should flow directly between the owner and landscape architect. Pass through agreements, where professional services are offered through third parties, are generally unlawful in New York.
Nothing in this guideline shall prohibit a contractor from providing those services not requiring professional licensure under the Education Law Section 7326.
- Health of Landscape Architect
In New York, practicing landscape architecture while the ability to practice is impaired by alcohol, drugs, physical disability, or mental disability is professional misconduct. However, the Professional Assistance Program provides assistance and an opportunity for rehabilitation of a landscape architect. The landscape architect who has a substance abuse problem, but who has not harmed a client, may be referred to the Education Department – Office of the Professions’ Professional Assistance Program for confidential assistance as an alternative to a disciplinary proceeding. For additional information on the Professional Assistance Program, please see the State Education Department website at http:/about/professional-assistance-program
- Appropriate Titles and Professional Designations
Many landscape architects confer titles on senior staff to recognize contributions to the firm. The title may be conferred on a firm owner or a non-owner; titles such as "Associate" or "Director of Marketing" or "Director of Human Resources", are frequently conferred on non-licensed individuals.
The State Education Department and the State Board for Landscape Architecture believe that appropriate titles may be granted to both licensed and unlicensed employees as long as the title does not imply that an unlicensed title holder is a landscape architect.
"Landscape Architect" is a protected title. Only a person licensed and registered in New York can call himself/herself a landscape architect and offer landscape architecture services in New York. Anyone else using the title "landscape architect" may be prosecuted for committing a Class A misdemeanor and anyone else offering to perform landscape architectural services in this State may be charged with a Class E felony.
Similarly, care should be exercised in using derivatives of the word “landscape architect.” For example, unlicensed persons are prohibited from using derivatives of the word "landscape architect" or "landscape architecture" in conjunction with unrestricted titles as this may be viewed as misleading to the public when it is implied that professional services are being offered, e.g., "landscape architectural designer.”
The Department and the State Board for Landscape Architecture view some titles or derivations of certain titles as inappropriate; for instance, corporate titles such as "Vice President" conferred on an unlicensed person may mislead the public into believing that the person is a landscape architect. The title of "Principal" in entities other than a design professional service corporation (DPC) may also be misleading and should not be conferred on an unlicensed person. The title of “Principal” may be bestowed upon an employee of a DPC, given that non-licensees may own less than 25% of a DPC. The title "Director of Landscape Architectural Design" is also inappropriate for use by a non-licensee. It is important when selecting titles to make sure that the public will not be confused or led to believe that a Vice President or Principal or Director of Design is a licensee who can offer landscape architectural services, when he/she is not a landscape architect.
Generally, the title "Associate" is acceptable for a non-licensee as long as the employee and the employer do not imply that the associate is a landscape architect. Again, the title Director of Computer Services is acceptable since that title would not confuse the public nor would a title such as Chief Financial Officer.
It is important that when the titled employee is unlicensed that the firm's promotional materials do not imply that the individual practices landscape architecture or provides landscape architecture services. Unacceptable phrases could include the following:
- "one of the nation's leading designers"
- "his/her projects"
- "the recipient of national awards for design excellence"
- "among his/her highly regarded site designs are"
Acceptable verbiage would be "_____ participated in the planning and design of the award winning site design under the direction of _____, firm principal."
Graduates may use their degree after their name or may use an association membership designation. However, the degree or membership designation may not be used along with promotional materials to imply the user is a landscape architect, when in fact no license has been issued to the individual.
For those who are gaining the landscape architectural work experience required to become a landscape architect, the use of either "landscape architectural intern" or "intern landscape architect" is acceptable.
- Identification of Serious Code Violations
A landscape architect, who identifies a serious code violation on a project site with which he/she is, or might be associated in a professional capacity, should bring this situation to the attention of the appropriate parties. Appropriate steps to follow might include:
- The client, tenant or owner should be informed of such violations.
- Violations appearing to pose an imminent danger to the public’s health, safety, or welfare, should be reported to the local authority having jurisdiction.
- A landscape architect has a professional obligation to document the violation to both the client/owner and the authority having jurisdiction even if informing the client/owner might jeopardize receipt of the associated commission.
- If the code violations are present in the area of a potential project, and the landscape architect is assigned the commission, he/she should endeavor to have such violations included as an integral part of the scope of the design solution.
- Best Practices for Working Drawings and Specifications
On all drawings which are intended to convey landscape architecture information and services, a title block should be provided. The title block should contain:
- the name of the landscape architect;
- the license number and expiration date of the landscape architect’s registration;
- the name and location of the firm providing the landscape architecture services;
- the name of the project and project location;
- the client for whom the services have been provided;
- the date the work was completed.
In addition the title block may contain identification of those who prepared and checked the documents, as well as drawing numbers and such similar incidental items as are customary.
Working drawings and specifications submitted to public officials should not include the name of a non-licensed consultant.
Similar information shall be provided on the title page of all specifications and reports.
Landscape architects should legibly indicate their name and business address on all landscape architecture documents. Landscape architecture documents which are issued for preliminary or conceptual use shall clearly note the intended purpose of such documents. When elements of the project are shown on a landscape architecture document only for information or clarification and the landscape architect does not intend to accept responsibility for the elements, the landscape architect shall clearly note on the documents the extent of his/her responsibility. Additionally, a landscape architect should cite the source of existing condition information provided by others on working drawings and specifications.
Landscape architects should clearly note on any preliminary landscape architecture documents that such documents are not in final form, but are being transmitted to the public agency for review, comments and interpretations. The documents may subsequently be revised by the landscape architect to reflect resolution of issues with the public agency prior to final action by the agency. Changes, revisions and modifications to a project may prompt additional document submittal for agency approval action on the same project.
- Shop Drawings, Submittals and Delegation
The design professional responsible for construction administration must review all shop drawings and submittals for their compliance with the contract documents. The design professional will generally use a stamp containing a signature block which he or she will sign, or at a minimum initial. The stamp and a signed transmittal noting approval is adequate evidence that the submission "....conforms to the overall project design and can be integrated into such design....", all as required by the Regents.
Some shop drawings and submittals will also require the signature and certification of the licensed New York design professional who prepared that submission. When preparing contract documents, the design professional must require the component fabricator to have their submissions certified and signed by a New York licensed professional. Examples of such shop drawings and submittals include, but are not limited to:
Sign or kiosk post and panel systems
Stormwater management devices
Playground structure systems
Fountains and aquatic features
Green wall systems
Segmental retaining walls
Public Art Installations
During the construction administration phase of a project, many submittals, samples, catalogue cuts, etc. will not require the fabricator's certification. These will generally be for "off the shelf" items that represent standardized products or systems. In these instances, the design professional should be able to rely on the manufacturer's certification that the submittal meets the design criteria, standardized tests, and/or association standards. The design professional must still "review and approve" these submittals, but the signature and certification by the manufacturer's designer is not required. The manufacturer confirms to the contractor and the design professional the quantity and the quality of the product and that the contractor has the installation drawings.
Some submittals, often in the form of shop drawings indicating the interface of standard systems, are issued to the design professional for confirmation of design intent. For instance, the design professional puts together a performance specification for a railing system for a walkway that includes a stairway and ramp; the specifications describes loads, profiles, component materials, and finishes, etc., but does not list standard manufacturer's systems in order to keep competition open. In essence, the design professional has left the detail up to the successful low bidder. In this instance, the successful bidder must use a New York licensee to prepare, sign and certify the shop drawings. Following this, the design professional must "review and approve" those drawings and, in doing so, accept responsibility that the design conforms to the performance specifications, the overall project design and that it can be integrated into the project system. See also Practice Guideline B.12.
Shop Drawings: Drawings prepared by other than the project's design professional which show all or some of the following:
- the detailed construction of a design component or system to be incorporated into the construction
- the component or system’s interface with another system or systems
- the component or system’s methods or means of erection
- the material, joinery, color, pattern, or other changes within the component or system; such that the design professional's design intent is confirmed
Submittals: Actual material samples, brochures, cut sheets, mockups -- whether full scale or miniaturized -- or such other materials or samples required by the design professionals to confirm the quality of the design intent.
- Design Delegation
Under certain conditions, a primary design professional may delegate certain responsibilities to others, such as fabricators, manufacturers of system components, product manufacturers, etc. This “design delegation” may only occur under a protocol established by the Board of Regents. “Design delegation” allows the primary design professional to rely upon project components that are ancillary to the main components of the projects such as fabricator or manufacturer-designed systems or products to be designed by others without breaching the rules of unprofessional conduct. However, ”design delegation” can only occur when the primary design professional specifies in writing all parameters which the design must satisfy, issues performance criteria for manufactured-designed systems or products that must be designed by New York design professionals, and then reviews and approves the design for conformance with the established design specifications and parameters.
It is critical to note that primary design professionals cannot abdicate their responsibility for the design of their work by delegating to others. The Regents require design professionals to sign and certify their design. The primary design professional is still required to "review and approve" the fabricator's submission even though the fabricators' design professional signs and certifies his/her design.
Throughout the construction process, from the first meeting of client and primary design professional through completion of the project, all parties should know what is involved in the project and where the responsibilities lie in relationship to the work required by the Construction Contract Documents. The primary design firm should convey, in a manner they deem most appropriate, to the project owner, the contractor and the subcontractors, the full scope and nature of the project and those elements being delegated for design by another licensee. For the items being delegated that involve those design services for which a license is required, it should be stated clearly that those delegated design functions shall be performed by design professionals currently licensed and registered or otherwise authorized by the State Education Department.
The following protocol as defined in the Rules of the Board of Regents Paragraph 29.3(b)(2) and Paragraph 29.3(b)(3) shall serve as a guide to design delegation in accordance with New York State Law, Commissioner’s Regulations, and the Rules of the Board of Regents:
- A primary design professional (delegator) may delegate through, or a design professional (delegatee) may accept delegation from, a contractor or subcontractor (intermediate entity) for the design of specifically defined ancillary components or systems under the following circumstances:
- The primary design professional (delegator) must provide sufficient information, in writing, for the delegatee (the licensee to whom the work is delegated) to understand the scope and nature of the delegated work and its connection to the general design. The information that is required to perform the delegated design functions shall be commensurate with the nature of the project, and may include, but not be limited to, technical data, loads, references to the American Society for Testing and Materials and other performance standards, and other relevant and related conditions as appropriate and contained in the construction contract documents. (Subparagraph 29.3.b(2)(ii))
- The primary design professional (the delegator) shall provide performance specifications in writing for the delegated components or systems. The design professional to whom the design function has been delegated (the delegatee) shall design the component or system in accordance with the performance specifications. The delegatee should request any needed clarification in writing from the principal design professional through the Contractor/Subcontractor. (Subparagraph 29.3.b(2)(iii))
- The person responsible for the design of the component or system shall be a New York licensee, or otherwise authorized, and shall sign and certify his/her design work. (Subparagraph 29.3.b(2)(iv))
- The Construction Contract documents must specify how the designs will be certified as meeting the specifications and standards of practice expected of licensees in New York for projects of similar size and complexity. The delegatee will be professionally responsible for the delegated design work; therefore, before signing and certifying the work, a professional judgment should be made about the reliability and quality of the work. (Subparagraph 29.3(b)(2)(v))
- The primary design professional must review and determine that the delegated component or system design conforms to the performance specifications and any subsequent amendments; to the overall project design; and that it can be integrated into the design of the project. The primary design professional is required to provide written notification of the decision or the submittal may be so marked (e.g. Approved; Disapproved; Revise/Resubmit). If not approved, a clear explanation should be provided.(Subparagraph 29.3(b)(2)(vi)
- A primary design professional (delegator) may delegate through, or a design professional (delegatee) may accept delegation from, a contractor or subcontractor (intermediate entity) for the design of specifically defined ancillary components or systems under the following circumstances:
Citations of Pertinent Law, Rules or Regulations:
- Education Law, Section 6509 – “Definitions of professional misconduct”
- Education Law, Section 6512 – “Unauthorized practice a crime”
- Education Law, Section 6513 – “Unauthorized use of a professional title a crime”
- Education Law, Section 7321 – “Definition of practice of landscape architecture”
- Education Law, Section 7322 – “Practice of landscape architecture and use of title ‘landscape architect’”
- Education Law, Section 7324 – “Requirements for a professional license”
- Education Law, Section 7325 – “Limited permits”
- Education Law, Section 7326 – “Exempt persons”
- Education Law, Section 7327 – “Special provisions”
- Regents Rules, Section 29.1 – “General provisions.”
- Regents Rules, Section 29.3 – “General provisions for design professions.”