Bill Text: VA HB2101 | 2019 | Regular Session | Prefiled
Bill Title: Professional and Occupational Regulation, Department of; deregulation of certain practice.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2019-02-05 - Left in General Laws [HB2101 Detail]
Download: Virginia-2019-HB2101-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§13.1-543, 13.1-544, 13.1-545.1, 13.1-549, 13.1-550, 13.1-553, 13.1-1102, 13.1-1103, 13.1-1106, 13.1-1111, 13.1-1115, 15.2-851, 15.2-2263, 54.2-300, 54.1-400, 54.1-401, 54.1-402.2, 54.1-403, 54.1-404.2, 54.1-405, 54.1-407, 54.1-410, 54.1-411, 54.1-2200, 54.1-2200.2, 54.1-2201, 54.1-2206, 54.1-2207, 54.1-2208, 62.1-44.15:51, and 62.1-44.15:53 of the Code of Virginia are amended and reenacted as follows:
§13.1-543. Definitions.
A. As used in this chapter:
"Eligible employee stock ownership plan" means an employee stock ownership plan as such term is defined in §4975(e)(7) of the Internal Revenue Code of 1986, as amended, sponsored by a professional corporation and with respect to which:
1. All of the trustees of the employee stock ownership plan are individuals who are duly licensed or otherwise legally authorized to render the professional services for which the professional corporation is organized under this chapter; however, if a conflict of interest exists for one or more trustees with respect to a specific issue or transaction, such trustees may appoint a special independent trustee or special fiduciary, who is not duly licensed or otherwise legally authorized to render the professional services for which the professional corporation is organized under this chapter, which special independent trustee shall be authorized to make decisions only with respect to the specific issue or transaction that is the subject of the conflict;
2. The employee stock ownership plan provides that no shares, fractional shares, or rights or options to purchase shares of the professional corporation shall at any time be issued, sold, or otherwise transferred directly to anyone other than an individual duly licensed or otherwise legally authorized to render the professional services for which the professional corporation is organized under this chapter, unless such shares are transferred as a plan distribution to a plan beneficiary and subject to immediate repurchase by the professional corporation, the employee stock ownership plan or another person authorized to hold such shares; however:
a. With respect to a professional corporation rendering the professional services of public accounting or certified public accounting:
(1) The employee stock ownership plan may permit individuals who are not duly licensed or otherwise legally authorized to render these services to participate in such plan, provided such individuals are employees of the corporation and hold less than a majority of the beneficial interests in such plan; and
(2) At least 51 percent of the total of allocated and unallocated equity interests in the corporation sponsoring such employee stock ownership plan are held (i) by the trustees of such employee stock ownership plan for the benefit of persons holding a valid CPA certificate as defined in § 54.1-4400, with unallocated shares allocated for these purposes pursuant to § 409(p) of the Internal Revenue Code of 1986, as amended, or (ii) by individual employees holding a valid CPA certificate separate from any interests held by such employee stock ownership plan; and
b. With respect to a professional corporation rendering the
professional services of architects, professional engineers, land surveyors, landscape architects, or
certified interior designers, the employee stock ownership plan may permit
individuals who are not duly licensed to render the services of architects,
professional engineers, or land
surveyors, or landscape architects, or
individuals legally authorized to use the title of certified interior designers
to participate in such plan, provided such individuals are employees of the
corporation and together hold not more than one-third of the beneficial
interests in such plan, and that the total of the shares (i) held by
individuals who are employees but not duly licensed to render such services or
legally authorized to use a title and (ii) held by the trustees of such
employee stock ownership plan for the benefit of individuals who are employees
but not duly licensed to render such services or legally authorized to use a
title, shall not exceed one-third of the shares of the corporation; and
3. The professional corporation, the trustees of the employee stock ownership plan, and the other shareholders of the professional corporation comply with the foregoing provisions of the plan.
"Professional business entity" means any entity as defined in §13.1-603 that is duly licensed or otherwise legally authorized under the laws of the Commonwealth or the laws of the jurisdiction under whose laws the entity is formed to render the same professional service as that for which a professional corporation or professional limited liability company may be organized, including, but not limited to, (i) a professional limited liability company as defined in §13.1-1102, (ii) a professional corporation as defined in this subsection, or (iii) a partnership that is registered as a registered limited liability partnership registered under §50-73.132, all of the partners of which are duly licensed or otherwise legally authorized to render the same professional services as those for which the partnership was organized.
"Professional corporation" means a corporation whose
articles of incorporation set forth a sole and specific purpose permitted by
this chapter and that is either (i) organized under this chapter for the sole
and specific purpose of rendering professional service other than that of
architects, professional engineers, or land
surveyors, or landscape architects,
or using a title other than that of certified interior designers and, except as
expressly otherwise permitted by this chapter, that has as its shareholders or
members only individuals or professional business entities that are duly
licensed or otherwise legally authorized to render the same professional
service as the corporation, including the trustees of an eligible employee
stock ownership plan or (ii) organized under this chapter for the sole and
specific purpose of rendering the professional services of architects,
professional engineers, or land
surveyors, or landscape architects, or
using the title of certified interior designers, or any combination thereof,
and at least two-thirds of whose shares are held by persons duly licensed
within the Commonwealth to perform the services of an architect, professional
engineer, or land surveyor, or landscape architect, including
the trustees of an eligible employee stock ownership plan, or by persons
legally authorized within the Commonwealth to use the title of certified
interior designer; or (iii) organized under this chapter or under Chapter 10 (§
13.1-801 et seq.) for the sole and specific purpose of rendering the
professional services of one or more practitioners of the healing arts,
licensed under the provisions of Chapter 29 (§54.1-2900 et seq.) of Title
54.1, or one or more nurse practitioners, licensed under Chapter 29 (§
54.1-2900 et seq.) of Title 54.1, or one or more optometrists licensed under
the provisions of Chapter 32 (§54.1-3200 et seq.) of Title 54.1, or one or
more physical therapists and physical therapist assistants licensed under the
provisions of Chapter 34.1 (§54.1-3473 et seq.) of Title 54.1, or one or more
practitioners of the behavioral science professions, licensed under the provisions
of Chapter 35 (§54.1-3500 et seq.), 36 (§54.1-3600 et seq.) or 37 (§
54.1-3700 et seq.) of Title 54.1, or one or more practitioners of audiology or
speech pathology, licensed under the provisions of Chapter 26 (§54.1-2600 et
seq.) of Title 54.1, or one or more clinical nurse specialists who render
mental health services licensed under Chapter 30 (§54.1-3000 et seq.) of Title
54.1 and registered with the Board of Nursing, or any combination of
practitioners of the healing arts, optometry, physical therapy, the behavioral
science professions, and audiology or speech pathology, and all of whose shares
are held by or all of whose members are individuals or professional business
entities duly licensed or otherwise legally authorized to perform the services
of a practitioner of the healing arts, nurse practitioners, optometry, physical
therapy, the behavioral science professions, audiology or speech pathology or
of a clinical nurse specialist who renders mental health services, including
the trustees of an eligible employee stock ownership plan; however, nothing
herein shall be construed so as to allow any member of the healing arts,
optometry, physical therapy, the behavioral science professions, audiology or
speech pathology or a nurse practitioner or clinical nurse specialist to
conduct his practice in a manner contrary to the standards of ethics of his
branch of the healing arts, optometry, physical therapy, the behavioral science
professions, audiology or speech pathology, or nursing, as the case may be.
"Professional service" means any type of personal
service to the public that requires as a condition precedent to the rendering
of such service or use of such title the obtaining of a license, certification,
or other legal authorization and shall be limited to the personal services
rendered by pharmacists, optometrists, physical therapists and physical
therapist assistants, practitioners of the healing arts, nurse practitioners,
practitioners of the behavioral science professions, veterinarians, surgeons,
dentists, architects, professional engineers, land surveyors, landscape architects, certified
interior designers, public accountants, certified public accountants,
attorneys-at-law, insurance consultants, audiologists or speech pathologists,
and clinical nurse specialists. For the purposes of this chapter, the following
shall be deemed to be rendering the same professional service:
1. Architects, professional engineers, and land surveyors; and
2. Practitioners of the healing arts, licensed under the provisions of Chapter 29 (§54.1-2900 et seq.) of Title 54.1; nurse practitioners, licensed under the provisions of Chapter 29 (§54.1-2900 et seq.) of Title 54.1; optometrists, licensed under the provisions of Chapter 32 (§54.1-3200 et seq.) of Title 54.1; physical therapists and physical therapist assistants, licensed under the provisions of Chapter 34.1 (§54.1-3473 et seq.) of Title 54.1; practitioners of the behavioral science professions, licensed under the provisions of Chapters 35 (§54.1-3500 et seq.), 36 (§54.1-3600 et seq.), and 37 (§54.1-3700 et seq.) of Title 54.1; and one or more clinical nurse specialists who render mental health services, licensed under Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 and are registered with the Board of Nursing.
B. Persons who practice the healing art of performing professional clinical laboratory services within a hospital pathology laboratory shall be legally authorized to do so for purposes of this chapter if such persons (i) hold a doctorate degree in the biological sciences or a board certification in the clinical laboratory sciences and (ii) are tenured faculty members of an accredited medical school that is an "institution" as that term is defined in §23.1-1100.
§13.1-544. Who may organize and become shareholder.
A. An individual or group of individuals (i) duly licensed or
otherwise legally authorized to render the same professional services other
than those of architects, professional engineers or land surveyors, or to use a
title other than those of certified landscape architects or that of certified
interior designers, of which at least one is duly licensed or otherwise legally
authorized to render such professional services within the Commonwealth, or
(ii) complying with the provisions of §13.1-549 and duly licensed to render
within the Commonwealth the professional services of architects, professional
engineers or land surveyors, or legally authorized to use within the
Commonwealth the title of certified landscape architects or certified interior
designers, or any combination thereof, may organize a professional corporation
for pecuniary profit under the provisions of Chapter 9 (§13.1-601 et seq.) of
this title or organize a professional corporation as a nonstock corporation
under the provisions of Chapter 10 (§13.1-801 et seq.) of this title, for the
sole and specific purpose of rendering the same and specific professional
service, subject to any laws, not inconsistent with the provisions of this
chapter, which are applicable to the practice of that profession in the
corporate form.
B. An eligible employee stock ownership plan or any individual or group of individuals described in clause (i) or (ii) of subsection A may become a shareholder or shareholders of a professional corporation for pecuniary profit under the provisions of Chapter 9 (§13.1-601 et seq.) of this title, for the sole and specific purpose of rendering the same and specific professional service, subject to any laws, not inconsistent with the provisions of this chapter, that are applicable to the practice of that profession in the corporate form.
C. Any individual or group of individuals described in clause (i) or (ii) of subsection A may become a member or members of a professional corporation organized as a nonstock corporation under the provisions of Chapter 10 (§13.1-801 et seq.) of this title for the sole and specific purpose of rendering such professional services, subject to any laws, not inconsistent with the provisions of this chapter, that are applicable to the practice of that profession in the corporate form.
§13.1-545.1. Merger with foreign professional corporation or foreign professional limited liability company.
Any corporation organized under this chapter may merge with
one or more foreign professional corporations that have obtained a certificate
of authority to transact business in the Commonwealth pursuant to §13.1-544.2,
or one or more foreign professional limited liability companies that have
obtained a certificate of registration to transact business in the Commonwealth
pursuant to §13.1-1105, only if the professional corporations and the
professional limited liability companies are organized to render the same
professional service, provided that (i) the merger is permitted by the laws of
the jurisdiction under which each such foreign professional corporation or
foreign professional limited liability company is organized, (ii) if the
surviving or new professional business entity is a professional corporation
organized and operating under the laws of the Commonwealth, all of its
shareholders shall be licensed or otherwise legally authorized to render the
same professional service as the corporation, provided that if such service is
that of architects, professional engineers, land surveyors or certified
landscape architects, or any combination thereof, at least two-thirds of its
shares shall be held by individuals who are licensed or otherwise legally
authorized within the Commonwealth to render the applicable service, and (iii)
if the surviving or new professional business entity is a professional limited
liability company organized and operating under the laws of the Commonwealth,
all of its members and managers shall be licensed or otherwise legally
authorized to render the same professional service as the professional limited
liability company, provided that if such service is that of architects,
professional engineers, or land surveyors or certified
landscape architects, or any combination thereof, at least
two-thirds of its membership interests shall be held by individuals or
professional business entities that are licensed or otherwise legally
authorized within the Commonwealth to render the applicable service.
§13.1-549. Qualifications of shareholders; special provisions for corporations rendering services of architects, professional engineers, and land surveyors, and using the title of certified interior designers.
A. A corporation rendering the services of architects,
professional engineers, or land
surveyors, or landscape architects, or
using the title of certified interior designers, or any combination thereof,
shall issue not less than two-thirds of its shares to individuals or
professional business entities duly licensed to render the services of
architect, professional engineer, or land
surveyor, or landscape architect, or to
individuals legally authorized to use the title of certified interior designer,
and the remainder of said shares may be issued only to and held by individuals
who are employees of the corporation whether or not such employees are licensed
to render professional services or authorized to use a title. For a corporation
using the title of certified interior designers and providing the services of
architects, professional engineers or land surveyors, or any combination
thereof, not less than two-thirds of its shares shall be held by individuals or
professional business entities who are duly licensed. No other professional
corporation, except for a corporation engaged in the practice of accounting as
described in §13.1-549.1, may issue any of its shares to anyone other than an
individual or professional business entity who is duly licensed or otherwise
legally authorized to render the same specific professional services as those for
which the corporation was incorporated, including trustees of an eligible
employee stock ownership plan. Notwithstanding the above limitations, a
professional corporation may (i) issue its shares to a partnership each of the
partners of which is duly licensed or otherwise legally authorized to render
the same professional services as those for which the corporation was
incorporated or (ii) issue any of its shares to, and have as shareholders,
directly or indirectly, whether through shares, fractional shares, or rights or
options to purchase shares, the trustees of an eligible employee stock
ownership plan.
B. As an additional prerequisite for a corporation engaging in
the practice of the professions of architecture, professional engineering,
or land surveying, or landscape architecture, or
using the title of certified interior designer, or any combination thereof,
such corporation shall secure a certificate of authority, which may be
renewable and may be either general or limited, from the Board for Architects,
Professional Engineers, Land Surveyors, and Certified
Interior Designers and Landscape Architects.
Such certificate of authority shall be issued or renewed by the Board when in
its discretion such corporation is in compliance with rules and regulations
which shall be promulgated by the said Board consistent with its jurisdiction
to provide adequate safeguards for the public's health, welfare and safety. The
fees for a certificate of authority as described above shall be the same fees
as provided for in Chapter 4 (§54.1-400 et seq.) of Title 54.1.
§13.1-550. Transfer of shares.
A. No shareholder of a corporation organized under this
chapter may sell or transfer his shares in such corporation except to (i) the
corporation, (ii) another individual or professional business entity who is
eligible to be a shareholder of such corporation, (iii) a qualified charitable
remainder trust as defined in subsection B, or (iv) the trustees of an eligible
employee stock ownership plan. In the case of a corporation rendering the
services of architects, professional engineers, and land
surveyors
and certified landscape architects, or any combination thereof, no
person who is not duly licensed or otherwise legally authorized to render one
such service shall be eligible unless at least two-thirds of the remaining
shares after the sale or transfer shall be held by individuals or professional
business entities duly licensed or otherwise legally authorized to perform one
such service.
B. As used in this section, "qualified charitable remainder trust" means a trust meeting the requirements of §664 of the United States Internal Revenue Code of 1986, as amended, and which meets all of the following conditions:
1. Has one or more current income beneficiaries, all of which are eligible to be a shareholder in the corporation under §13.1-544.
2. Has a trustee or independent special trustee who:
a. Is eligible to be a shareholder in the corporation under § 13.1-544; and
b. Has exclusive authority over the shares of the corporation while the shares are held in the trust.
3. Has one or more irrevocably designated charitable remaindermen, all of which must at all times be domiciled or maintain a local chapter in the Commonwealth of Virginia.
4. When transferring any assets during the term of the trust to charitable organizations, the distributions are made only to charitable organizations described in §170(c) of the Internal Revenue Code that are domiciled or maintain a local chapter in this Commonwealth.
§13.1-553. Board of directors.
A. Except as provided in an agreement adopted pursuant to §
13.1-671.1 or 13.1-852.1 that is not in conflict with §13.1-544, a
professional corporation organized pursuant to the provisions of this chapter
shall be governed by a board of directors, which shall have the full management
of the business and affairs of the corporation and continuing exclusive
authority to make management decisions on its behalf, including the power and
authority to delegate to its agents, officers, and employees, and to delegate
by a management agreement or another agreement with, or otherwise to, other
persons managerial duties and tasks related to the corporation's operations,
and no shareholder or member shall have the power to bind the corporation
within the scope of its business or profession merely by virtue of his being a
shareholder or member. To the extent the board of directors is eliminated or
its make-up or manner of selection is modified by an agreement adopted pursuant
to §13.1-671.1 or 13.1-852.1, only individuals or entities licensed or
otherwise legally authorized to render the same professional services within
the Commonwealth as the services provided by the professional corporation or
its shareholders or members shall supervise and direct the provision of
professional services of that professional corporation or its shareholders or
members within the Commonwealth; however, in the case of a corporation
rendering the services of architects, professional engineers, land surveyors, landscape architects, or
certified interior designers, or any combination thereof, such supervision and
direction may be provided by individuals who are employees of the corporation
and are not duly licensed to render such professional services so long as at
least two-thirds of the individuals providing such supervision and direction
are employees of the corporation and duly licensed to render such professional
services.
B. The articles of incorporation may prescribe the manner in
which the board of directors shall be chosen and the number thereof. No
individual not duly licensed or otherwise duly authorized to render the
professional services of the corporation shall be a member of the board of directors,
except that the board of directors of a corporation rendering the services of
architects, professional engineers, land surveyors, landscape
architects, or certified interior designers, or any
combination thereof, may have as members employees of the corporation who are
not authorized to render the professional services of the corporation, provided
that such employee-directors do not constitute more than one-third of all of
the members of the board of directors.
C. The board of directors, including the first board of directors, shall consist of one or more individuals. The number of directors shall be fixed by the bylaws except as to the number of the first board of directors, which shall be fixed by the articles of incorporation. The number of directors may be increased or decreased from time to time by amendment of the bylaws, unless the articles of incorporation provide that a change in the number of directors shall be made only by amendment of the articles of incorporation. In the absence of a bylaw fixing the number of directors, the number shall be the same as that stated in the articles of incorporation.
§13.1-1102. Definitions.
A. As used in this chapter:
"Professional business entity" means any entity as defined in §13.1-603 that is duly licensed or otherwise legally authorized under the laws of the Commonwealth or the laws of the jurisdiction under whose laws the entity is formed to render the same professional service as that for which a professional corporation or professional limited liability company may be organized, including, but not limited to, (i) a professional limited liability company as defined in this subsection, (ii) a professional corporation as defined in subsection A of §13.1-543, or (iii) a partnership that is registered as a registered limited liability partnership under §50-73.132, all of the partners of which are duly licensed or otherwise legally authorized to render the same professional services as those for which the partnership was organized.
"Professional limited liability company" means a
limited liability company whose articles of organization set forth a sole and
specific purpose permitted by this chapter and that is either (i) organized
under this chapter for the sole and specific purpose of rendering professional
service other than that of architects, professional engineers, or land surveyors, or landscape architects, or
using a title other than that of certified interior designers and, except as
expressly otherwise permitted by this chapter, that has as its members only
individuals or professional business entities that are duly licensed or
otherwise legally authorized to render the same professional service as the
professional limited liability company or (ii) organized under this chapter for
the sole and specific purpose of rendering professional service of architects,
professional engineers, or land
surveyors, or landscape architects or
using the title of certified interior designers, or any combination thereof,
and at least two-thirds of whose membership interests are held by persons duly
licensed within the Commonwealth to perform the services of an architect,
professional engineer, or land
surveyor, or landscape architect, or by persons legally authorized within the Commonwealth
to use the title of certified interior designer; or (iii) organized under this
chapter for the sole and specific purpose of rendering the professional
services of one or more practitioners of the healing arts, licensed under the
provisions of Chapter 29 (§54.1-2900 et seq.) of Title 54.1, or one or more
nurse practitioners, licensed under Chapter 29 (§54.1-2900 et seq.) of Title
54.1, or one or more optometrists licensed under the provisions of Chapter 32
(§54.1-3200 et seq.) of Title 54.1, or one or more physical therapists and
physical therapist assistants licensed under the provisions of Chapter 34.1 (§
54.1-3473 et seq.) of Title 54.1, or one or more practitioners of the
behavioral science professions, licensed under the provisions of Chapter 35 (§
54.1-3500 et seq.), 36 (§54.1-3600 et seq.) or 37 (§54.1-3700 et seq.) of
Title 54.1, or one or more practitioners of audiology or speech pathology,
licensed under the provisions of Chapter 26 (§54.1-2600 et seq.) of Title
54.1, or one or more clinical nurse specialists who render mental health
services licensed under Chapter 30 (§54.1-3000 et seq.) of Title 54.1 and
registered with the Board of Nursing, or any combination of practitioners of
the healing arts, of optometry, physical therapy, the behavioral science
professions, and audiology or speech pathology and all of whose members are
individuals or professional business entities duly licensed or otherwise
legally authorized to perform the services of a practitioner of the healing
arts, nurse practitioners, optometry, physical therapy, the behavioral science
professions, audiology or speech pathology or of a clinical nurse specialist
who renders mental health services; however, nothing herein shall be construed
so as to allow any member of the healing arts, optometry, physical therapy, the
behavioral science professions, audiology or speech pathology or a nurse
practitioner or clinical nurse specialist to conduct that person's practice in
a manner contrary to the standards of ethics of that person's branch of the
healing arts, optometry, physical therapy, the behavioral science professions,
or audiology or speech pathology, or nursing as the case may be.
"Professional services" means any type of personal
service to the public that requires as a condition precedent to the rendering
of that service or the use of that title the obtaining of a license,
certification, or other legal authorization and shall be limited to the
personal services rendered by pharmacists, optometrists, physical therapists and
physical therapist assistants, practitioners of the healing arts, nurse
practitioners, practitioners of the behavioral science professions,
veterinarians, surgeons, dentists, architects, professional engineers, land
surveyors, landscape architects, certified
interior designers, public accountants, certified public accountants, attorneys
at law, insurance consultants, audiologists or speech pathologists and clinical
nurse specialists. For the purposes of this chapter, the following shall be
deemed to be rendering the same professional services:
1. Architects, professional engineers, and land surveyors; and
2. Practitioners of the healing arts, licensed under the provisions of Chapter 29 (§54.1-2900 et seq.) of Title 54.1, nurse practitioners, licensed under Chapter 29 (§54.1-2900 et seq.) of Title 54.1, optometrists, licensed under the provisions of Chapter 32 (§54.1-3200 et seq.) of Title 54.1, physical therapists, licensed under the provisions of Chapter 34.1 (§54.1-3473 et seq.) of Title 54.1, practitioners of the behavioral science professions, licensed under the provisions of Chapters 35 (§54.1-3500 et seq.), 36 (§54.1-3600 et seq.), and 37 (§54.1-3700 et seq.) of Title 54.1, and clinical nurse specialists who render mental health services licensed under Chapter 30 (§54.1-3000 et seq.) of Title 54.1 and registered with the Board of Nursing.
B. Persons who practice the healing art of performing professional clinical laboratory services within a hospital pathology laboratory shall be legally authorized to do so for purposes of this chapter if such persons (i) hold a doctorate degree in the biological sciences or a board certification in the clinical laboratory sciences and (ii) are tenured faculty members of an accredited medical school that is an "institution" as that term is defined in §23.1-1100.
C. Except as expressly otherwise provided, all terms defined in §13.1-1002 shall have the same meanings for purposes of this chapter.
§13.1-1103. Who may become a member.
One or more individuals or professional business entities (i)
duly licensed or otherwise legally authorized to render the same professional
services other than those of architects, professional engineers or land
surveyors, or to use a title other than those of certified landscape
architects or that of certified interior designers,
of which at least one is duly licensed or otherwise legally authorized to
render such professional services within the Commonwealth or (ii) complying
with the provisions of §13.1-1111 and duly licensed to render within the
Commonwealth the professional services of architects, professional engineers or
land surveyors, or legally authorized to use within the Commonwealth the title
of certified
landscape architects or certified interior designers, or any
combination thereof, may become members of a limited liability company for
pecuniary profit under the provisions of Chapter 12 (§13.1-1000 et seq.) of
this title, for the sole and specific purpose of rendering the same and
specific professional service, subject to any laws, not inconsistent with the
provisions of this chapter, which are applicable to the practice of that
profession in the limited liability company form.
§13.1-1106. Merger with foreign professional limited liability company or foreign professional corporation.
Any limited liability company organized under this chapter may
merge with one or more foreign professional limited liability companies that
have obtained a certificate of registration to transact business in the
Commonwealth pursuant to §13.1-1105, or one or more foreign professional
corporations that have obtained a certificate of authority to transact business
in the Commonwealth pursuant to §13.1-544.2, only if the professional limited
liability companies and the professional corporations are organized to render
the same professional services, provided that (i) the merger is permitted by
the laws of the jurisdiction under which each such foreign professional limited
liability company or foreign professional corporation is organized, (ii) if the
surviving or new professional business entity is a professional limited
liability company organized and operating under the laws of the Commonwealth,
all of its members and managers shall be licensed or otherwise legally
authorized to render the same professional service as the limited liability
company, provided that if such service is that of architects, professional
engineers, or land
surveyors
or certified landscape architects, or any
combination thereof, at least two-thirds of its membership interests shall be
held by individuals or professional business entities that are licensed or
otherwise legally authorized within the Commonwealth to render the applicable
service, and (iii) if the surviving or new professional business entity is a
professional corporation organized and operating under the laws of the
Commonwealth, all of its shareholders shall be licensed or otherwise legally
authorized to render the same professional service as the professional
corporation, provided that if such service is that of architects, professional
engineers, or land
surveyors
or certified landscape architects, or any combination thereof, at
least two-thirds of its shares shall be held by individuals who are licensed or
otherwise legally authorized within the Commonwealth to render the applicable
service.
§13.1-1111. Qualifications of members and managers; special provisions for limited liability companies rendering service of architects, professional engineers, and land surveyors, and using the title of certified interior designers.
Not less than two-thirds of the membership interests of a
professional limited liability company rendering the services of architects,
professional engineers, or land
surveyors, or landscape architects, or
using the title of certified interior designers, or any combination thereof,
shall be held by individuals duly licensed or professional business entities
legally authorized to render the services of architects, professional
engineers, or land surveyors, or landscape architects,
or by individuals or professional business entities legally authorized to use
the title of certified interior designers, and the remainder of the membership
interests may be held only by individuals who are employees of the professional
limited liability company whether or not those employees are licensed to render
professional services or authorized to use a title. For those professional
limited liability companies using the title of certified interior designers and
providing the services of architects, professional engineers or land surveyors,
or any combination thereof, not less than two-thirds of the membership interests
of the professional limited liability company shall be held by individuals who
are duly licensed. No other professional limited liability company, except for
a professional limited liability company engaged in the practice of accounting
as described in §13.1-1112, may have as a member anyone other than an
individual or a professional business entity that is duly licensed or otherwise
legally authorized to render the same professional services as those for which
the professional limited liability company was organized.
As an additional prerequisite for a professional limited
liability company's engaging in the practice of the professions of
architecture, professional engineering, or land
surveying, or landscape architecture, or using the title of certified interior designer, or
any combination thereof, that professional limited liability company shall
secure a certificate of authority, which may be renewable and may be either
general or limited, from the Board for Architects, Professional Engineers, Land
Surveyors, and Certified Interior
Designers and Landscape Architects. The
certificate of authority shall be issued or renewed by the Board when in its
discretion the professional limited liability company is in compliance with
rules and regulations which shall be promulgated by the Board consistent with
its jurisdiction to provide adequate safeguards for the public's health,
welfare and safety. The fees for a certificate of authority as described above
shall be the same fees as provided for in Chapter 4 (§54.1-400 et seq.) of
Title 54.1.
§15.2-851. Expedited land development review procedure.
A. A county may establish, by ordinance, a separate processing
procedure for the review of preliminary and final subdivision and site plans
and other development plans certified by licensed professional engineers,
architects, landscape architects and land
surveyors who are also licensed pursuant to §54.1-408 and recommended for
submission by persons who have received special training in such county's land
development ordinances and regulations. The purpose of such separate review
procedure is to provide a procedure to expedite the county's review of certain
qualified land development plans. If a separate procedure is established, the
county shall establish within the adopted ordinance the criteria for
qualification of persons and whose work is eligible to use the separate
procedure as well as a procedure for determining if the qualifications are met
by persons applying to use the separate procedure. Persons who satisfy the
criteria of subsection B below shall qualify as plans examiners. Plans reviewed
and recommended for submission by plans examiners and certified by the
appropriately licensed professional engineer, architect, landscape
architect or land surveyor shall qualify for the separate
processing procedure.
B. The qualifications of those persons who may participate in this program shall include, but not be limited to, the following:
1. A bachelor of science degree in engineering, architecture, landscape architecture
or related science or equivalent experience or a land surveyor certified
pursuant to §54.1-408.
2. Successful completion of an educational program specified by the county.
3. A minimum of two years of land development engineering design experience acceptable to the county.
4. Attendance at continuing educational courses specified by the county.
5. Consistent preparation and submission of plans which meet all applicable ordinances and regulations.
C. If an expedited review procedure is adopted by the board of supervisors pursuant to this section, the board of supervisors shall establish an advisory plans examiner board which shall make recommendations to the board of supervisors on the general operation of the program, on the general qualifications of those who may participate in the expedited processing procedure, on initial and continuing educational programs needed to qualify and maintain qualification for such a program, and on the general administration and operation of such a program. In addition, the plans examiner board shall submit recommendations to the board of supervisors as to those persons who meet the established qualifications for participation in the program and as to whether those persons who have previously qualified to participate in the program should be disqualified, suspended or otherwise disciplined. The plans examiner board shall consist of six members who shall be appointed by the board of supervisors for staggered four-year terms. Initial terms may be less than four years so as to provide for staggered terms. The plans examiner board shall consist of three persons in private practice as licensed professional engineers or land surveyors certified pursuant to §54.1-408, at least one of whom shall be a certified land surveyor; one person employed by the county government; one person employed by the Virginia Department of Transportation who shall serve as a nonvoting advisory member; and one citizen member. All plans examiner board members who serve as licensed engineers or as certified surveyors must maintain their professional license or certification as a condition of holding office, and all such persons shall have at least two years of experience in land development procedures of the county. The citizen member shall meet the qualifications provided in §54.1-107. However, such member, notwithstanding the proscription of provision (i) of §54.1-107, shall have training as an engineer or surveyor and may be currently licensed, certified or practicing his profession.
D. The expedited land development program shall include an educational program conducted under the auspices of a public institution of higher education. The instructors in the educational program shall consist of persons in the private and public sectors who are qualified to prepare land development plans. The educational program shall include the comprehensive and detailed study of county ordinances and regulations relating to plans and how they are applied.
E. The separate processing system may include a review of selected or random aspects of plans rather than a detailed review of all aspects. However, it shall also include periodic detailed review of plans prepared by persons who qualify for the system.
F. In no event shall this section relieve persons who prepare and submit plans of the responsibilities and obligations which they would otherwise have with regard to the preparation of plans, nor shall it relieve the county of its obligation to review other plans in the time periods and manner prescribed by law.
§13.1-1115. Transfer of membership interests.
A. No member of a professional limited liability company
organized under this chapter may sell, assign in whole or in part, or otherwise
transfer that member's membership interest in the professional limited
liability company except to (i) the professional limited liability company,
(ii) another individual or professional business entity that is eligible to be
a member of that professional limited liability company, or (iii) a qualified
charitable remainder trust as described in subsection B. In the case of a
professional limited liability company rendering the services of architects,
professional engineers, and land surveyors and certified landscape
architects, or any combination thereof, no person or professional
business entity which is not duly licensed or otherwise legally authorized to
render one of those services will be eligible unless at least two-thirds of the
remaining membership interests after the sale or transfer are held by persons
or professional business entities duly licensed or otherwise legally authorized
to perform one of those services.
B. As used in this section, "qualified charitable remainder trust" means a trust meeting the requirements of §664 of the United States Internal Revenue Code of 1986, as amended, and which meets all of the following conditions:
1. Has one or more current income beneficiaries, all of which are eligible to be members in the professional limited liability company under §13.1-1103.
2. Has a trustee or independent special trustee who:
a. Is eligible to have a membership interest in the professional limited liability company under §13.1-1103; and
b. Has exclusive authority over the membership interests while such interests are held in the trust.
3. Has one or more irrevocably designated charitable remaindermen, all of which must at all times be domiciled or maintain a local chapter in the Commonwealth of Virginia.
4. When transferring any assets during the term of the trust to charitable organizations, the distributions are made only to charitable organizations described in §170(c) of the Internal Revenue Code that are domiciled or maintain a local chapter in this Commonwealth.
§15.2-2263. Expedited land development review procedure.
A. The Counties of Hanover, Loudoun, Montgomery, Prince
William, and Roanoke, and the Town of Leesburg, may establish, by ordinance, a
separate processing procedure for the review of preliminary and final
subdivision and site plans and other development plans certified by licensed
professional engineers, licensed architects, and licensed
land surveyors, and landscape architects who
are also licensed pursuant to §54.1-408 and recommended for submission by
persons who have received special training in the locality's land development
ordinances and regulations. The purpose of the separate review procedure is to
provide a procedure to expedite the locality's review of certain qualified land
development plans. If a separate procedure is established, the locality shall
establish within the adopted ordinance the criteria for qualification of
persons and whose work is eligible to use the separate procedure as well as a
procedure for determining if the qualifications are met by persons applying to
use the separate procedure. Persons who satisfy the criteria of subsection B
below shall qualify as plans examiners. Plans reviewed and recommended for
submission by plans examiners and certified by the appropriately licensed
professional engineer, licensed architect, or licensed
land surveyor, or landscape architect shall
qualify for the separate processing procedure.
B. The qualifications of those persons who may participate in this program shall include, but not be limited to, the following:
1. A bachelor of science degree in engineering, architecture, landscape architecture
or related science or equivalent experience or a licensed land surveyor
pursuant to §54.1-408.
2. Successful completion of an educational program specified by the locality.
3. A minimum of two years of land development engineering design experience acceptable to the locality.
4. Attendance at continuing educational courses specified by the locality.
5. Consistent preparation and submission of plans which meet all applicable ordinances and regulations.
C. If an expedited review procedure is adopted by the board of supervisors or town council pursuant to the authority granted by this section, the board of supervisors or town council shall establish an advisory plans examiner board, which shall make recommendations to the board of supervisors or town council on the general operation of the program, on the general qualifications of those who may participate in the expedited processing procedure, on initial and continuing educational programs needed to qualify and maintain qualification for such a program and on the general administration and operation of the program. In addition, the plans examiner board shall submit recommendations to the board of supervisors or town council as to those persons who meet the established qualifications for participation in the program, and the plans examiner board shall submit recommendations as to whether those persons who have previously qualified to participate in the program should be disqualified, suspended or otherwise disciplined. The plans examiner board shall consist of six members who shall be appointed by the board of supervisors or town council for staggered four-year terms. Initial terms may be less than four years so as to provide for staggered terms. The plans examiner board shall consist of three persons in private practice as licensed professional engineers or licensed land surveyors pursuant to §54.1-408, at least one of whom shall be a licensed land surveyor; one person employed by the government of the locality; one person employed by the Virginia Department of Transportation who shall serve as a nonvoting advisory member; and one citizen member. All members of the board who serve as licensed engineers or as licensed surveyors must maintain their professional license as a condition of holding office and shall have at least two years of experience in land development procedures of the locality. The citizen member of the board shall meet the qualifications provided in §54.1-107 and, notwithstanding the proscription of clause (i) of § 54.1-107, shall have training as an engineer or surveyor and may be currently licensed or practicing his profession.
D. The expedited land development program shall include an educational program conducted under the auspices of a public institution of higher education. The instructors in the educational program shall consist of persons in the private and public sectors who are qualified to prepare land development plans. The educational program shall include the comprehensive and detailed study of local ordinances and regulations relating to plans and how they are applied.
E. The separate processing system may include a review of selected or random aspects of plans rather than a detailed review of all aspects; however, it shall also include a periodic detailed review of plans prepared by persons who qualify for the system.
F. In no event shall this section relieve persons who prepare and submit plans of the responsibilities and obligations that they would otherwise have with regard to the preparation of plans, nor shall it relieve the locality of its obligation to review other plans in the time periods and manner prescribed by law.
§54.1-300. Definitions.
As used in this chapter unless the context requires a different meaning:
"Board" means the Board for Professional and Occupational Regulation.
"Certification" means the process whereby the Department or any regulatory board issues a certificate on behalf of the Commonwealth to a person certifying that he possesses the character and minimum skills to engage properly in his profession or occupation.
"Department" means the Department of Professional and Occupational Regulation.
"Director" means the Director of the Department of Professional and Occupational Regulation.
"Inspection" means a method of regulation whereby a state agency periodically examines the activities and premises of practitioners of an occupation or profession to ascertain if the practitioner is carrying out his profession or occupation in a manner consistent with the public health, safety and welfare.
"Licensure" means a method of regulation whereby the Commonwealth, through the issuance of a license, authorizes a person possessing the character and minimum skills to engage in the practice of a profession or occupation that is unlawful to practice without a license.
"Registration" means a method of regulation whereby any practitioner of a profession or occupation may be required to submit information concerning the location, nature and operation of his practice.
"Regulatory board" means the Auctioneers Board,
Board for Architects, Professional Engineers, Land Surveyors, and Certified
Interior Designers and Landscape Architects, Board for
Barbers and Cosmetology, Board for Branch Pilots, Board for Contractors, Board
for Hearing Aid Specialists and Opticians, Board for Professional Soil Scientists,
Wetland Professionals, and Geologists, Board for Waste Management Facility
Operators, Board for Waterworks and Wastewater Works Operators and Onsite
Sewage System Professionals, Cemetery Board, Real Estate Appraiser Board, Real
Estate Board, Fair Housing Board, Virginia Board for Asbestos, Lead, and Home
Inspectors, and Common Interest Community Board.
ARCHITECTS, ENGINEERS, LAND SURVEYORS,
§54.1-400. Definitions.
As used in this chapter unless the context requires a different meaning:
"Architect" means a person who, by reason of his knowledge of the mathematical and physical sciences, and the principles of architecture and architectural design, acquired by professional education, practical experience, or both, is qualified to engage in the practice of architecture and whose competence has been attested by the Board through licensure as an architect.
The "practice of architecture" means any service wherein the principles and methods of architecture are applied, such as consultation, investigation, evaluation, planning and design, and includes the responsible administration of construction contracts, in connection with any private or public buildings, structures or projects, or the related equipment or accessories.
"Board" means the Board for Architects, Professional
Engineers, Land Surveyors, and Certified
Interior Designers and
Landscape Architects.
"Certified interior designer" means a design professional who meets the criteria of education, experience, and testing in the rendering of interior design services established by the Board through certification as an interior designer.
"Improvements to real property" means any valuable addition or amelioration made to land and generally whatever is erected on or affixed to land which is intended to enhance its value, beauty or utility, or adapt it to new or further purposes. Examples of improvements to real property include, but are not limited to, structures, buildings, machinery, equipment, electrical systems, mechanical systems, roads, and water and wastewater treatment and distribution systems.
"Interior design" by a certified interior designer means any service rendered wherein the principles and methodology of interior design are applied in connection with the identification, research, and creative solution of problems pertaining to the function and quality of the interior environment. Such services relative to interior spaces shall include the preparation of documents for nonload-bearing interior construction, furnishings, fixtures, and equipment in order to enhance and protect the health, safety, and welfare of the public.
"Land surveyor" means a person who, by reason of his knowledge of the several sciences and of the principles of land surveying, and of the planning and design of land developments acquired by practical experience and formal education, is qualified to engage in the practice of land surveying, and whose competence has been attested by the Board through licensure as a land surveyor.
The "practice of land surveying" includes surveying of areas for a determination or correction, a description, the establishment or reestablishment of internal and external land boundaries, or the determination of topography, contours or location of physical improvements, and also includes the planning of land and subdivisions thereof. The term "planning of land and subdivisions thereof" shall include, but not be limited to, the preparation of incidental plans and profiles for roads, streets and sidewalks, grading, drainage on the surface, culverts and erosion control measures, with reference to existing state or local standards.
"Landscape architect" means a person who,
by reason of his special knowledge of natural, physical and mathematical
sciences, and the principles and methodology of landscape architecture and
landscape architectural design acquired by professional education, practical
experience, or both, is qualified to engage in the practice of landscape
architecture and whose competence has been attested by the Board through
licensure as a landscape architect.
The "practice of landscape architecture"
by a licensed landscape architect means any service wherein the principles and
methodology of landscape architecture are applied in consultation, evaluation,
planning (including the preparation and filing of sketches, drawings, plans and
specifications) and responsible supervision or administration of contracts
relative to projects principally directed at the functional and aesthetic use
of land.
"Professional engineer" means a person who is qualified to practice engineering by reason of his special knowledge and use of mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design acquired by engineering education and experience, and whose competence has been attested by the Board through licensure as a professional engineer.
The "practice of engineering" means any service wherein the principles and methods of engineering are applied to, but are not necessarily limited to, the following areas: consultation, investigation, evaluation, planning and design of public or private utilities, structures, machines, equipment, processes, transportation systems and work systems, including responsible administration of construction contracts. The term "practice of engineering" shall not include the service or maintenance of existing electrical or mechanical systems.
"Residential wastewater" means sewage (i) generated by residential or accessory uses, not containing storm water or industrial influent, and having no other toxic, or hazardous constituents not routinely found in residential wastewater flows, or (ii) as certified by a professional engineer.
"Responsible charge" means the direct control and
supervision of the practice of architecture, professional engineering, landscape architecture, or land
surveying.
§54.1-401. Exemptions.
The following shall be exempted from the provisions of this chapter:
1. Practice of professional engineering and land surveying by a licensed architect when such practice is incidental to what may be properly considered an architectural undertaking.
2. Practice of architecture and land surveying by a licensed professional engineer when such practice is incidental to an engineering project.
3. Practice as a professional engineer, or architect or landscape architect in this
Commonwealth by any person not a resident of and having no established place of
business in this Commonwealth, or by any person resident in this Commonwealth
whose arrival is recent, provided that such person is otherwise qualified for
such professional service in another state or country and qualifies in Virginia
and files prior to commencement of such practice an application, with the
required fee, for licensure as a professional engineer, or architect or landscape architect. The
exemption shall continue until the Board has had sufficient time to consider
the application and grant or deny licensure or certification.
4. Engaging in the practice of professional engineering as an
employee under a licensed professional engineer, engaging in the practice of architecture
as an employee under a licensed architect, engaging in
the practice of landscape architecture as an employee under a licensed
landscape architect, or engaging in the practice of land
surveying as an employee under a licensed land surveyor; provided, that such
practice shall not include responsible charge of design or supervision.
5. Practice of professional engineering, architecture, landscape architecture, or land
surveying solely as an employee of the United States. However, the employee
shall not be exempt from other provisions of this chapter if he furnishes
advisory service for compensation to the public in connection with engineering,
architectural, landscape architecture, or land
surveying matters.
6. Practice of architecture or professional engineering by an individual, firm or corporation on property owned or leased by such individual, firm or corporation, unless the public health or safety is involved.
7. Practice of engineering solely as an employee of a corporation engaged in interstate commerce, or as an employee of a public service corporation, by rendering such corporation engineering service in connection with its facilities which are subject to regulation by the State Corporation Commission; provided, that corporation employees who furnish advisory service to the public in connection with engineering matters other than in connection with such employment shall not be exempt from the provisions of this chapter.
§54.1-402.2. Cease and desist orders for unlicensed activity; civil penalty.
A. Notwithstanding §54.1-111, the Board may issue an order
requiring any person to cease and desist from (i) practicing or offering to
practice as an architect, professional engineer, or land
surveyor, or landscape architect when
such person is not licensed or registered by the Board in accordance with this
chapter or (ii) holding himself out as a certified interior designer when such
person is not certified or registered by the Board in accordance with this
chapter. The order shall be effective upon its entry and shall become final
unless such person files an appeal with the Board in accordance with the
Administrative Process Act (§2.2-4000 et seq.) within 21 days of the date of
entry of the order.
B. If the person fails to cease and desist the unlicensed, uncertified, or unregistered activity after entry of an order in accordance with subsection A, the Board may refer the matter for enforcement pursuant to § 54.1-306.
C. Any person engaging in unlicensed, uncertified, or unregistered activity shall be subject to further proceedings before the Board and the Board may impose a civil penalty not to exceed $2,500. Any penalties collected under this section shall be paid to the Literary Fund after deduction of the administrative costs of the Board in furtherance of this section.
D. Nothing contained in this section shall apply to any person engaged in activity exempted from the provisions of this chapter.
§54.1-403. Board members and officers; quorum.
The Board for Architects, Professional Engineers, Land Surveyors, and
Certified Interior Designers and Landscape Architects
shall be composed of 15 13 members as follows: three
architects, three professional engineers, three land surveyors, two landscape architects,
two certified interior designers, and two nonlegislative citizen members.
Except for the nonlegislative citizen members appointed in accordance with §54.1-107, Board members shall have actively practiced or taught their professions for at least 10 years prior to their appointments. The terms of Board members shall be four years.
The Board shall elect a president and vice-president from its membership.
Nine Eight Board
members, consisting of two engineers, two architects, two land surveyors, one landscape architect, one
interior designer, and
one nonlegislative citizen member, shall constitute a quorum.
§54.1-404.2. Continuing education.
A. The Board shall promulgate regulations governing continuing
education requirements for architects, professional engineers, and land surveyors, and landscape architects
licensed by the Board. Such regulations shall require the completion of the
equivalent of 16 hours per biennium of Board-approved continuing education
activities as a prerequisite to the renewal or reinstatement of a license
issued to an architect, professional engineer, or land
surveyor, or landscape architect. The
Board shall establish criteria for continuing education activities including,
but not limited to (i) content and subject matter; (ii) curriculum; (iii) standards
and procedures for the approval of activities, courses, sponsors, and
instructors; (iv) methods of instruction for continuing education courses; and
(v) the computation of course credit.
B. The Board may grant exemptions or waive or reduce the number of continuing education hours required in cases of certified illness or undue hardship.
§54.1-405. Examinations and issuance of licenses and certificates.
A. The Board shall hold at least one examination each year at
times and locations designated by the Board. A license to practice as a
professional engineer, an architect, or a land
surveyor, or a landscape architect
shall be issued to every applicant who complies with the requirements of this
chapter and the regulations of the Board. A license shall be valid during the
life of the holder unless revoked or suspended by the Board. A license holder
must register with the Board to practice in the Commonwealth. The licenses
shall be signed by at least four members of the Board.
B. Notwithstanding the provisions of §54.1-111, a license
holder who has retired from practice may use the designation granted by such
license, followed by the word "emeritus," without possessing a
current registration from the Board provided (i) the license has not been
revoked or suspended by the Board and (ii) the license holder does not practice
or offer to practice architecture, engineering, or land
surveying, or landscape architecture.
§54.1-410. Other building laws not affected; duties of public officials.
A. Nothing contained in this chapter or in the regulations of the Board shall be construed to limit the authority of any public official authorized by law to approve plans, specifications or calculations in connection with improvements to real property. This shall include, but shall not be limited to, the authority of officials of local building departments as defined in §36-97, to require pursuant to the Uniform Statewide Building Code, state statutes, local ordinances, or code requirements that such work be prepared by a person licensed or certified pursuant to this chapter.
B. Any public body authorized by law to require that plans,
specifications or calculations be prepared in connection with improvements to
real property shall establish a procedure to ensure that such plans,
specifications or calculations be prepared by an architect, professional
engineer, or land surveyor or landscape architect licensed
or authorized pursuant to this chapter in any case in which the exemptions
contained in §§54.1-401, 54.1-402 or §54.1-402.1 are not applicable.
Drafting of permits, reviewing of plans or inspection of
facilities for compliance with an adopted code or standard by any public body
or its designated agent shall not require the services of an architect,
professional engineer, or land
surveyor or landscape architect licensed
pursuant to this chapter.
§54.1-411. Organization for practice; registration.
A. Nothing contained in this chapter or in the regulations of
the Board shall prohibit the practice of architecture, engineering, land
surveying, landscape architecture or the
offering of the title of certified interior designer by any corporation,
partnership, sole proprietorship, limited liability company, or other entity
provided such practice or certification is rendered through its officers,
principals or employees who are correspondingly licensed or certified. No
individual practicing architecture, engineering, land surveying, landscape architecture, or
offering the title of certified interior designer under the provisions of this
section shall be relieved of responsibility that may exist for services
performed by reason of his employment or other relationship with such entity.
No such corporation, partnership, sole proprietorship, limited liability
company, or other entity, or any affiliate thereof, shall, on its behalf or on
behalf of any such licensee or certificate holder, nor any licensee or
certificate holder, be prohibited from (i) purchasing or maintaining insurance
against any such liability; (ii) entering into any indemnification agreement
with respect to any such liability; (iii) receiving indemnification as a result
of any such liability; or (iv) limiting liability through contract.
B. Except for professional corporations holding a certificate of
authority issued in accordance with §13.1-549, professional limited liability
companies holding a certificate of authority issued in accordance with §
13.1-1111, and sole proprietorships that do not employ other individuals for
which licensing is required, any person, corporation, partnership, limited
liability company, or other entity offering or rendering the practice of
architecture, engineering, land surveying, landscape
architecture or offering the title of certified interior
designer shall register with the Board. As a condition of registration, the
entity shall name at least one licensed architect, professional engineer, land
surveyor, landscape architect or
certified interior designer for such profession offered or rendered. The person
or persons named shall be responsible and have control of the regulated
services rendered by the entity.
C. The Board shall adopt regulations governing the registration of persons, corporations, partnerships, limited liability companies, sole proprietors and other entities as required in subsections A and B which:
1. Provide for procedural requirements to obtain and renew registration on a periodic basis;
2. Establish fees for the application and renewal of registration sufficient to cover costs;
3. Assure that regulated services are rendered and controlled by persons authorized to do so; and
4. Ensure that conflicts of interests are disclosed.
§54.1-2200. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Board" means the Board for Professional
Soil Scientists, Wetland Professionals,
and Geologists.
"Department" means the Department of Professional and Occupational Regulation.
"Eligible soil scientist" means a person
who possesses the qualifications specified in this chapter to become licensed.
"Eligible wetland professional" means a person who possesses the qualifications specified in this chapter to become certified.
"Geologist" means a person engaged in the public practice of geology.
"Geology" means the science dealing with (i) the earth and its history in general; (ii) the investigation, prediction, evaluation, and location of materials and structures which compose the earth; (iii) the natural processes that cause changes in the earth; and (iv) the application of knowledge of the earth, its processes, and its constituent rocks, minerals, liquids, gases, and other natural materials.
"Practice of geology" means the performance of any service or work for the general public wherein the principles and methods of geology are applied.
"Practice of soil evaluation" means the
evaluation of soil by accepted principles and methods including, but not
limited to, observation, investigation, and consultation on measured, observed
and inferred soils and their properties; analysis of the effects of these
properties on the use and management of various kinds of soil; and preparation
of soil descriptions, maps, reports and interpretive drawings.
"Practice of wetland delineation" means the delineation of wetlands by accepted principles and methods including, but not limited to, observation, investigation, and consultation on soil, vegetation, and hydrologic parameters; and preparation of wetland delineations, descriptions, reports and interpretive drawings.
"Qualified geologist" means an uncertified person who possesses all the qualifications specified in this chapter for certification.
"Soil"
means the groups of natural bodies occupying the unconsolidated portion of the
earth's surface which are capable of supporting plant life and have properties
caused by the combined effects, as modified by topography and time, of climate
and living organisms upon parent materials.
"Soil evaluation" means plotting soil
boundaries, describing and evaluating the kinds of soil and predicting their
suitability for and response to various uses.
"Soil science" means the science dealing
with the physical, chemical, mineralogical, and biological properties of soils
as natural bodies.
"Soil scientist" means a person having
special knowledge of soil science and the methods and principles of soil
evaluation as acquired by education and experience in the formation,
description and mapping of soils.
"Virginia certified professional geologist" means a person who possesses all qualifications specified in this chapter for certification and whose competence has been attested by the Board through certification.
"Virginia certified professional wetland delineator" means a person who possesses the qualifications required for certification by the provisions of this chapter and the regulations of the Board and who is granted certification by the Board.
"Virginia licensed professional soil
scientist" means a person who possesses the qualifications required for
licensure by the provisions of this chapter and the regulations of the Board
and who has been granted a license by the Board.
"Wetland delineation" means delineating wetland limits in accordance with prevailing state and federal regulatory guidance and describing wetland types.
"Wetland professional" means a person having special knowledge of wetland science and the methods and principles of wetland delineation as acquired by education and experience in the formation, description and mapping of wetlands.
"Wetland science" means the science dealing with the physical, chemical, and biological properties of wetland systems integrated through ecological and morphological relationships.
"Wetlands" means the same as that term is defined in §§28.2-1300 and 62.1-44.3.
§54.1-2200.2. Board for Wetland Professionals and Geologists; membership; quorum.
A. Notwithstanding the provisions of §54.1-200, the Board for
Professional Soil Scientists, Wetland
Professionals, and Geologists shall be
composed of 13 10
members as follows: three licensed professional soil
scientists, three certified professional
wetland delineators, three geologists, and three citizen members. The State
Geologist shall serve as an ex officio member of the Board. The geologist
members shall be of varied backgrounds. The professional soil scientist
members shall have experience in at least one of the following areas: (i) soil
mapping and classification, (ii) soil suitability and land use, (iii) teaching
and research in soil science, and (iv) environmental protection regulations. Of
the wetland professional members, one shall have experience in wetland
delineation and description, one shall have experience in teaching and research
in wetland science, and one shall have experience with natural resource
regulations. Terms of the members shall be for four years.
B. The Board shall annually elect a chairman from its
membership. Seven Five board
members, consisting of at least two soil scientists, two
professional wetland delineators, two geologists, and one citizen member, shall constitute a quorum.
C. The Governor may select the
professional soil scientist members from a list of at least three names for
each vacancy submitted by the Virginia Association of Professional Soil
Scientists. The Governor may notify the Virginia Association of Professional
Soil Scientists of any professional vacancy other than by expiration among the
professional soil scientist members of the Board and nominations may be made
for the filling of the vacancy.
D. The Governor may select the
wetland professionals from a list of at least three names for each vacancy
submitted by the Virginia Association of Wetland Professionals. The Governor
may notify and request nominations from the Virginia Association of Wetland
Professionals of any professional vacancy other than by expiration among the
wetland professional members.
§54.1-2201. Exceptions.
A. The certification program for wetland delineation set forth in this chapter shall be voluntary and shall not be construed to prohibit:
1. The practice of wetland delineation by individuals who are not certified professional wetland delineators as defined in this chapter;
2. The work of an employee or a subordinate of a certified professional wetland delineator or of an individual who is practicing wetland delineation without being certified;
3. The work of any professional engineer, landscape
architect, or land surveyor as
defined by §54.1-400 in rendering any of the services that constitute the
practice of wetland delineation or the practice of soil evaluation; or
4. The practice of any profession or occupation that is regulated by another regulatory board within the Department.
B. The licensing program for
professional soil scientists shall not be construed to prohibit:
1. The work of an employee or a subordinate of a
licensed soil scientist;
2. The work of any professional engineer, landscape
architect, or land surveyor as defined in §54.1-400 in rendering any services
that constitute the practice of soil evaluation; or
3. The practice of any profession or occupation
that is regulated by another regulatory board within the Department.
C. Nothing in this chapter
shall authorize an individual to engage in the practice of engineering, or the
practice of land surveying or the practice of landscape
architecture, unless such individual is
licensed or certified pursuant to Chapter 4 (§54.1-400 et seq.).
§54.1-2206. Waiver of examination.
A. The Board may waive the requirement for
examination pursuant to §54.1-2205 upon written application from an individual
who holds an unexpired certificate or license, or its equivalent, issued by a
regulatory body of another state, territory or possession of the United States
and is not the subject of any disciplinary proceeding before such regulatory
body which could result in the suspension or revocation of his certificate or
license, if such other state, territory or possession recognizes the license issued
by the Board.
B. The Board shall waive the
requirement for examination pursuant to §54.1-2206.2 upon the written
application from an individual who holds an unexpired certificate or its
equivalent issued by a regulatory body of another state, territory or
possession of the United States or has been provisionally certified under the
U.S. Army Corps of Engineers Wetland Delineator Certification Program of 1993
and is not the subject of any disciplinary proceeding before such regulatory
body, which could result in the suspension or revocation of his certificate.
§54.1-2207. Unprofessional conduct.
Any professional soil scientist who is licensed or any wetland
delineator who is certified, as provided in this chapter, shall be considered
guilty of unprofessional conduct and subject to disciplinary action by the
Board, if he:
1. Obtains his certification or license through
fraud or deceit;
2. Violates or cooperates with others in violating any provision of this chapter, the Code of Professional Ethics and Conduct or any regulation of the Board;
3. Performs any act likely to deceive, defraud or harm the public;
4. Demonstrates gross negligence, incompetence or misconduct
in the practice of soil evaluation or wetland
delineation; or
5. Is convicted of a felony.
§54.1-2208. Unlawful representation as a certified wetland delineator; penalty.
A. No person shall represent himself as a licensed
professional soil scientist unless he has been so licensed by the Board. Any
person practicing or offering to practice soil evaluation within the meaning of
this chapter who, through verbal claim, sign, advertisement, or letterhead,
represents himself as a licensed professional soil scientist without holding a
license from the Board shall be guilty of a Class 1 misdemeanor.
B. No person shall represent
himself as a certified professional wetland delineator unless he has been so
certified by the Board. Any person practicing or offering to practice wetland delineation
within the meaning of this chapter who, through verbal claim, sign,
advertisement, or letterhead, represents himself as a certified professional
wetland delineator without holding such a certificate from the Board shall be is
guilty of a Class 1 misdemeanor.
§62.1-44.15:51. (For contingent expiration date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Definitions.
As used in this article, unless the context requires a different meaning:
"Agreement in lieu of a plan" means a contract between the plan-approving authority and the owner that specifies conservation measures that must be implemented in the construction of a single-family residence; this contract may be executed by the plan-approving authority in lieu of a formal site plan.
"Applicant" means any person submitting an erosion and sediment control plan for approval or requesting the issuance of a permit, when required, authorizing land-disturbing activities to commence.
"Certified inspector" means an employee or agent of a VESCP authority who (i) holds a certificate of competence from the Board in the area of project inspection or (ii) is enrolled in the Board's training program for project inspection and successfully completes such program within one year after enrollment.
"Certified plan reviewer" means an employee or agent
of a VESCP authority who (i) holds a certificate of competence from the Board
in the area of plan review, (ii) is enrolled in the Board's training program
for plan review and successfully completes such program within one year after
enrollment, or (iii) is licensed as a professional engineer, architect,
landscape architect, or land surveyor pursuant to Article 1
(§54.1-400 et seq.) of Chapter 4 of Title 54.1, or professional soil
scientist as defined in §54.1-2200.
"Certified program administrator" means an employee or agent of a VESCP authority who (i) holds a certificate of competence from the Board in the area of program administration or (ii) is enrolled in the Board's training program for program administration and successfully completes such program within one year after enrollment.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"District" or "soil and water conservation district" means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§10.1-506 et seq.) of Chapter 5 of Title 10.1.
"Erosion and sediment control plan" or "plan" means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.
"Erosion impact area" means an area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.
"Land-disturbing activity" means any man-made change to the land surface that may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the Commonwealth, including, but not limited to, clearing, grading, excavating, transporting, and filling of land, except that the term shall not include:
1. Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, and maintenance work;
2. Individual service connections;
3. Installation, maintenance, or repair of any underground public utility lines when such activity occurs on an existing hard surfaced road, street, or sidewalk, provided the land-disturbing activity is confined to the area of the road, street, or sidewalk that is hard surfaced;
4. Septic tank lines or drainage fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
5. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.1;
6. Tilling, planting, or harvesting of agricultural, horticultural, or forest crops, livestock feedlot operations, or as additionally set forth by the Board in regulation, including engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§10.1-1100 et seq.) of Title 10.1 or is converted to bona fide agricultural or improved pasture use as described in subsection B of §10.1-1163;
7. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company;
8. Agricultural engineering operations, including but not limited to the construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the provisions of the Dam Safety Act (§10.1-604 et seq.), ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation;
9. Disturbed land areas of less than 10,000 square feet in size or 2,500 square feet in all areas of the jurisdictions designated as subject to the Chesapeake Bay Preservation Area Designation and Management Regulations; however, the governing body of the program authority may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
10. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
11. Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this article and the regulations adopted pursuant thereto; and
12. Emergency work to protect life, limb, or property, and emergency repairs; however, if the land-disturbing activity would have required an approved erosion and sediment control plan, if the activity were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the requirements of the VESCP authority.
"Natural channel design concepts" means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.
"Owner" means the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.
"Peak flow rate" means the maximum instantaneous flow from a given storm condition at a particular location.
"Permittee" means the person to whom the local permit authorizing land-disturbing activities is issued or the person who certifies that the approved erosion and sediment control plan will be followed.
"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity.
"Runoff volume" means the volume of water that runs off the land development project from a prescribed storm event.
"Town" means an incorporated town.
"Virginia Erosion and Sediment Control Program" or "VESCP" means a program approved by the Board that has been established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources and shall include such items where applicable as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, enforcement where authorized in this article, and evaluation consistent with the requirements of this article and its associated regulations.
"Virginia Erosion and Sediment Control Program authority" or "VESCP authority" means an authority approved by the Board to operate a Virginia Erosion and Sediment Control Program. An authority may include a state entity, including the Department; a federal entity; a district, county, city, or town; or for linear projects subject to annual standards and specifications, electric, natural gas, and telephone utility companies, interstate and intrastate natural gas pipeline companies, railroad companies, or authorities created pursuant to §15.2-5102.
"Water quality volume" means the volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project.
§62.1-44.15:51. (For contingent effective date, see Acts 2016, cc. 68 and 758, as amended by Acts 2017, c. 345) Definitions.
As used in this article, unless the context requires a different meaning:
"Agreement in lieu of a plan" means a contract between the VESCP authority and the owner that specifies conservation measures that must be implemented in the construction of a single-family detached residential structure; this contract may be executed by the VESCP authority in lieu of a formal site plan.
"Applicant" means any person submitting an erosion and sediment control plan for approval in order to obtain authorization for land-disturbing activities to commence.
"Certified inspector" means an employee or agent of a VESCP authority who (i) holds a certification from the Board in the area of project inspection or (ii) is enrolled in the Board's training program for project inspection and successfully completes such program within one year after enrollment.
"Certified plan reviewer" means an employee or agent
of a VESCP authority who (i) holds a certification from the Board in the area
of plan review, (ii) is enrolled in the Board's training program for plan
review and successfully completes such program within one year after
enrollment, or (iii) is licensed as a professional engineer, architect,
landscape architect, or land surveyor pursuant to Article 1
(§54.1-400 et seq.) of Chapter 4 of Title 54.1, or professional soil
scientist as defined in §54.1-2200.
"Certified program administrator" means an employee or agent of a VESCP authority who (i) holds a certification from the Board in the area of program administration or (ii) is enrolled in the Board's training program for program administration and successfully completes such program within one year after enrollment.
"Department" means the Department of Environmental Quality.
"Director" means the Director of the Department of Environmental Quality.
"District" or "soil and water conservation district" means a political subdivision of the Commonwealth organized in accordance with the provisions of Article 3 (§10.1-506 et seq.) of Chapter 5 of Title 10.1.
"Erosion and sediment control plan" or "plan" means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.
"Erosion impact area" means an area of land that is not associated with a current land-disturbing activity but is subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.
"Land disturbance" or "land-disturbing activity" means any man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including the clearing, grading, excavating, transporting, and filling of land.
"Natural channel design concepts" means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.
"Owner" means the same as provided in §62.1-44.3. For a land-disturbing activity that is regulated under this article, "owner" also includes the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.
"Peak flow rate" means the maximum instantaneous flow from a given storm condition at a particular location.
"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity.
"Runoff volume" means the volume of water that runs off the land development project from a prescribed storm event.
"Soil erosion" means the movement of soil by wind or water into state waters or onto lands in the Commonwealth.
"Town" means an incorporated town.
"Virginia Erosion and Sediment Control Program" or "VESCP" means a program approved by the Board that has been established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources and shall include such items where applicable as local ordinances, rules, policies and guidelines, technical materials, and requirements for plan review, inspection, and evaluation consistent with the requirements of this article.
"Virginia Erosion and Sediment Control Program authority" or "VESCP authority" means a locality approved by the Board to operate a Virginia Erosion and Sediment Control Program. A locality that has chosen not to establish a Virginia Erosion and Stormwater Management Program pursuant to subdivision B 3 of §62.1-44.15:27 is required to become a VESCP authority in accordance with this article.
"Virginia Stormwater Management Program" or "VSMP" means a program established by the Board pursuant to §62.1-44.15:27.1 on behalf of a locality on or after July 1, 2014, to manage the quality and quantity of runoff resulting from any land-disturbing activity that (i) disturbs one acre or more of land or (ii) disturbs less than one acre of land and is part of a larger common plan of development or sale that results in one acre or greater of land disturbance.
§62.1-44.15:53. Certification of program personnel.
A. The minimum standards of VESCP effectiveness established by the Board pursuant to subsection C of §62.1-44.15:52 shall provide that (i) an erosion and sediment control plan shall not be approved until it is reviewed by a certified plan reviewer; (ii) inspections of land-disturbing activities shall be conducted by a certified inspector; and (iii) a VESCP shall contain a certified program administrator, a certified plan reviewer, and a certified project inspector, who may be the same person.
B. Any person who holds a certificate of competence from the Board in the area of plan review, project inspection, or program administration that was attained prior to the adoption of the mandatory certification provisions of subsection A shall be deemed to satisfy the requirements of that area of certification.
C. (For expiration date -- see note) Professionals registered
in the Commonwealth pursuant to Article 1 (§54.1-400 et seq.) of Chapter 4 of
Title 54.1 or a professional soil scientist as defined in §
54.1-2200 shall be deemed to satisfy the certification
requirements for the purposes of renewals.
C. (For effective date -- see notes) Professionals registered
in the Commonwealth pursuant to Article 1 (§54.1-400 et seq.) of Chapter 4 of
Title 54.1 or a professional soil scientist as defined in §
54.1-2200 shall be deemed to have met the provisions of this
section for the purposes of renewals of certifications.
2. That §§10.1-1408.2, 54.1-409, and 54.1-2205 and Chapter 22.1 (§§54.1-2209 through 54.1-2212) of Title 54.1 of the Code of Virginia are repealed.
