The Virginia Chapter of the American Society of Landscape Architects (ASLA Virginia) offers the following comments.

1.  Applicability of tradesperson to Virginia-licensed design professionals is problematic.

Tradesperson is not defined in the Code of Virginia but is defined in 2 VAC 5-455 as any person who, for compensation, proposes plants for installation or installs plants. (emphasis added)

The practice of architecture, engineering, and landscape architecture is defined by the Code of Virginia as a professional service  2.2-4301. Definitions. And architects, professional engineers, and landscape architects typically attend and complete an accredited university degree in a professional design program versus a trade school.

Virginia-licensed landscape architects customarily specify plants for installation as part of land development, building construction (rooftops and over structures), and landscape restoration and rehabilitation projects as a professional service. Some Virginia-licensed architects and professional engineers may also specify plants as part of building construction (rooftops and over structures), land development, and landscape restoration and rehabilitation projects as a professional service.

Tradesperson is not defined by the Code of Virginia. The plain meaning of tradesperson is a person who practices a trade.

As best as can determined, landscape architects, architects, and professional engineers are not referred to as individuals who practice a trade in the Code of Virginia and the Virginia Administrative Code.

ASLA Virginia’s position is that Virginia-licensed landscape architects are licensed professionals providing professional services and therefore are not tradespersons.

ASLA Virginia request: 

Explicitly exempt design professionals regulated by the Board of Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects. The exemption could be removed after the Code of Virginia § 3.2-802. Powers and duties of Board; quarantine, is amended as follows:

C. The Board shall develop and adopt regulations requiring professionals and tradespersons involved with proposing or installing plants to provide written notification to property owners for all plants proposed for installation that are included on the list of invasive plants established in § 10.1-104.6:2.

2. Potential confusion of the regulated population.

Given that the term tradesperson is used in the proposed regulation, professionals, particularly Virginia-regulated design professionals, may simply determine that tradesperson does not apply 

If Virginia-regulated design professionals are not explicitly exempt from the draft regulation, VDACS should communicate with the Virginia Department of Professional and Occupational Regulation (DPOR) to request that DPOR notify the regulants under the Board of Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects to ensure all Virginia-regulated design professionals are made aware of the new regulation.

Note that many Virginia-regulated design professionals are not members of a professional association such as the American Society of Landscape Architects, American Institute of Architects, or the National Society of Professional Engineers. Consequently, relying exclusively on communication of the new regulation to professional associations will result in missed communications to the larger regulant population.

Similarly, there are many landscape designers, garden designers, horticulturalists, landscape maintenance specialist, and others who specify plants that do not hold membership in professional or trade associations.

Many Virginia-regulated design professionals do not reside in Virginia. These professionals hold a valid Virginia license so that they can offer to practice and practice in Virginia. In the case of these professionals, notification of the new regulations would likely have to come from the Board of Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects.

There is a very real danger that an unintentionally uniformed professional or tradesperson will be subject to § 3.2-809. Penalty for violation. Any person who fails to comply with the provisions of this chapter or the regulations adopted hereunder is guilty of a Class 1 misdemeanor. 

Conviction of a Class 1 misdemeanor could result in a loss of Virginia-issued design professionals license or certification, loss of a contractor’s license, and other actions that could result in termination of employment or the termination of a business enterprise.

ASLA Virginia recommendation:

A first offense should be waived and the person provided with information on the relevant regulation to support that person’s compliance with the relevant regulation.

3. Additional concerns.

Many design firms or sole proprietors serve as a subconsultant to the prime consultant who holds the contract with their client. For example, Landscape Architect B holds a subcontract with Architect A. Architect A is responsible to some extent for the services provided by Landscape Architect B. In many cases Landscape Architect B may not have any direct contact with Architect A’s client. The regulations or a guidance document must address these complex relationships to establish the regulatory compliance roles and responsibilities of complex design teams.

In the design and construction industries in Virginia there are statutes of limitations. Will exposure to violating the relevant code section and regulations be in perpetuity? 

How will claims be managed and enforced when the claims are made for any sighting of an invasive plant, regardless of when that plant was installed? Will there be a guidance document for the process of submitting claims and if so, will there be an enactment date? 

How will the general public be made aware of the regulations?

How will non-English speakers be addressed? Will the regulations and guidance documents be published in other languages?

VDACS should develop a webpage with guidance documents including a notification template.

On behalf of the members of ASLA Virginia, thank you for the opportunity to provide comments.