September 22, 2015

Licensing of landscapers set to change in Oregon

By Caleb R. Trotter Attorney

Oregon is one of the few states that requires landscape contractors to be licensed. One of Oregon’s requirements is that aspiring landscapers must pass a written exam. The Pacific Legal Foundation is generally opposed to anti-competitive occupational licensing laws, which is why I was intrigued to see that earlier this summer, the Oregon Legislature passed HB 3304.

Among other things, HB 3304 requires the written landscaper exam to be translated into Spanish, and creates a practical skills exam to function as an alternative to the written exam. From appearances, it looks like supporters of the bill intend to expand access to the industry by increasing the number of options people have to get licensed. If Oregon insists on licensing landscapers, this sounds like an improvement to existing law.

However, I then remembered the story of the Louisiana florist exam. Until recently, Louisiana required people seeking to become florists to pass a written exam and complete four floral arrangements for inspection. Predictably, the grading criteria for the floral arrangements was highly subjective, and resulted in passage rates of 30-40%. Fortunately, the Louisiana Legislature removed this subjective component of the florist license requirements in 2010.

It is with this history in mind that some of the language of HB 3304 gives me pause. The bill states that the Landscape Contractors Board “shall design the practical skills test to determine whether the applicant has the ability to perform the tasks most commonly required of a landscape construction professional in a manner meeting or exceeding practice standards established by board rule.” This language gives me pause because a common task performed by landscapers is planning the arrangement of flowers, shrubs, trees, etc. In fact, the task is even part of the legal definition of a landscaper.

Now, I have been unable to find a list of the “most common” tasks performed by landscapers in Oregon, but it seems reasonable to expect planning arrangements to fall under this category. Due to this not unlikely categorization, the “meeting or exceeding practice standards” language also gives me pause because in the context of judging the arrangement of a flower bed, a subjective judgment is possible. While I’m sure some ways of arranging plants are better than others, it also seems to me that a lot of it depends on personal preferences.

Seeking to expand access to the landscaping industry is certainly laudable, but the Landscape Contractors Board should ensure that the exam is developed and administered in a wholly objective manner. The good news is that the Landscape Contractors Board has until September 2016 to develop and implement the new practical exam. That should be plenty of time to clearly inform would-be landscapers of what the standards are, and to design an objectively clear scoring checklist and process that leaves no room for subjective grading. The future landscapers of Oregon are counting on it.

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