272 Galvin: Unlicensed Tree Expert Companies care. Such a modification would require persons performing tree removal for hire to meet the requirements of TE licens- ing, including qualification, examination, licensing, and proof of insurance. The reasons for seeking inclusion of tree removal in the work of a TE included the following: 1. The American National Standard for safe work prac- tices in the tree care industry includes “removing trees” in the scope of activities performed by arborists or tree experts (American National Standards Institute 2000); 2. Tree removal is often the most dangerous and expensive of tree care services. Ball and Vosberg (2003) reported that “Very few industries have a fatality rate above 30 per 100,000 . . . the fatality rate among police officers and detectives is about 13.5 per 100,000 . . . the annual fatality rate for tree workers generally does not dip be- low 30 per 100,000 and may be higher in some years.” To then have tree removal be the only tree service not requiring licensing or insurance is counterintuitive; 3. LTEs were subject to sanction (suspension or revoca- tion of license) if found guilty of negligence or wrong- ful conduct in the practice of tree culture or care during tree removal, but unlicensed tree experts (UnLTEs) did not need a license to remove trees and had no obligation with regard to standards of practice when performing removals; and, 4. Enforcement was very difficult under the existing lan- guage because practitioners performing tree care with- out a license often asserted in court that they were per- forming tree removal rather than tree care or that they charged for removals but performed pruning and other tree care for free to removal customers, thereby making those activities exempt from the law. House Bill 168 (Moe and Frush 2005) sought to expand the definition of the work of a TE to include tree removal or various means of treating the crowns of trees. The bill pro- vided exemptions for commercial logging or timber harvest- ing, installation of underground utility facilities or associated site construction, and for any activity performed on trees that are 6 m (19.8 ft) or less in height. The latter unusual exemption was a compromise between legislators and the landscape industry. Landscapers sought an exemption from the law, but “landscapers” are undefined in Maryland law and so could not be exempted by name. Moreover, the law applies to certain types of activities rather than to certain types of businesses. That is, the law is appli- cable to any entity performing tree care for hire whether they are a tree service, a landscaper, a home improvement con- tractor, or other type of business. The phrase “trees that are 20 feet or less in height” was derived from certain horticul- tural definitions of a tree being a woody plant that attains a ©2006 International Society of Arboriculture height of at least 6 m (19.8 ft) at maturity (State of Maryland 2003). This legislative action showed how the tree care industry can be proactive in partnering with government to arrive at a solution rather than be a nonparticipant on the receiving end of a legislative action that had no industry involvement or consideration. The law requires that prospective licensees meet the quali- fications for licensure, including passage of an examination administered by the Maryland Department of Natural Re- sources (MD DNR), and maintenance of insurance protection (liability and workers’ compensation) for the period that the license is in effect. Enforcement mechanisms vary depending on whether the offender is an LTE or an UnLTE. If the offender is an LTE, penalties apply for: fraud or deceit in obtaining the license, negligence or wrongful conduct in the practice of tree culture or care, or violation of rules of ethics that the department promulgates (State of Maryland 2005). Penalties for LTEs are administrative; the only penalty available under law is sus- pension or revocation of the LTE’s license. If there is no settlement or remediation, and if the agency finds cause to proceed with an action against the LTE’s license, such cases are ultimately ruled on by an independent third party, an administrative law judge at Maryland’s Office of Adminis- trative Hearings. If the offender is an UnLTE, penalties apply for operating a tree expert business without a license or false advertising or soliciting an unlicensed tree expert business (District Court of Maryland 2003). These charges are mis- demeanor criminal citations handled by the District Court system. House Bill 168 passed and was effective 1 October 2005. Because many UnLTEs who would not be subject to penalty before passage of House Bill 168 could be subject penalty after the effective date of the legislation, MD DNR sought to identify and communicate with UnLTEs regarding the pend- ing changes in the law in an effort to facilitate compliance. This was difficult because there was no registry of, or trade association for, UnLTEs. MD DNR ultimately mailed notice to over 1,400 UnLTEs identified by various means. This article relates to one component of this outreach ef- fort: identification of and outreach to UnLTEs advertising tree care services through online phone listings. We sought to answer the following questions related to these UnLTEs: 1. How many UnLTEs are there advertising by this means, and how does this compare with the number of LTEs advertising in the same manner? 2. What types of contact information do these UnLTEs include in their advertising? 3. How many of these UnLTEs have previously been the subject of complaints to MD DNR regarding the LTE law?
November 2006
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