Arborist Advisory Council Meeting Minutes January 10, 2005
Members Present:
Dave Newell, tish carr, Lois Stack, Ted Armstrong, Art Batson, Wes Davis
Members Absent:
Bob Levesque
Staff Present:
Debbie Davis, Terry Bourgoin
Guest Present:
Mark Randlett, Assistant Attorney General
Chair tish carr called the meeting to order at 11:13 a.m. Ted Armstrong moved and Dave Newell seconded that the minutes of the November 19, 2004 meeting of the Arborist Advisory Council be approved as mailed. Motion carried unanimously.
Program Update - Debbie Davis
Debbie reported that 4 exams were held in December. She noted that because of a storm, half of the candidates cancelled the morning exam on the first exam date. An exam was also held for Lucas employees on December 8. All but four candidates who signed up for that exam took it, and all passed. Debbie noted that 365 licenses have been issued to date, with 202 remaining to be licensed (of which 80 are Lucas employees and 122 are individual arborists). Late fees will begin to be assessed to anyone who sends their license renewals in. Wes Davis asked if the number of late licenses is common for this date. Debbie indicated it was.
Update on Recent Complaints - Terry Bourgoin
Terry updated the Council on the situation with Gilman Lamarre. Terry noted that he had several additional calls with complaints against Mr. Lamarre. Terry asked the complainants to provide evidence about the work Mr. Lamarre was doing, but no one sent anything in. In talking with one person, Terry learned that Mr. Lamarre had done some work for a Catholic group home. Debbie Davis spoke to a staff member at the home and asked if the home had entered into a contract with Mr. Lamarre. The staff member indicated it did and sent a copy to the Department. The contract showed that Mr. Lamarre agreed to take down trees at the group home, and represented himself as being licensed, both of which are violations of the Arborist Licensing Law for unlicensed individuals. Terry sent that information to Mark Randlett, with the Attorney General's Office. That evidence, along with Mr. Lamarre's website soliciting work and also representing himself as a licensed Maine arborist, are sufficient evidence for Mark to pursue a violation of the Arborist Licensing Law. It may also be sufficient to file a complaint through the Unfair Trade Practices Law.
Debbie informed the Council that an arborist with a criminal violation sent his application for renewal in. The individual reported that he had a conviction in the past year for possession of a firearm by a prohibited person and having a loaded firearm in a motor vehicle. When contacted, the individual explained that the charge was in July of 2003 and the conviction wasn't until October of 2004. Council members asked Mark Randlett about refusing to deny a license based on a criminal violation. Mark indicated there are various categories of violations that warrant the denial of a license, and the length of time can be based on the seriousness of the crime. Mark wasn't familiar with this specific case, so wouldn't comment on it. He noted that if the Department chose to deny a license, it would first have to send a letter to the individual explaining why the license is being denied and explaining that the individual has a right to an Administrative Hearing. Mark said the individual's current license would remain in effect until a final decision is made. Mark was asked how long the process would take. He noted the hearing could be scheduled as soon as the individual was available, and the Department could make a decision and send a letter explaining its decision immediately. The individual could appeal the Department's decision to Superior Court. Ted Armstrong indicated the individual at least admitted the violation, and Council members generally did not feel the violation rose to the level of a license denial. Terry indicated the Department will make a decision on the license renewal request and will keep the Council informed if the decision is to deny the renewal.
Discussion on Enforcement Process - Mark Randlett
Mark discussed the Gilman Lamarre situation. He noted that Terry referred the matter to the Attorney General's Office. He will develop a complaint against Mr. Lamarre to file in court to bring an enforcement action against him. The complaint will seek a court order preventing Mr. Lamarre from engaging in any further arborist work. If Mr. Lamarre violates the court order, he could be held in contempt of court. The State will also request civil penalties, which can amount to up to $500 per day for each day in violation of the law. Mark indicated Mr. Lamarre's conduct shows a pattern of violating the law and could warrant a daily fine. Mark doubted that the court would grant such a request, however. Council members asked if other laws have potentially been violated. Mark indicated Mr. Lamarre's actions could violate the Unfair Trade Practices Act. He noted that Mr. Lamarre's web site indicates he is a licensed arborist, which is not true. If the case is found to be a violation of that law, the court could grant injunctive relief and also order payment for the time and expenses of the Attorney General's Office. Mark is working on preparing the complaint, which has to be reviewed by the Litigation Division. He thinks that group will approve pursuing the complaint.
Mark discussed the enforcement protocol in general. He suggested the Department specify the steps it takes leading up to a referral to the Attorney General's (AG's) Office. Steps such as sending warning letters, attempting to negotiate consent agreements to settle the complaint, etc. could be listed. Mark indicated consent agreements are often developed to avoid referring a case to the AG's office, and are usually written by the Department in consultation with the AG's Office. If the case is not resolved through these efforts, the Department can make a written request asking the AG's Office to consider an enforcement action to resolve the complaint.
Mark indicated certain information should be provided in order for the AG's office to pursue the complaint, such as the name of the violator; copies of written documents, contracts, etc.; a list of witnesses, such as customers, Department staff, etc.; and a brief summary of the situation. The AG's office will then assess the situation and determine whether to pursue the enforcement action. If a decision to move forward is made, the Department should continue to gather information and evidence to support the enforcement action, or attempt to resolve the complaint through a consent agreement. The AG's office will research the situation and draft a complaint for submission to the Litigation Division. If the enforcement action is supported by the Litigation Division, the AG's office will send the complaint to the Sheriff's Office in the county in which the individual lives. The Sheriff's Office will serve the individual with the complaint, at which time the process is in the hands of the court system.
tish asked how many incidents are needed for the Department to file a complaint to the AG's office. Mark said one violation is sufficient, if the Department feels the violation rises to the level of court action. Mark indicated if evidence of more violations can be provided, it documents a pattern, which makes it easier to get a positive response from the court. Wes Davis asked if consent agreements have to be approved by the AG's office. Mark indicated he likes to review and approve the language of an agreement, because consent agreements are significant steps in the Department's actions. Mark noted that consent agreements are nothing more than a contract between the Department and the violator, unless a Department has statutory authority for specific enforcement action. Wes asked if consent agreements require evidence also. Mark indicated they do - primarily evidence of a pattern of violations.
tish asked what happens if a violator continues to practice after a court action. Mark indicated courts have broad contempt powers, including jail terms. tish asked if the violator could work for another company. Mark indicated there was no way to stop that. Wes asked if enforcement actions can be publicized through news releases. Mark indicated the AG's office wouldn't take that action, but if a reporter sees a notice of the action in court news and calls him, Mark would talk to the reporter and answer questions within the bounds of his authority. Mark indicated the Department could prepare a news release if the court enjoins the violator from doing tree work. Terry indicated if an arborist loses his or her license due to court action, the Department has an obligation to notify the public of that fact so they can avoid hiring unlicensed individuals.
Art Batson asked if an arborist loses his or her license, does the Department still have any enforcement authority? Mark indicated if an arborist loses his or her license and continues to work, the Department can pursue further enforcement actions as discussed earlier. Terry noted that if an arborist is licensed, the Department has more options, such as revoking or withholding renewal of the license. If the individual is not licensed, the Department can only refer the situation to the AG's office to seek court relief. Mark noted that the AG's office would then have to file a complaint in court, as noted previously. If an arborist is licensed, the AG's office can short-circuit the suspension process in emergency situations and can request an emergency suspension for 30 days.
Mark discussed the process once a complaint is served. He indicated the complaint is filed in District Court, and the individual has 20 days to submit a response. If the individual fails to respond, he or she defaults. If the individual submits a response, the court schedules the case, which could be months in the future. Prior to the trial, the AG's office works with the Department to line up witnesses and prepare the case. Once the case is heard, the judge generally issues a ruling in a few days to a month. The AG's office can ask the court to issue a preliminary injunction, which must meet certain standards. But if the request for an injunction is based on a statute and the State has evidence of the violation, it is relatively easy to meet the standards. This request has to be filed in court. Other actions could be requested also. In Mr. Lamarre's case, for example, the State could ask that Mr. Lamarre's web page be removed from the Internet.
tish asked Mark if referrals are "ranked" by the AG's office. Mark indicated they are not. He indicated he may not get to a Department request right away if he is working on some other issue, but once he submits a request for court action, it is reviewed on its merits. Mark noted that the quality of evidence is important. Having documentation and witnesses are essential. He also noted that the process is rather lengthy and the Department could submit legislation to request authority to impose immediate administrative penalties and revocation of licenses, but the legislature does not routinely provide that authority to Departments. Art Batson asked if the Department can seek rehabilitation as one option when dealing with violators. Mark indicated that is not the function of the AG's office. If there are programs to retrain or relicense an individual, the court may order that action.
Terry and the Council members thanked Mark for attending the meeting and providing his insights on enforcement options with individuals who violate the Arborist Licensing Law.
Update on Arborist Legislation - Terry Bourgoin
Terry noted the law has been submitted as discussed at the last meeting. He indicated it has not been published yet, so has no LD number. Terry indicated that staff will notify Council members when the bill is printed. Terry encouraged Council members and others to attend the hearing and to testify. tish noted that the industry could propose an amendment to eliminate the exemption for state and municipal employees from having to obtain a license to do tree work as part of their normal line of work. Terry requested that if this is to be done, it should not be under the auspices of the Council. Lois Stack noted this is a safety issue and should be addressed at some point. Ted Armstrong noted that the Council voted not to pursue this issue further but to deal with it as an educational issue (by inviting state agency representatives to meet with the Council and by presenting information to Code Enforcement Officer (CEO) training). Terry noted that he had contacted the State Planning Office regarding the latter issue and was told that Lana Clough was the contact person for CEO training. Terry was told if speakers can be provided on arborist issues, they could probably be added into the community forestry segment of the training.
Study Guide Costs - Terry Bourgoin
Terry noted he contacted ANSI to discuss purchasing the standards at a reduced price. The ANSI representative indicated the standards are sold by Global Engineering Company. Terry called that company and explained the State of Maine is trying to include the standards in its Arborist Study Guide. Terry asked if the company could waive the copyright on the standards so they could be reproduced, or if the Department could get copies of the standards at a reduced price because it is a government agency and providing that we make bulk purchases of the standards. The Global Engineering Company representative indicated the copyright could not be waived but indicated he would talk to his manager to see if the standards could be sold at a reduced price. The representative said there may be some other options he could look into as well, and agreed to call Terry back with the information.
Ted Armstrong indicated he contacted the Tree Care Industry and was told the group would sell the publications for $25 to non-members and probably less to members. Ted asked if the group would sell the publications cheaper if bought in bulk, but never got a response. Art Batson offered to call Peter Tersinberger, with the Tree Care Industry, to follow up on that. Terry noted there are several components of the A-300 standard - Trees, Shrubs and Other Woody Plants; Fertilization; and Cabling and Bracing. Each is sold separately, greatly increasing the cost. Terry asked if all three are equally important, or if one is more important than the other. Council members agreed the first one would be the most important for the study guide.
Tentative Meeting Dates for the Year - tish carr
tish asked if the group could schedule dates for the next several meetings. Wes asked how frequently the group should meet - monthly? until the busy season? tish indicated it may be important to meet for the next few months to follow the proposed Arborist Legislation and then decide to either take a break or schedule additional meetings. Dave Newell suggested that the Council not meet in April and May due to heavy workload. The group agreed to meet on the following dates - February 15, March 14, and June 7.
Discussion of Revised Short-Term Goals - tish carr
tish indicated she met with Ann Gibbs and revised the short-term goals for the Council, which were distributed electronically with the agenda for this meeting. The revised list shows that most of the short-term goals identified by the Council have been accomplished. tish asked if any of the long-term goals should be moved to the short-term list. Lois asked how public education should be conducted. Terry indicated he prepared a news release about the value of hiring a licensed arborist and sent it to various newspapers, but it wasn't used very much. Lois asked if a public education campaign was needed, and what would it involve. Council members discussed the possibility of preparing a brochure to notify the public to hire a professional arborist rather than the "person down the street". Lois asked where such brochures would be distributed. Wes suggested they be provided to Town Offices - they generally have racks where such material can be displayed. Debbie suggested the brochures could be sent to insurance companies since they provide homeowner policies. Lois suggested they could also be provided to realtors and distributed at home and garden shows. Ted noted that ISA has brochures on Why Hire an Arborist, which is on the ISA website. He also mentioned that MAA developed a 15 second public service announcement (PSA). tish indicated the PSA was sent to Adelphia, which ran it on their local Augusta channel. Dave Newell suggested the spot be sent to other cable companies. Lois asked if information should be sent to companies like McDonald's which hire companies to do work around their restaurants. Council members indicated such companies often hire unlicensed and untrained individuals, which could cause safety problems. Lois indicated several good ideas were suggested in a few minutes and suggested the group set time aside to develop a media strategy and brainstorm how to distribute the brochures and PSA.
Short-term goals identified by the group for action at upcoming meetings were:
• Development of an enforcement flow chart
• Discussion/final recommendation on the Apprentice License
• Finalization of a new Study Guide
• Public education campaign - can something be done for Arbor week?
• Categories of Licenses and types of tests
• Changes in testing - rule change needed
• Development of additional question for the testing process, depending on what is finalized as a Study Guide
Agenda Topics for the Next Meeting
The Council asked Terry to have staff summarize the enforcement process for review by the Council. The Council discussed the status of test questions for the exam. Ted noted that Tom Hoerth suggested that the exam ask questions that are important for arborists to know, not questions like the desired spacing of trees in a city. Dave and Ted agreed to review the questions and asked that they be printed by category. Lois suggested that we seek outside reviewers also, like Jim Dill for pest management, Terry for regulatory issues, and herself for biology.
Under Other Business, tish noted that ISA will host exams in February, May, August and November in 2005.
Since no further business was pending. Ted Armstrong moved and Dave Newell seconded that the meeting be adjourned. Motion carried unanimously. The meting was adjourned at 2:10 p.m.
Respectfully Submitted,
Terry Bourgoin
