Kyndell Harkness, Star Tribune

City rules on tree trimming are onerous

  • Article by: BRYAN HUNTINGTON
  • November 14, 2011 - 6:09 AM

In August 2009, Jim Dolphy answered a customer's call about a fallen tree after a tornado had lashed through Minneapolis.

While Dolphy was at the property, a city inspector confronted him and demanded to see his tree-trimming license. He was fined $250 because he helped clean up after a natural disaster.

How can that be? It is because the city government thinks some people who trim trees every day for a living, like Dolphy, are lawbreakers.

The city requires a person or business offering "tree servicing" to employ a "qualified arborist." Becoming one is no easy matter. Arborists must either be certified by the International Society of Arboriculture or have a four-year degree in forestry or a related field.

Becoming certified or obtaining a degree can be time-consuming and expensive and may have nothing to do with the kind of service that Dolphy offers. ISA certification requires a minimum of three years of full-time experience and passing an exam, only a minute portion of which directly relates to trimming and cutting down trees.

Exam subjects include "soil management" and tree "identification and selection." If Dolphy went back to school to obtain a degree, he would have to take classes in subjects such as vegetation, measuring/modeling forests, or hydrology and watershed management.

Requiring someone who simply wants to trim a tree to have a four-year degree in forestry is outrageous, to the point of being unconstitutional. The Minnesota Constitution forbids the city and other governments from enforcing licensing schemes like this.

The state Supreme Court has ruled that the government may not require an entrepreneur to have expertise in areas that have such an attenuated relationship to their work as to be irrational.

The city justifies the requirement on the grounds that a qualified arborist needs to be on staff to decide whether to be present for a particular job, such as those that may present electrical hazards.

Yet, the law does not require the arborist actually be present for any job. In fact, recent reports show that the city has never ever reprimanded a tree-trimming business because of a failure to supervise.

All it mandates is that businesses have an arborist on the payroll. This is no problem for larger companies, but it is insurmountable for entrepreneurs like Dolphy.

Thus, the law not only is oppressive on those who seek to operate a business in tree trimming, but also serves as government-enforced protectionism for large businesses already providing these services.

As with most occupational regulations, the city is hiding behind the pretext of health and safety to justify granting favor to established companies that advocate for licensing laws to fence out new competitors.

Unfortunately, this law is not unique. Occupational licensing regimes now require 30 percent of all workers to get governmental permission before they can work -- up from 5 percent in the 1950s.

This growth has its costs; the regulations reduce jobs and cause higher prices. In fact, there are 15,000 fewer jobs and $3 billion annually in higher prices because of licensing regimes enacted by the state and by cities like Minneapolis with little evidence of increased consumer protection.

Dolphy started his business in 2005 but has had to abandon his Minneapolis customers because the cost of hiring a qualified arborist is simply too high.

Still, he has operated his solo business in other cities that have no arborist requirement, including Apple Valley, Lakeville and Eagan, with no danger to the public.

Thankfully, Dolphy and other entrepreneurs are standing up for their right to trim trees and against the crony capitalism at the heart of Minneapolis' protectionism.

The law firm of Maslon Edelman Borman and Brand is challenging the ordinance in court, representing Dolphy and another tree trimmer free of charge.

It is critical that they are successful and that the ordinance be struck down so that the next time Jim Dolphy receives a customer's call, he can cut down a tree without being branded a criminal.

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Bryan Huntington is a law clerk for the Institute for Justice Minnesota Chapter.

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