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Appeals court revives Mpls. tree trimmer's license challenge

  • Article by: ABBY SIMONS
  • Star Tribune
  • December 31, 2012 - 7:07 PM

The state Court of Appeals has revived a tree trimmer's legal fight with Minneapolis over whether he can prune trees in the city without a certified arborist on staff.

In what Jim Dolphy's advocates call a victory for small businesses, the ruling reversed a district judge's dismissal of the case, meaning that Dolphy's lawsuit will return to Hennepin County District Court. However, city officials say the ruling simply means Dolphy will receive more time to present his case, with what they believe will be the same outcome.

"We remain confident that the ordinance is constitutional and that the court will rule again to grant judgment in the city's favor in this case," Minneapolis City Attorney Susan Segal said in a statement.

According to the opinion, Dolphy was licensed by the city to operate a tree-trimming business from 2006 to 2008. His services included tree trimming, pruning and removal, along with stump grinding and removal. He did not diagnose or treat diseased trees or apply pesticides. On the rare occasions he discovered a diseased tree, he referred the job to a specialist.

In 2007, the city of Minneapolis changed its law so that those licensed as tree "servicers," such as Dolphy, would now need to employ a certified arborist.

Dolphy, who argued he could not afford the certification himself or to hire an arborist, sued the city in late 2011, claiming the requirement violated his rights to due process and his right under the Minnesota Constitution to pursue his chosen livelihood.

At Minneapolis' urging, a judge threw out the lawsuit. Dolphy appealed, arguing that he did not have enough time to gather additional evidence, such as expert opinions regarding the expertise of tree trimmers vs. arborists.

The Appeals Court sided with Dolphy, reasoning that he must be given the chance to present evidence as to whether the ordinance protects public health and safety.

Dolphy got legal support from the Minnesota chapter of the Institute for Justice, a libertarian public interest law firm. Staff attorney Anthony Sanders called the ruling significant because the case is "about how far the government can restrict your right to work without any evidence that what it is trying to do actually furthers the public interest."

Sanders said cases such as this are evidence of arbitrary licensing laws.

He said 30 percent of workers must obtain a license, compared with 5 percent in the 1950s. The laws, he said, have no connection to public health and safety and do not protect small businesses such as Dolphy's from established competitors that have more financial resources to hire arborists.

Abby Simons • 612-673-4921

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