A2589

An Act concerning the licensure of tree experts and tree care operators and the registration of certain employers, amending and supplementing P.L.1940, c.100, and amending P.L.1996, c.20.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) The Legislature finds and declares that trees are an important part of New Jersey's environment. In addition, trees provide New Jersey residents with value and benefits if healthy and sound and well cared for trees are the result of tree experts who are qualified and properly trained in tree care services.

The Legislature further finds that there has been an increase in both people performing tree care services and in accidents and fatalities during tree care operations. New Jersey has experienced tree-related worker fatalities due to a lack of knowledge of safe work practices and proper tree care procedures, which is a threat to public safety. Currently, there are no requirements by the State for those performing tree care services or tree care operations even though there are recognized tree care industry standards for performance, as well as for safety and health. Additionally, due to the proliferation of certifications within the tree care industry, the current tree expert certification is unrecognizable and indistinguishable from those provided by tree care associations, thereby leading to consumer confusion and uncertainty.

The Legislature therefore determines that it is appropriate for the State to encourage and promote safe tree operations and the awareness and compliance to industry standards, as well as to recognize New Jersey licensed tree experts and licensed tree care operators for the purpose of reducing and preventing injuries and fatalities to tree care workers, and as a means to protect the public by preventing unqualified individuals from engaging in tree care operations.

2. Section 7 of P.L.1996, c.20 (C.45:15C-2.1) is amended to read as follows:

7. ["Certified tree expert"] “Licensed tree expert" means a natural person who has satisfied the requirements of P.L.1940, c.100 (C.45:15C-1 et seq.) and who has been authorized by the board to present himself to the public as a [certified] licensed tree expert. [Nothing in this act shall be construed to restrict or otherwise affect the right of any person to engage in the practice of arboriculture, but a person shall not hold himself out as, or use the
title of, a certified tree expert unless he has been, and continues to be, so authorized by the board.]

“Licensed tree care operator” means a natural person who has satisfied the requirements of P.L. , c. (C. ) (pending before the Legislature as this bill) and who has been authorized by the board to present himself to the public as a licensed tree care operator.

(cf: P.L.1996, c.20, s.7)

3. Section 3 of P.L.1940, c.100 (C.45:15C-3) is amended to read as follows:

3. The Department of Environmental Protection shall establish a board of tree experts consisting of [three] seven members who shall be skilled in the knowledge, science and practice of tree care and , except for those first appointed after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), shall have been [certified] licensed tree experts for a period of at least five years prior to their selection. Members of the board shall hold office for a term of three years, and thereafter until their successors are appointed by the department. Vacancies shall be filled for the unexpired terms only. The department shall make all rules and regulations necessary to carry into effect the provisions of this act.

(cf: P.L.1996, c.20, s.1)

4. Section 4 of P.L.1940, c.100 (C.45:15C-4) is amended to read as follows:

4. [The certificate of "certified tree expert"] A tree expert license shall be granted by the board upon application by any natural person who is (a) a citizen of the United States [or has duly declared his or her intention of becoming a citizen], and (b) who is over the age of 21 years, and (c) who is of good moral character, and (d) who has graduated from a four-year college with a degree in forestry, arboriculture, ornamental horticulture, landscape architecture, natural resources or [the] an equivalent major field of study, or (e) who, for at least five years immediately preceding the date of his application, has been continuously employed in the practice of arboriculture, or (f) who has completed two years of college and passed courses in the theory and practice of tree care, including botany, plant physiology, dendrology, entomology, plant pathology, and soils, or their equivalent, and has been continuously employed in the practice of arboriculture for a period of at least three years preceding the date of his application or entry into college, and (g) who has passed the examination provided for in section 5 of P.L.1940, c.100 (C.45:15C-5). Upon satisfaction of the qualifications specified in this section, the board shall issue the successful applicant a wall certificate evidencing the applicant's [certification] licensure. The determination of the board as to an applicant's qualifications shall constitute final agency action. Licenses shall be effective for a two-year period and may be renewed biennially.

(cf: P.L.1996, c.20, s.2)

5. (New section) A tree care operator license shall be granted by the board of tree experts for three years from the date this act takes effect. A license shall be granted upon application by any natural person who is: of good moral character; and has graduated from a four-year college with a degree in arboriculture or an equivalent major field of study and has been continuously employed in the field of arboriculture for a period of at least one year preceding the date of his application, or has graduated from a two-year college with a degree in arboriculture or an equivalent major field of study and has been continuously employed in the practice of arboriculture for a period of at least two years preceding the date of his application, or has been continuously employed in the field of arboriculture for at least three years preceding the date of his application; and has passed a tree care operator’s examination deemed acceptable to the board, including, but not limited to, the certified arborist examination offered by the International Society of Arboriculture (ISA). Upon satisfaction of the qualifications specified in this section, the board shall issue the successful applicant a wall certificate evidencing the applicant’s licensure. Licenses shall be effective for a two-year period and may be renewed biennially.

6. Section 5 of P.L.1940, c.100 (C.45:15C-5) is amended to read as follows:

5. [New applicants who have never been certified or who have not held a certificate for three years previously] Applicants for licensure as tree experts shall take an examination, unless the board in its discretion waives this requirement. All examinations provided for herein shall be conducted and administered by the board. The examinations shall take place as often as may be necessary in the opinion of the board but not less frequently than once each year. A candidate who has taken the examination and failed any subject or subjects thereof, may, at the discretion of the board, be reexamined in that subject or those subjects only, at the next subsequent [examinations] examination held by the board, and if he passes in that subject or those subjects he shall be considered to have passed the examination. Nothing in this act shall be construed as prohibiting the reexamination in all subjects of a candidate who has failed any subject or subjects in a prior examination or of a previously licensed tree expert who fails to renew his license.

(cf: P.L.1996, c.20, s.3)

7. (New section) The board of tree experts shall require each licensed tree expert and licensed tree care operator, as a condition for a two-year license renewal, to complete 24 credits of continuing education requirements imposed by the board pursuant to sections 8 and 9 of P.L. , c. (C. ) (pending before the Legislature as this bill).

8. (New section) a. The board shall:

(1) establish criteria for tree expert education regarding the subject matter and content of continuing education courses;

(2) approve educational programs offering continuing education credits; and

(3) approve other equivalent educational programs and establish procedures for the issuance of credit upon satisfactory proof of the completion of these programs.

b. In the case of education courses and programs, each hour of instruction shall be equivalent to one credit.

9. (New section) The educational course of study required of licensed tree experts and licensed tree care operators for each two-year licensure period shall include instruction approved by the board covering the subjects of arboriculture, tree care, horticulture, business management, safety or any other related fields as deemed appropriate by the board.

10. (New section) The board may, in its discretion, waive requirements for continuing education on an individual basis for reasons of hardship such as illness or disability, retirement of the license, or other good cause.

11. (New section) Any person who is a certified tree expert pursuant to section 4 of P.L.1940, c.100 (C.45:15C-4) on the effective date of this amendatory and supplementary act shall be a licensed tree expert under and subject to the provisions of P.L.1940, c.100 (C.45:15C-1 et seq.) and this amendatory and supplementary act.

12. Section 6 of P.L.1940, c.100 (C.45:15C-6) is amended to read as follows:

6. The board of tree experts by majority vote thereof may permanently revoke or temporarily suspend the effect of a [certificate] license of any [certified] licensed tree expert or licensed tree care operator who has been convicted of a crime in the courts of this State, or has been guilty of any fraud or deceit in obtaining a [certificate] license, or who has been guilty of negligence or wrongful conduct in the practice of [professional] tree care services or tree care operations, as the case may be. The board may promulgate and may amend from time to time canons of professional ethics and may temporarily suspend for a period not exceeding two years the [certificate] license of any [certified] licensed tree expert or licensed tree care operator who violates the canons of professional ethics, this power of suspension being in addition to and not in limitation of the power to revoke or suspend heretofore provided in this section. Notice of and the date of hearing of any action pursuant to this section by the board shall be mailed to the holder of the [certificate] license at that person's registered address at least 20 days before the hearing. No [certificate] license issued under this act shall be revoked or suspended until the board has had a hearing, but the nonappearance of the holder of any [certificate] license after notice has been provided shall not prevent the hearing. By majority vote the board may reissue the [certificate] license of any [certified] licensed tree expert or licensed tree care operator whose [certificate] license has been revoked and may modify the suspension of any [certificate] license which has been suspended.

(cf: P.L.1996, c.20, s.4)

13. Section 8 of P.L.1996, c.20 (C.45:15C-7.1) is amended to read as follows:

8. All applicants for [certification] licensure or renewals for [certification] licensure under this act shall pay a fee for the issuance or renewal. Fees shall be determined by the board and may be increased from time to time by the board. The board may promulgate rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to establish and charge fees for any of the services it performs. [The revenue generated from these fees shall not exceed the operating costs incurred by the board under this act.]

(cf: P.L.1996, c.20, s.8)

14. Section 8 of P.L.1940, c.100 (C.45:15C-8) is amended to read as follows:

8. a. No person shall represent himself [or herself] to the public as having received a [certificate as provided for in this act] license as a tree expert or tree care operator, or shall practice as a [certified] licensed tree expert or licensed tree care operator, as the case may be, without having received a [certificate] license, and no person who, having received a [certificate] license and thereafter lost the same by revocation or had the [certificate] license suspended as provided for in this act, shall continue to practice as a [certified] licensed tree expert or licensed tree care operator, and no person shall use the title of [certified] licensed tree expert or licensed tree care operator, or the abbreviation ["C.T.E."] "L.T.E." or “L.T.C.O.” or any other words, letters or abbreviations tending to indicate that the person is a [certified] licensed tree expert or licensed tree care operator, as the case may be, without having received a [certificate] license or if their [certificate] license has been revoked or suspended.

b. Any person who violates this section shall be subject to a [fine not exceeding $1,000] civil penalty of up to $2,000 for the first offense and up to $10,000 for the second and each subsequent offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense. The civil penalty shall be issued for and recovered by and in the name of the board and shall be collected and enforced by summary proceedings pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), including the reimbursement of the costs of investigation.

(cf: P.L.1996, c.20, s.5)

15. Section 9 of P.L.1940, c.100 (C.45:15C-9) is amended to read as follows:

9. The board may in its discretion grant [certification] licensure to any person who is not a resident of this State and who is the lawful holder of a substantially equivalent [certification] license issued under the laws of another state which extends similar privileges to [certified] licensed tree experts of this State; provided, the requirements for [certification] licensure in that state are, in the opinion of the board, substantially equivalent to those herein provided.

(cf: P.L.1996, c.20, s.6)

16. (New section) The board shall maintain a record of every tree expert and tree care operator licensed in this State, his place of business, place of residence, the date and number of his license, and shall annually publish the names and addresses of these licensees.

17. (New section) a. No employer shall engage in or advertise or hold itself out as offering tree care services or tree care operations unless the employer is registered with the board of tree experts.

b. A written application for registration shall be made to the board on the form prescribed by the board and shall contain the following information:

(1) The name and residence of the owner or operator of the tree care service or tree care operation;

(2) The municipality and location of the tree care service's or tree care operation’s principal place of business and any office, bureau, agency or subdivision of the company; and

(3) Any further biographical information of the applicant as required by the board.

c. The board, when satisfied with the examination of any application, shall issue a registration to an approved applicant upon payment of a fee in an amount established by the board by rule. The registration shall be renewable every two years upon payment of a renewal fee in an amount established by the board by rule.

d. As used in this act:

"Tree care services" means in regard to trees, pruning, removal, repair, fertilization, cabling and bracing, lightning protection, consulting, diagnosis and treatment of tree problems, management during site planning and site development, tree assessment and risk management, and all other forms of general tree maintenance and care consistent with classification code 0106 of the New Jersey Workers’ Compensation And Employers’ Liability Insurance Manual.

“Tree care operations” means in regard to trees, pruning, repairing, maintaining and removal, brush cutting, and all other forms of general tree maintenance and care consistent with classification code 0106 of the New Jersey Workers’ Compensation And Employers’ Liability Insurance Manual.

18. (New section) Every employer offering tree care services or tree care operations shall secure, maintain and file with the board proof of commercial general liability insurance in a minimum amount of $300,000 per occurrence and shall file with the board proof of workers’ compensation insurance coverage required pursuant to chapter 15 of Title 34 of the Revised Statutes.

19. (New section) The board may suspend or revoke the registration of an employer offering tree care services or tree care operations upon proof showing by a preponderance of the evidence that the employer:

a. Had made false or misleading statements of a material nature in the application for registration;

b. Failed to demonstrate that the employer, or at least one employee in each office or branch location of the employer who is directly responsible for the supervision of workers who engage in the performance of tree care services, is in possession of a tree expert license;

c. Failed to demonstrate that the employer, or at least one employee in each office or branch location of the employer who is directly responsible for the supervision of workers who engage in the performance of tree care operations, is in possession of a tree care operator license or tree expert license;

d. Conducted work, or allowed work to be conducted under its supervision, in a manner not in compliance with standards approved by the board, which shall include, but not be limited to, the standards of the American National Standards Institute (ANSI Z133.1 and A300 series) and any other related standards and best management practices;

e. Failed to provide instruction and training for its employees in the proper use, inspection, and maintenance of tools and equipment provided by the employer or to require that safe working practices be observed in accordance with the standards of the American National Standards Institute (ANSI Z133.1 and A300 series) and any other standards approved by the board;

f. Failed to submit to the board, annually, documentation of its training program for employees, including a model tree safety program checklist; or

g. Failed to carry or show proof to the board of its coverage by workers compensation or commercial general liability insurance.

20. (New section) In an emergency situation, an employer may employ in each office or branch location workers engaging in the performance of tree care services or tree care operations who are not supervised by at least one licensed tree expert or licensed tree care operator, as the case may be, for no more than 48 hours. An emergency situation shall exist if a temporary, unforeseen combination of circumstances requires immediate action to secure or protect the public, or property, or both.

21. (New section) The board may issue and cause to be served, upon an employer charged with a violation of P.L.1940, c.100 (C.45:15C-1 et seq.) or P.L. , c. (C. ) (pending before the Legislature as this bill), an order requiring the employer to cease and desist from the violation, and the board may impose upon an employer violating a provision of this act a civil penalty of up to $2,000 for the first offense and up to $10,000 for the second and each subsequent offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense. The civil penalty shall be issued for and recovered by and in the name of the board and shall be collected and enforced by summary proceedings pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), including the reimbursement of the costs of investigation.

22. (New section) The provisions of this act shall not apply to:

a. Any public utility, as defined in R.S.48:2-13, doing business in this State, or any employee of a public utility while in the actual performance of duties as an employee; or

b. Any employer under contract with a public utility, as defined in R.S.48:2-13, who is engaged in tree trimming for purpose of line clearance, or any employee of such employer while clearly identifiable as being engaged in the performance of duties in regard to tree trimming for purpose of line clearance.

23. (New section) All fees and fines collected pursuant to this act shall be deposited in the board’s account and their use shall be authorized by the board for the purposes of carrying out the provisions of this act.

24. This act shall take effect on the 180th day following enactment, except that subsection b. of section 19 shall take effect on the 720th day following enactment.

STATEMENT

This bill amends and supplements the "tree expert act," P.L.1940, c.100 (C.45:15C-1 et seq.). The bill provides for the use of the title "licensed tree expert," instead of the title "certified tree expert," as currently established by law, for individuals so authorized by the board of tree experts. In addition, the bill increases the membership of the board of tree experts from three to seven members.

The bill adds as a basis for satisfying the educational requirements to become a licensed tree expert, graduation from a four-year college with a degree in natural resources or an equivalent major field of study. Currently, the law requires an applicant seeking to become a tree expert to take an examination to be conducted by the board of tree experts. The bill specifies that this examination shall also be administered by the board. Further, the bill provides that if a candidate has failed any subject or subjects in the examination, that individual may be reexamined in that subject or subjects only at the next subsequent examination scheduled by the board.

Also, the bill establishes the licensure of tree care operators. This license shall be available to eligible applicants for three years from the date that this bill takes effect. To be eligible for such licensure, an applicant shall be: of good moral character; have graduated from a four-year college with a degree in arboriculture or an equivalent major field of study and have been continuously employed in the field of arboriculture for a period of at least one year preceding the date of his application, or have graduated from a two-year college with a degree in arboriculture or an equivalent major field of study and have been continuously employed in the practice of arboriculture for a period of at least two years preceding the date of his application, or has been continuously employed in the field of arboriculture for at least three years preceding the date of his application; and has passed a tree care operator’s examination deemed acceptable to the board, including, but not limited to, the certified arborist examination offered by the International Society of Arboriculture (ISA).

In addition, the bill requires licensed tree experts and licensed tree care operators to complete continuing education requirements as a condition of biennial license renewal. The board shall: establish criteria for tree expert education, including subject matter and courses of study; approve educational programs offering continuing education credits; and approve other equivalent educational programs. The educational course of study for continuing education shall include instruction approved by the board of tree experts covering the subjects of arboriculture, tree care, horticulture, business management, safety or other related fields. The bill mandates that the educational course of study required of licensed tree experts and licensed tree care operators for each biennial period shall include 24 hours of continuing education, with each hour of instruction equivalent to one credit.

Waivers of these continuing education requirements may be granted by the board of tree experts on an individual basis due to illness or disability, retirement of the license or other good cause.

This bill also stipulates that no employer shall engage in or advertise or hold himself out as offering tree care services or tree care operations unless the employer is registered with the board of tree experts. As defined in the bill, "tree care services" means in regard to trees, pruning, removal, repair, fertilization, cabling and bracing, lightning protection, consulting, diagnosis and treatment of tree problems, management during site planning and site development, tree assessment and risk management, and all other forms of general tree maintenance and care consistent with classification code 0106 of the New Jersey Workers’ Compensation And Employers’ Liability Insurance Manual. In addition, as defined in the bill, “tree care operations” means in regard to trees, pruning, repairing, maintaining and removal, and brush cutting, and all other forms of general tree maintenance and care consistent with classification code 0106 of the New Jersey Workers’ Compensation And Employers’ Liability Insurance Manual.

The bill requires that every employer offering tree care services or tree care operations shall secure, maintain and file with the board proof of commercial general liability insurance in a minimum amount of $300,000 per occurrence and shall file with the board proof of workers’ compensation insurance coverage required pursuant to chapter 15 of Title 34 of the Revised Statutes.

The bill exempts from its provisions: any public utility doing business in this State, or any employee of a public utility while in the actual performance of duties as an employee; or any employer under contract with a public utility who is engaged in tree trimming for purpose of line clearance, or any employee of such employer while clearly identifiable as being engaged in the performance of duties in regard to tree trimming for purpose of line clearance.

In addition, the board of tree experts may suspend or revoke the registration of an employer if the employer: made false or misleading statements of a material nature in the application for registration; failed to demonstrate that the employer, or at least one employee in each office or branch location of the employer who is directly responsible for the supervision of workers who engage in the performance of tree care services, is in possession of a tree expert license; failed to demonstrate that the employer, or at least one employee in each office or branch location of the employer who is directly responsible for the supervision of workers who engage in the performance of tree care operations, is in possession of a tree care operator license or a tree expert license; conducted work, or allowed work to be conducted, under its supervision in a manner not in compliance with standards approved by the board, which shall include, but not be limited to, the standards of the American National Standards Institute (ANSI Z133.1 and A300 series) and any other related standards and best management practices; failed to provide instruction and training for its employees in the proper use, inspection, and maintenance of tools and equipment provided by the employer or to require that safe working practices be observed in accordance with the standards of the American National Standards Institute (ANSI Z133.1 and A300 series) and any other standards approved by the board; failed to submit to the board, annually, documentation of its training program for employees, including a model tree safety program checklist; or failed to carry or show proof to the board of its coverage by workers compensation or commercial general liability insurance.

The bill also provides that the board of tree experts may issue and cause to be served, upon an employer charged with a violation of this bill, an order requiring the employer to cease and desist from the violation and the board may impose upon an employer violating a provision of this bill a civil penalty of up to $2,000 for the first offense and up to $10,000 for the second and each subsequent offense.