HB5775 95TH GENERAL ASSEMBLY

LRB095 17332 RAS 43402 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB5775

Introduced , by Rep. Richard P. Myers

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 80/4.29 new
30 ILCS 105/5.708 new

Creates the Tree Expert Licensing Act. Provides for the licensure of tree experts by the Department of Agriculture. Establishes the Tree Expert Licensing Board. Sets forth powers and duties of the Department and the Board, licensure requirements, grounds for discipline, penalties for violation of the Act, and administrative procedure. Includes provisions concerning exemption from the Act. Limits home rule powers. Amends the Regulatory Sunset Act to set a repeal date of January 1, 2019 for the new Act. Amends the State Finance Act to establish the Tree Expert Licensing Fund. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Tree Expert Licensing Act.

Section 5. Purpose. Practice in the tree expert profession in the State of Illinois is hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the tree expert profession merit and receive the confidence of the public and that only qualified persons be permitted to use the title of tree expert in the State of Illinois. This Act shall be liberally construed to carry out these objectives and purposes.

Section 10. Definitions. In this Act:

"Board" means the Tree Expert Licensing Board.

"Department" means the Department of Agriculture.

"Director" means the Director of Agriculture.

"Person" means any individual, partnership, corporation, business trust, limited liability company, or other legal entity.

"Tree expert" means any person who, for profit, (i) diagnoses the condition of shade or ornamental trees and recommends or supervises the treatment of any such trees, (ii) in any manner treats ornamental trees or any such trees by feeding or fertilizing, or by pruning, trimming, bracing, treating cavities, or other methods, (iii) in any manner engages in the removal of ornamental or any such trees, or (iv) protects or attempts to protect ornamental trees or any such trees from damage by insects or disease by spraying or any other method.

Section 15. Application of Act; exemptions. This Act does not apply to any of the following:

(1) Any department, bureau, or agency of the United States of America, the State of Illinois, or any county, municipality, or political subdivision in this State or any official representative of a department, bureau, or agency of the United States of America, the State of Illinois, or any county, municipality, or political subdivision in this State in the pursuit of his or her official duties.

(2) Any person with reference to trees on his or her own premises.

(3) Any individual performing labor or services on or in connection with trees at the direction and under the personal supervision of a licensed tree expert, while in the performance of those functions.

(4) Any public utility, including its authorized employees and agents, when engaged in tree trimming or tree removal for the purpose of line clearance and in order to ensure the continuity of utility service to the public or on the public utility's own property.

(5) Any person engaged in commercial logging or timber harvesting operations.

Section 20. Licensure required. Beginning 6 months after the adoption of final administrative rules under this Act, no individual or entity may practice, offer to practice, attempt to practice, or hold himself, herself, or itself out to practice the profession of tree expert without being licensed under this Act.

Section 25. Application; licensure requirements.

(a) Every person applying to the Department for licensure must do so in writing on forms prescribed by the Department and pay a required nonrefundable fee of $50. An applicant must indicate if the license is sought for an individual or an entity. The application shall include without limitation the name, principal place of business, address, and telephone number of the applicant.

(b) Licensure may be granted in an individual's name to an individual applicant who meets all of the following qualifications:

(1) He or she must be at least 21 years of age.

(2) He or she must be a citizen of the United States.

(3) He or she must hold a current certification from the International Society of Arboriculture or hold a college degree from an accredited school of forestry approved by the Department.

(4) He or she must meet all other requirements deemed necessary by the Department.

(c) Licensure may be granted in an entity's name to an entity applicant that meets all of the following qualifications:

(1) The entity must designate a qualifying party who:

(A) possesses a valid individual license under this Act;

(B) is legally qualified to act for the entity in all matters connected with the practice of the tree expert profession; and

(C) is directly responsible for contracts or the provision of diagnostic services.

(2) The entity must be in compliance with any statutory requirements pertaining to such legal entity.

No individual licensee may engage in the practices of a tree expert as an employee or officer or serve as a qualifying party of more than one entity licensee during any one period of time.

(d) All applicants for licensure under this Act must provide the Department with proof of compliance with the applicable regulations set forth by the Occupational Safety and Health Administration (OSHA), the American National Standards Institute (ANSI), and the Animal and Plant Health Inspection Service (APHIS) and proof that the applicant has obtained Workers' Compensation insurance covering the applicant's employees or is approved as a self-insurer of Workers' Compensation in accordance with Illinois law. Any applicant who engages in the application of pesticides as it relates to the practice of the tree expert profession must provide proof to the Department of possessing a valid applicator license under the Illinois Pesticide Act.

(e) The Department may establish further requirements for licensure by rule.

Section 30. Non-resident applicants; foreign entities. Each non-resident applicant for an original license or a renewal license, except a foreign corporation, shall file an irrevocable consent that actions against the applicant may be filed in any appropriate court of any county or municipality of this State in which the plaintiff resides or in which some part of the transaction occurred, out of which the alleged cause of action arose and that process in any action may be served on the applicant by leaving 2 copies of the process with the Director. Such consent shall stipulate and agree that service of process shall be taken and held to be valid and binding for all purposes. The Director shall send one copy of the process to the applicant at the non-resident licensee's address of record by registered mail.

No foreign corporation shall receive a license under this Act until it has been authorized to do business in this State by the Director of State.

Section 35. Current address. Every licensee under this Act must maintain a current address with the Department. It shall be the responsibility of the licensee to notify the Department in writing of any change of address.

Section 40. Display. Each person licensed under this Act shall affix the license number of his or her license to all of his or her contracts and bids and shall affix the license number and the licensee's name, as it appears on the license, on all commercial vehicles used as part of his or her business as a tree expert. A license issued under this Act must be displayed in a conspicuous place in the licensee's principal office, place of business, or place of employment.

Section 45. Powers and duties of the Department.

(a) The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for the administration of licensing Acts and shall exercise such other powers and duties vested in it by this Act.

(b) The Department shall adopt rules necessary for the administration and enforcement of this Act, including rules concerning standards and criteria for licensure and for the payment of applicable fees. The Department must consult the Board concerning these rules. Notice of proposed rulemaking shall be transmitted to the Board and the Department shall review the Board's response and any recommendations made therein. The Department shall notify the Board in writing of the explanation for any deviations from the Board's recommendations and response.

(c) The Department may, at any time, seek the advice and the expert knowledge of the Board on any matter relating to the administration of this Act.

(d) The Department must prescribe forms required for the administration of this Act.

(e) The Department has the authority and power to investigate any and all unlicensed activities.

Section 50. Tree Expert Licensing Board.

(a) There is created the Tree Expert Licensing Board, which shall be appointed by the Director and comprised of persons who are residents of this State and who shall serve in an advisory capacity to the Director. The Board shall consist of 5 members, 2 of whom shall be commercial tree experts or arborists who have been engaged in practice as tree experts or arborists for for at least 10 years, one of whom shall be a plant pathologist, one of whom shall be an entomologist, and one of whom shall be a representative of a State or municipal forestry or park department. All members shall be licensed under this Act, except that those members initially appointed shall meet the requirements for licensure and obtain an individual tree expert license within 12 months after the adoption of final administrative rules under this Act.

(b) Members of the Board shall serve 4-year terms and until their successors are appointed and qualified, except that of the members of the Board first appointed one commercial tree expert or arborist member shall be appointed to serve for 2 years, one commercial tree expert or arborist member shall be appointed to serve for one year, the plant pathologist member shall serve for 3 years, the entomologist member shall serve for 4 years, and the member who is a representative of a State or municipal forestry or park department shall be appointed to serve for 5 years. No member may serve more than 2 complete 4-year terms.

(c) Members of the Board shall be immune from suit in any action based on any disciplinary proceedings or other acts performed in good faith as members of the Board, unless the conduct that gave rise to the suit was willful or wanton misconduct.

(d) If a vacancy on the Board occurs for any reason resulting in an unexpired term, within 90 days after the vacancy first occurs, the Director shall fill the vacancy in like manner for the unexpired balance of the term only. The Board shall meet annually to elect one member as chairperson and one member as vice-chairperson from their number. No officer may be elected more than 2 times in succession to the same office.

(e) Board members shall receive reimbursement for actual, necessary, and authorized expenses incurred in attending the meetings of the Board.

Section 55. Renewal; restoration; military service.

(a) Licenses issued under this Act must be renewed on an annual basis and upon the payment of a $50 renewal fee. All other renewal requirements shall be set by the Department by rule.

(b) Any person who has permitted his or her license to expire may have his or her license restored by applying to the Department, filing proof acceptable to the Department of his or her fitness to have the license restored, which may include sworn evidence certifying to active practice in another jurisdiction satisfactory to the Department, and paying the required restoration fee. If the person has not maintained an active practice in another jurisdiction satisfactory to the Department, the Board shall determine, by an evaluation program established by rule, the person's fitness to resume active status.

(c) Any person whose license has expired while he or she has been engaged (i) in federal service on active duty with the Armed Forces of the United States or the State Militia called into service or training or (ii) in training or education under the supervision of the United States preliminary to induction into the military service, may have his or her license renewed or restored without paying any lapsed renewal fees if, within 2 years after termination of service, training, or education, other than by dishonorable discharge, he or she furnishes the Department with satisfactory evidence to the effect that he or she has been so engaged and that the service, training, or education has been so terminated.

Section 60. Inactive status.

(a) Any tree expert who notifies the Department in writing on forms prescribed by the Department may elect to place his or her license on inactive status and shall be excused from payment of renewal fees until he or she notifies the Department in writing of his or her desire to resume active status.

(b) Any person whose license has been expired for more than 3 years may have his or her license restored by making application to the Department and filing proof acceptable to the Department of his or her fitness to have his or her license restored, including evidence certifying to active practice in another jurisdiction, and by paying the required restoration fee.

(c) Any tree expert whose license is on inactive status, has been suspended or revoked, or has expired may not represent himself or herself to be a tree expert or use the title "licensed tree expert" or any other title that includes the words "tree expert".

Section 65. Fees; disposition of funds.

(a) The Department shall establish by rule a schedule of fees for the administration and maintenance of this Act. Such fees shall be nonrefundable.

(b) All of the fees and fines collected under this Act shall be deposited into the Tree Expert Licensing Fund, which is hereby created as a special fund in the State treasury. The moneys deposited into the Tree Expert Licensing Fund shall be used by the Department, as appropriate, for the ordinary and contingent expenses of the Department. Moneys in the Tree Expert Licensing Fund may be invested and reinvested, with all earnings received from these investments being deposited into that Fund and used for the same purposes as the fees and fines deposited in that Fund.

Section 70. Roster. The Department shall maintain a roster of the names and addresses of all licensees under this Act. This roster shall be made available upon written request and payment of the required fee.

Section 75. Advertising. Any person licensed under this Act may advertise the availability of tree expert services in the public media or on the premises where such professional services are rendered, provided that such advertising is truthful and not misleading.

Section 80. Maintenance of action of counterclaim. No action or counterclaim shall be maintained by any person in any court in this State with respect to any agreement or work, labor, or materials for which a license is required by this Act or to recover the agreed-upon price or any compensation under any such agreement or for any such work, labor, or materials for which a license is required by this Act without alleging and proving that, such person was in possession of a valid license under this Act at the time of making the agreement or of supplying the labor, work, or materials

Section 85. Injunction; criminal penalty; cease and desist order.

(a) If any person violates the provisions of this Act, the Director may, in the name of the People of the State of Illinois and through the Attorney General or the State's Attorney of any county in which the action is brought, petition for an order enjoining such violation and for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin such violation. If it is established that such person has violated or is violating the injunction, the Court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) If any person holds himself or herself out as a "tree expert" without being licensed under the provisions of this Act, then any licensed tree expert, interested party, or person injured thereby may, in addition to the Director, petition for relief as provided in subsection (a) of this Section.

(c) Whoever holds himself or herself out as a "tree expert" in this State without being licensed for that purpose is guilty of a Class B misdemeanor, if an individual, and a petty offense, if an entity, and subject to fines of $100 for a first offense, $250 for a second offense, and $500 for a third or subsequent offense.

(d) Whenever, in the opinion of the Department, a person violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person. The rule shall clearly set forth the grounds relied upon by the Department and shall allow the person at least 7 days after the date of the rule to file an answer that is satisfactory to the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued.

Section 90. Disciplinary grounds.

(a) The Department may refuse to issue, renew, or may revoke, suspend, place on probation, reprimand, or take other disciplinary action as the Department considers appropriate, including the issuance of fines not to exceed $10,000 for each violation, with regard to any license for any one or more of the following causes:

(1) Violation of this Act or any rule adopted under this Act.

(2) Conviction of any crime under the laws of an U.S. jurisdiction that is a felony or a misdemeanor an essential element of which is dishonesty or that directly relates to the practice of the profession.

(3) Making any misrepresentation for the purpose of obtaining a license.

(4) Professional incompetence or gross negligence in the practice of the tree expert profession.

(5) Gross malpractice, prima facie evidence of which may be a conviction or judgment of malpractice in any court of competent jurisdiction.

(6) Aiding or assisting another person in violating any provision of this Act or any rule adopted under this Act.

(7) Failing, within 60 days, to provide information in response to a written request made by the Department that has been sent by certified or licensed mail to the licensee's last known address.

(8) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(9) Habitual or excessive use of or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to practice with reasonable judgment, skill, or safety.

(10) Discipline by another U.S. jurisdiction or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(11) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for any professional service not actually rendered.

(12) A finding by the Department that a licensee, after having his or her license placed on probationary status, has violated the terms of probation.

(13) Conviction by any court of competent jurisdiction, either within or without this State, of any violation of any law governing the practice of building contracting if the Department determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust.

(14) A finding that licensure has been applied for or obtained by fraudulent means.

(15) Practicing, attempting to practice, or advertising under a name other than the full name as shown on the license or any other legally authorized name.

(16) Gross and willful overcharging for professional services, including filing false statements for collection of fees or moneys for which services are not rendered.

(17) Failure to file a tax return or to pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

(18) Failure to continue to meet the requirements of this Act.

(19) Physical or mental disability, including deterioration through the aging process or loss of abilities and skills, that result in an inability to practice the profession with reasonable judgment, skill, or safety.

(20) Material misstatement in furnishing information to the Department or to any other State agency.

(21) Advertising in any manner that is false, misleading, or deceptive.

(22) The determination by a court that a licensee is subject to involuntary admission or judicial admission as provided in the Mental Health and Developmental Disabilities Code. Such determination shall result in an automatic suspension of a licensee's license. The suspension shall end upon a finding by a court that the licensee is no longer subject to involuntary admission or judicial admission, the issuance of an order so finding and discharging the patient, and the recommendation of the Board to the Director that the licensee be allowed to resume practice within the profession.

(b) The Department shall deny the issuance or renewal of any license under this Act to any person who has defaulted on an educational loan guaranteed by the Illinois Student Assistance Commission; however, the Department may issue a license or renewal if the person in default has established a satisfactory repayment record, as determined by the Illinois Student Assistance Commission.

Section 95. Investigation; notice of hearing. The Department may investigate the actions or qualifications of any applicant or person holding or claiming to hold a license. The Department shall, before suspending or revoking, placing on probation, reprimanding, or taking any other disciplinary action under Section 90 of this Act, at least 30 days before the date set for the hearing, notify the applicant or licensee in writing of the nature of the charges and that a hearing will be held on the date designated. The written notice may be served by personal delivery or certified or licensed mail to the applicant or licensee at the address of his or her last notification to the Department or, if a non-resident licensee, in the manner set forth in Section 30 of this Act. The Department shall direct the applicant or licensee to file a written answer with the Department, under oath, within 20 days after the service of the notice, and inform the person that if he or she fails to file an answer, his or her license may be revoked, suspended, placed on probation, reprimanded, or the Department may take any other additional disciplinary action, including the issuance of fines not to exceed $1,000 for each violation, as the Department may consider necessary, without a hearing. At the time and place fixed in the notice, the Board shall proceed to hear the charges and the parties or their counsel. All parties shall be afforded an opportunity to present any statements, testimony, evidence, and arguments as may be pertinent to the charges or to their defense. The Board may continue the hearing from time to time.

Section 100. Record of proceedings; transcript. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case involving the refusal to issue, renew, or restore a license of licensure or the discipline of a licensee. The notice of hearing, complaint, and all other documents in the nature of pleadings and written motions filed in the proceedings, the transcript of testimony, the report of the Board, and the orders of the Department shall be the record of the proceedings.

Section 105. Subpoenas; depositions; oaths. The Department may subpoena and bring before it any person and take testimony, either orally, by deposition, or both, with the same fees and mileage and in the same manner as prescribed in civil cases in circuit courts of this State. The Director, the designated hearing officer, and every member of the Board has the power to administer oaths to witnesses at any hearing which the Department is authorized to conduct, and any other oaths authorized in any Act administered by the Department.

Section 110. Compelling testimony. Any court, upon the application of the Department, designated hearing officer, or the applicant or licensee against whom proceedings under Section 90 of this Act are pending, may enter an order requiring the attendance of witnesses and their testimony and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.

Section 115. Findings and recommendations. At the conclusion of a hearing, the Board shall present to the Director a written report of its findings of fact, conclusions of law, and recommendations. The report shall contain a finding as to whether the licensee violated this Act or failed to comply with the conditions required in this Act. The Board shall specify the nature of the violation or failure to comply and shall make its recommendations to the Director.

The report of findings of fact, conclusions of law, and recommendations of the Board shall be the basis for the Department's order for refusal or for the granting of the license of licensure. If the Director disagrees with the recommendations of the Board, the Director may issue an order in contravention of the Board recommendations. The Director shall provide a written report to the Board on any disagreement and shall specify the reasons for the action in the final order. These findings are not admissible in evidence against the person in a criminal prosecution for violation of this Act, but the hearing and findings shall not serve as a bar to criminal prosecution for violation of this Act.

Section 120. Board; rehearing. At the conclusion of a hearing, a copy of the Board's report shall be served upon the accused person, either personally or as provided in this Act for the service of the notice. Within 20 days after such service, the applicant or licensee may present to the Department a motion in writing for a rehearing which shall specify the particular grounds for rehearing. If no motion for a rehearing is filed, then upon the expiration of the time specified for filing such a motion or if a motion for rehearing is denied, then upon the denial, the Director may enter any order in accordance with recommendations of the Board, except as otherwise provided in this Act. If the applicant or licensee requests and pays for a transcript of the record within the time for filing a motion for rehearing, the 20-day period within which a motion may be filed shall commence upon the delivery of the transcript to the applicant or licensee.

Whenever the Director is not satisfied that substantial justice has been done, he or she may order a rehearing by the same or another special board. At the expiration of the time specified for filing a motion for a rehearing the Director has the right to take the action recommended by the Board.

Section 125. Appointment of a hearing officer. The Director has the authority to appoint any attorney licensed to practice law in the State of Illinois to serve as the hearing officer in any action for refusal to issue or renew a license of licensure or to discipline a licensee. The Director shall notify the Board of any such appointment. The hearing officer has full authority to conduct the hearing. At least one member of the Board shall attend each hearing. The hearing officer shall report his or her findings of fact, conclusions of law, and recommendations to the Board and the Director. The Board has 60 days after receipt of the report to review it and present its findings of fact, conclusions of law, and recommendations to the Director. If the Board fails to present its report within the 60-day period, the Director shall issue an order based on the report of the hearing officer. If the Director disagrees with the recommendation of the Board or hearing officer, the Director may issue an order in contravention of the recommendation. The Director shall promptly provide a written explanation to the Board on any disagreement.

Section 130. Order of certified copy; prima facie proof.

An order or a certified copy thereof, over the seal of the Department and purporting to be signed by the Director, shall be prima facie proof that:

(1) the signature is the genuine signature of the Director;

(2) the Director is duly appointed and qualified; and

(3) the Board and the members thereof are qualified to act.

Section 135. Restoration of suspended or revoked license of licensure. At any time after the suspension or revocation of any license of licensure, the Department may restore it to the licensee upon the written recommendation of the Board, unless after an investigation and hearing, the Board determines that restoration is not in the public interest.

Section 140. Surrender of license of licensure. Upon the revocation or suspension of any license of licensure, the licensee shall immediately surrender his or her license to the Department. If the licensee fails to do so, the Department has the right to seize the license.

Section 145. Summary suspension of a license of licensure. The Director may summarily suspend a license of licensure issued under this Act without a hearing, simultaneously with the institution of proceedings for a hearing provided for in this Act, if the Director finds that evidence in the possession of the Director indicates that the continuation in practice by the licensee would constitute an imminent danger to the public. In the event that the Director temporarily suspends the license of a licensee without a hearing, a hearing must be held within 30 days after such suspension has occurred.

Section 150. Administrative Review Law; venue.

(a) All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

(b) Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides, but if the party is not a resident of this State, the venue shall be in Sangamon County.

Section 155. Certification of record; costs. The Department shall not be required to certify any record to the court or file an answer in court or to otherwise appear in any court in a judicial review proceeding, unless there is filed in the court with the complaint a receipt from the Department acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file such receipt in court shall be grounds for dismissal of the action.

Section 160. Administrative Procedure Act. The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated herein as if all of the provisions of that Act were included in this Act, except that the provision of subsection (d) of Section 10-65 of the Illinois Administrative Procedure Act that provides that at hearings the licensee has the right to show compliance with all lawful requirements for retention, continuation, or renewal of the license is specifically excluded. For the purposes of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is deemed sufficient when mailed to the last known address of a party.

Section 165. Home rule. It is declared to be the public policy of this State, pursuant to paragraphs (h) of Section 6 of Article VII of the Illinois Constitution of 1970, that any power or function set forth in this Act to be exercised by the State is an exclusive State power or function.

Section 900. The Regulatory Sunset Act is amended by adding Section 4.29 as follows:

(5 ILCS 80/4.29 new)

Sec. 4.29. Act repealed on January 1, 2019. The following Act is repealed on January 1, 2019:

The Tree Expert Licensing Act.

Section 905. The State Finance Act is amended by adding Section 5.708 as follows:

(30 ILCS 105/5.708 new)

Sec. 5.708. The Tree Expert Licensing Fund.

Section 999. Effective date. This Act takes effect upon becoming law.