Advocacy Update

OhioPLANT, through its member the Ohio Pest Management Association, learned on September 14th that the Bexley City Council was considering an ordinance, 28-23, that would have required commercial pesticide applicators conducting a treatment for mosquitoes, and for landscape professionals, to first be registered with the city before performing work.

“Mosquito Control Contractor”, as used in the ordinance, would be defined as “any person or firm engaged in the lawful application of airborn [sic] pesticides intended for mosquito control.”

Additionally, the ordinance would have required a “mosquito control contractor” to provide 24 hours advance notice in writing to all adjacent property owners prior to treating for mosquitoes at a property. The written notice could be an email if the adjacent property owner agreed to email notification. The ordinance also would have required the written notice to contain an estimate time of application, the chemicals being applied, the method of application, and any other information the “contractor” deemed relevant. The penalty for the violation was an undetermined amount.

Proposed ordinance 28-23 also defined “Tree Lawn Landscape Professional” as “any person or firm engaged in work in the Tree Lawn that would include any of the following: the planting of new material; the placement of mulch or other similar landscape material; the installation, replacement, or repair of hardscape material.” Additionally, “tree lawn” was defined as the “section of the City [sic] right-of-way between the sidewalk and the curb.” The proposal added to the city’s existing section on trees and shrubs in public places that , “no person shall place mulch or soil above ground level within two inches from the trunk of the tree, and no more than 2” deep above the ground level within 3’ of the outside of the trunk of any tree, shrub or evergreen in any public street, park or public place.”

Per the language, prior to pursuing criminal charges for violating the placement or mulch or soil in such a manner (yes, you read that correctly, criminal charges) the city could do the following:

1. for an initial violation committed by a property owner, provide a written notice of the violation to the property owner and remove the excess mulch or soil.

2. for a subsequent violation committed by the same property owner at the same property, provide a written notice of the violation to the property owner and remove the excess mulch or soil and issue a $20 civil penalty for each area around a tree, shrub, or evergreen that requires correction.

3. for any violation by a Tree Lawn Landscape Professional, provide a written notice of the violation to the Tree Lawn Landscape Professional and the property owner and remove the excess mulch or soil and issue a $20 civil penalty to the Tree Lawn Landscape Professional for each area around a tree, shrub, or evergreen that requires correction.

4. or subsequent violations to those violations in 2 and 3, a misdemeanor of the fourth degree and a fine of not more than $250.00 or imprisonment for not more than 30 days, or both for each offense in addition to any required restitution for damages incurred by the city or any special assessments levied. Each day during or on which a violation or noncompliance occurs or continues is considered a separate offense. A separate offense shall be deemed committed each day during or on which a violation or noncompliance occurs or continues. The city can also seek injunctive relief.

Besides the obvious question of “why?”, the mulch language raised questions such as what if the landscaper is not aware the tree or shrub is on the city’s easement? What happens if someone later adds mulch or soil to the landscaper’s work? Shouldn’t the landscaper have the right to cure the offense without the concurrent levying of a fine? Isn’t the possible imposition of a criminal charge for a violation of a mulch/soil ordinance grossly ridiculous?

As OhioPLANT’s lobbyist, I testified at the September 26 Bexley City Council meeting for the second reading of the ordinance. Unfortunately, and unbeknownst to OhioPLANT and OGIA, the Bexley City Council had separated the tree lawn issue and the mosquito control issue into two separate ordinances at the September 12th hearing (two days before OhioPLANT was made aware of the ordinance) and passed the tree lawn ordinance as 28-23. Unlike commercial applicators, there is no comprehensive state licensure scheme for applying mulch and soils so the legal argument that the tree lawn provision was preempted by state law was not available.

Shortly before my testimony I was informed that the tree lawn provision had been separated and passed on its own at the prior hearing and so my testimony was limited to the revised mosquito control ordinance, 33-23. I explained that the proposed mosquito ordinance was preempted by state laws for commercial pesticide applicators and therefore would be invalid if passed. Ultimately, at the third hearing on October 10, the city attorney agreed that the state commercial pesticide laws precluded the city from moving forward with its mosquito control ordinance and the city council withdrew it.

What is left is an ambiguous and overly strict city law regarding mulch and soil application. OGIA, with its membership in OhioPLANT, will attempt to have the Bexley City Council repeal the mulch ordinance or at least scale it back. Until then, if you provide landscaping service in Bexley, watch your mulch.