CNWCOA - LAWSUIT FILED!!!

LAWSUIT FILED!!!

The California Nuisance Wildlife Control Operators Association (CNWCOA) has joined Urban Wildlife Management, Inc. and its President, Alan Merrifield in a civil rights lawsuit against the State of California. The complaint, filed in the Northern District of the U.S. District Court on February 6, 2004, asserts that the State employees violated the Plaintiffs' Constitutional rights guaranteed under the Due Process, Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment by enacting and/or subsequently enforcing an unlawful wildlife control statute.

This lawsuit, filed in behalf of Wildlife Control Operators and others, will raise important legal issues related to one's constitutional right to work, to earn a living, pursue a livelihood or to follow one's calling without arbitrary, irrational and capricious interference by the State.

It will also raise questions about a State's right to enact and enforce protectionistic and monopolistic laws under the guise of protecting public health and safety interests.

Finally, this "economic substantive due process" case will ask the court to re-examine the meaning of the Fourteenth Amendment's Privileges or Immunities Clause in light of the new facts and issue presented.

Merrifield, and the other Plaintiffs who filed the federal civil rights complaint, seek to challenge the constitutionality of Section 8555(g) of the California Business and Professions Code, which effectively prohibits and criminalizes any act to control rats, mice or pigeons in, on, or under any house, building or other structure when that control is performed by someone other than an Exterminator possessing a Branch 2 Structural Pest Control License.

The plaintiffs' response maintains that the Branch 2 licensing requirement is irrational, arbitrary and capricious and is based on no compelling public interest or clear and present danger and that the Branch 2 license requirement is nothing more than a protectionist economic measure meant to benefit a politically-favored class by restricting the freedom of others to compete.

Public Health professionals report that rats are responsible for spreading such diseases as leptospirosis, trichinosis, rickettsial diseases, plague, murine typhus fever, and rat bite fever and that mice are known to also infect people with the deadly Hanta Virus. Pigeons, moreover, have been associated with the spread of fifty seven (57) known diseases. Rats, mice and pigeons are also known to cause or contribute to fires and other serious damage in structures. How then can preventing Wildlife Control Operators from excluding these vermin from homes and other buildings further the public health and safety interests of California consumers?

Since Merrifield and the other Plaintiffs are "Wildlife Control Operators" (not "Structural Pest Control Operators"), they do not use poisons or other pesticides to control birds or other vertebrates in buildings. Instead, they rely on physical exclusion measures to prevent nuisance wildlife from getting in, on, or under buildings. If the animals are already inside the WCOs use humane physical measures to capture and remove them. Whenever possible, as with bats, WCOs construct one way doors that allow the animals to leave the building but prevent them from re-entering. WCOs also perform preventative or restorative animal damage control work in addition to attempting to control the nuisance wildlife.

The Legislature created the Structural Pest Control Board to regulate the application of hazardous pesticides in places where people live and work. The Department of Consumer Affairs, which oversees the SPCB, was created to protect California consumers against unscrupulous and incompetent providers of goods and services. These regulatory agencies were not created to protect the bottom line of Pest Control Companies by eliminating their competition or by sponsoring legislation to criminalize the non-pesticide control of nuisance wildlife. The Plaintiffs hope this case will serve to rectify these matters.

Plaintiffs charge the State, its Departments, and it regulatory employees, with conspiring to prevent Merrifield, Urban Wildlife Management, Inc., and others similarly situated, from pursuing their fundamental rights to life, liberty and property when they acted in concert to prevent Plaintiffs from submitting and/or winning bids for public works projects or barring them from attending bidders meetings, or when these Defendants threatened WCOs with fines, jail terms, loss of phone service and business closure for engaging in, or offering to engage in, non-pesticide control of rats, mice and/or pigeons.

The Defendants named in this lawsuit are: the Governor; the California Legislature; the Structural Pest Control Board; the Department of Pesticide Regulation; the Contractors State Licensing Board; the Department of General Services; the Department of Transportation; and various State employees who have been directly involved with the unlawful enactment and/or enforcement of the wildlife control statute being challenged.

Ironically, Merrifield is a state-licensed Contractor specializing in Animal Damage and Bird Control, he is a state-licensed Animal Trapper and he has operated a state-license Pest Control Business for many years. He is also a Nationally Certified Wildlife Control Professional and a Certified Installer of Bird Exclusion Products. Nevertheless, without having the Branch 2 license this Wildlife Control Operator faces an uncertain future when it comes to controlling rats, mice and pigeons in structures.

WILLIAM C. LAST, JR. (SBN 083588)
LAST & FAORO
120 North El Camino Real
San Mateo, CA 94401
Telephone: (650) 696-8350
Facsimile: (650) 696-8365

Attorneys for Plaintiffs ALAN MERRIFIELD, an individual
doing business as URBAN WILDLIFE MANAGEMENT;
URBAN WILDLIFE MANAGEMENT, INC., a California
Corporation individually and as successor in interest to
ALAN MERRIFIELD dba URBAN WILDLIFE
MANAGEMENT; and CALIFORNIA NUISANCE
WILDLIFE CONTROL OPERATORS ASSOCIATION,
a California non-profit corporation

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ALAN MERRIFIELD, an individual doing business as URBAN WILDLIFE MANAGEMENT; URBAN WILDLIFE MANAGEMENT, INC., a California corporation individually and as successor in interest to ALAN MERRIFIELD dba URBAN; CALIFORNIA NUISANCE WILDLIFE CONTROL OPERATORS ASSOCIATION, INC. a California corporation,

Plaintiffs,

ARNOLD SCHWARZENEGGER, Governor of the State of California; VALERIE BROWN, California Assemblywoman; KELLI OKUMA, Registrar of the California Structural Pest Control Board; MAUREEN SHARP, Deputy Registrar of the California Structural Pest Control Board;DENNIS PATZER, Chief Enforcement Officer of the California Structural Pest Control Board; PAUL HELLIKER, Director of Department of Pesticide Regulation; BEVERLY BROWN, Bid Protest Coordinator of the California Department of General Services; LYNN GARRETT, RESD Contract Analyst of the California Department of General Services; GRETCHEN A. BRIGAMAN, Protest Officer of the California Department of Transportation; STEPHEN SANDS, Registrar of the California Contractors State License Board and ROBERT LUCAS, Deputy Registrar of the California Contractors State License Board,

Defendants.

Case No. C 04-00498 MMC

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Click here for the full text of the lawsuit (in Microsoft Word forat.)

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