Yes, but is it constitutional??? (Section 8555 revisited)

Business & Professions Code - Section 8555(g)

8555. This chapter does not apply to:
g) Persons engaged in the live capture and removal or exclusion of vertebrate pests, bees, or wasps from a structure without the use of pesticides, provided those persons maintain insurance coverage as described in Section 8692. "Vertebrate pests" include, but are not limited to, bats, raccoons, skunks, and squirrels, but do not include mice, rats, or pigeons. This section does not exempt a person from the provisions of Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code.

Constitutionality of State Wildlife Control Statute Questioned

As you know, the 1995 amendment to Business and Professions Code, Section 8555(g) inserted an exclusion of "pigeons, rats and mice" from the definition of "vertebrate pests" for which a Structural Pest Control License is not needed. Based on our discussion with legal counsel, we believe this exclusion is unconstitutional because:

(a) There is no rational basis for limiting rat, mice and pigeon exclusion activities to Structural Pest Control Operators when other rodent and bird exclusion work can be performed by Wildlife Control Operators, Animal Damage and Bird Control Contractors and others;

(b) There is no clear and present danger justifying the restriction of rat, mice and pigeon exclusion work to Structural Pest Control Operators when there are available Wildlife Control Operators, Animal Damage and Bird Control Contractors and others who have and can successfully exclude birds and rodents of any kind;

(c) The exclusion is overbroad in that it punishes protected conduct, in addition to acts beyond its purpose. Examples are excluding Wildlife Control Operators, Animal Damage and Bird Control Contractors, and others from general bird and rodent exclusion contracts due to the fact that there might be one or more rats, mice or pigeons involved, and by making non- contractor activities by homeowners and others subject to citation for lack of license in performing routine property repair/maintenance activities such as installing or replacing bird barriers or foundation vent screens on their own property. For all of these reasons, and more, we believe that the courts will find that Section 8555(g) is unconstitutional.

The rule is that a court generally only will consider the constitutionality of a statute at the request of:

(a) a person whose rights are affected by that statute, or who is a member of the class whose rights are being damaged by the statute's enforcement; or

(b) a state or local taxpayer challenging the constitutionality of a tax or expenditure of tax money. Any such challenge must be supported by a showing of actual or threatened injury arising from the existence/enforcement of the statute. In addition, the court must be presented with actual, specific facts demonstrating that there will be a tangible benefit from the court's intervention in the matter.

All of these grounds appear to be present here since (a) Wildlife Control Operators and Animal Damage and Bird Control Contractors certainly are damaged by being wrongfully prohibited from working in the lucrative rat, mice and pigeon exclusion market to the benefit of Structural PestControl Operators; and (b) Section 8555(g)'s limitation of rat, mice and pigeon exclusion contracts to the relatively small number of Structural Pest Control Operators ensures that such work on public buildings will be performed at the highest, rather than the lowest possible cost, thereby defeating the whole purpose of competitive bidding on public works and wasting taxpayer funds

We have requested legal counsel to prepare a constitutional challenge to Section 8555(g) based on the rejection of a bid for lack of a required, but unnecessary Structural Pest Control Operator's License and/or based on a taxpayer challenge to the wasteful use of public funds caused by the Section 8555(g) limitation of rats, mice and pigeon work on public buildings to Structural Pest Control Operators. We are prepared to file these constitutional challenges in Superior Court based on an appropriate set of facts at an appropriate time.

If you believe that you have sustained an actual or threatened injury caused by the Section 8555(g) restrictions and wish to join the constitutional challenge, please do not hesitate to contact the California NWCO Association's President by email at Merrifield@cnwcoa.org, or send relevant information to California NWCO Association, P.O. Box 90, Burlingame, CA 94011.


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