Competence     •    Integrity     •     Service

IN MY OPINION

"Section 8555(g) Got Thrown Out"

At its regular meeting, held on July 14, 2016, the California Structural Pest Control Board was informed by its Executive Director Susan Saylor that the legislature had "thrown out" the Board's proposed revision of section 8555(g) of the California Business and Professions Code of Regulations that the Committee had taken up in February of this year.

Director Saylor told the Board members that the revised Section 8555(g) had been included in omnibus bill SB-1039 authored by Senator Jerry Hill of San Mateo.  Saylor stated that two other revised code sections had been approved by the Senate Committee and were now proceeding in the California Assembly. Saylor briefly described why each of these two regulations had been revised. However, she failed to identify section 8555(g), did not describe how and why it had been amended, and did not even offer a hint as to why the California Senate had deleted it from SB-1039 without according it a public hearing. Director Saylor indicated that she might            re-submit the revised code section with a new sponsor at a later date.

What's strange about this particular scenario is that absolutely no elaboration was offered by Saylor and that the Board did not ask her a single question nor offer a single comment regarding the action taken by the Senate Committee on a regulation that the 9th U.S. Circuit Court of Appeals had found to be unconstitutional eight years earlier. 

The Board's Legal Counsel sat right next to Director Saylor at this meeting, but he raised no questions and made no comments as to why the proposed bill, supported by the Department of Consumer Affairs, had been thrown out by Senator Hill.

The Pest Control Operators of California (PCOC) representative on the panel likewise had nothing to say about the Legislature's rejection of the section 8555 revision even though this was the version the PCOC had advocated to the Board all along.

So what can explain this apparent lack of interest in the Senate's rejection of the Board's proposed regulatory change? The answer now seems abundantly clear. The SPCB Executive Director had the revised section 8555 tacked onto the end of a lengthy omnibus bill hoping that the legislature would approve the proposed revision without any discussion. Saylor's ruse had clearly failed.

When Senator Hill discovered the Board's nefarious scheme to create a state sanctioned economic monopoly, and eliminate all competition for Branch 2 vertebrate pest control work, he deleted section 8555(g) from his omnibus bill SB-1039 before it was presented in the Committee and exposed in a public meeting.

We don't know what the Senate's Business, Professions and Economic Development Committee Chairman told Director Saylor about her failed regulatory revision, but whatever it was, she did not seem willing to reveal those reasons to a regulatory board whose members are all included in the Permanent Injunction enjoining them from enforcing this unconstitutional law.

The Board's official minutes of previous meetings reveal their plan to get the legislature to revoke the underlying statute (AB-568) that it had unanimously passed in 1995. This bill, signed into law by Governor Pete Wilson, established an exemption to an existing Branch 2 Structural Pest Control licensing requirement for California Wildlife Control Operators and others attempting to control vertebrate pests in structures without the use of pesticides.

Had the Board's plan be successful, California Wildlife Control Operators would have lost the state's legal authorization to physically exclude rats and mice from homes, to prevent pigeons and other nuisance birds from contaminating buildings, to trap or exclude raccoons, skunks, squirrels, bats and other vertebrate pests animals from inside homes and businesses, and to offer and/or accept any work involving the control of vertebrate pests without first possessing a Branch 2 pesticide applicators' license.

The revised law would have created a state-sanctioned monopoly providing economic protection for all Branch 2 licensees.  All competition from existing and future Wildlife Control Operators would have been disallowed.  The Board's stated intention was to make it as though the Merrrifield v. Lockyer lawsuit had never happened.

Unfortunately for them however, this lawsuit did happen and the Structural Pest Control Board defendants lost that case and section 8555(g) was found by the 9th Circuit Court in 2008 to be unconstitutional. Subsequently, the U.S. District Court in San Francisco permanently enjoined the Structural Pest Control Board defendants, their employees, servants, agents and associates from ever attempting to enforce that law again.

Unless these defendants want to challenge the Court's ruling, face possible contempt of court charges and/or defend against additional federal civil rights and antitrust violations, they will do the right thing and simply obey the law.