Varanelli v. Structural Pest Control Board

• Citation: 1 Cal.App.3d 217,81 Cal.Rptr. 492
• Court: California Court of Appeals
• Decision Date: 28 October 1969
• Parties: Michael VERANELLI et al., Plaintiffs and Appellants, v. STRUCTURAL PEST CONTROL BOARD of the State of California et al., Defendants and Respondents. Civ. 34063.

Page 492

81 Cal.Rptr. 492

1 Cal.App.3d 217

Michael VERANELLI et al., Plaintiffs and Appellants, v. STRUCTURAL PEST CONTROL BOARD of the State of California et al., Defendants and Respondents.

Civ. 34063.

Court of Appeal, Second District, Division 2, California.

Oct. 28, 1969.

Hearing Denied Dec. 17, 1969.

Samuel Duskin and Alan H. Wiener, Los Angeles, for appellants.

Thomas C. Lynch, Atty. Gen., Henry G. Ullerich, Deputy Atty. Gen., for respondents.

FLEMING, Associate Justice.

Does California's Structural Pest Control Act (Bus. & Prof.Code, §§ 8500--8677) apply to door-to-door solicitors of free structural pest control inspections, and, if it does, it such application constitutional? The trial court answered both questions in the affirmative and concluded that the Act covers the solicitations being carried on by plaintiffs, that such coverage is constitutional, and that plaintiffs are not entitled to conduct door-to-door solicitations for free pest control inspections without securing a license under the Act.

Appellants argue: (1) the statute does not cover their activities, (2) but if it does, the statute bears no reasonable relationship to the public interest and is therefore unconstitutional.

I

The statute defines structural pest control to include 'soliciting * * * of an inspection or inspections for the purpose of identifying * * * infestations * * *' (§ 8505.) Article 3 of the Structural Pest Control Act makes it unlawful for any unlicensed person to engage in the business of structural pest control. (§ 8550.)

A qualified person may obtain a license as a structural pest control operator or as a structural pest control field representative. An applicant for either category of license must possess good character (§ 8568); demonstrate, by examination, knowledge of pertinent laws, of the dangerous chemicals used in pest control, and of the theory and practice of pest control (§§ 8565, 8566); and establish the requisite training and experience of two years for operators and six months for field representatives. (§§ 8562, 8564.)

There is no general exemption in the Act for all employees of a licensed operator. But the Legislature has authorized unlicensed employees to perform acts under specified conditions which would otherwise require a license. Section 8506 permits on operator to use unlicensed individuals 'on service contracts already established' but such individuals, i.e., crewmen, must work on pest control jobs under the supervision of an operator or field representative. (§ 8512.) Furthermore, only after an inspection by a licensed operator or field representative may an unlicensed employee submit bids or sign contracts on behalf of a licensed corporation, partnership, or individual. (§ 8515.)

It is significant that the legislative definitions of structural pest control operator and structural pest control field representative permit the licensee to 'secure structural pest control work.' (§§ 8506, 8507.) The term 'secure' in sections 8506 and 8507 is used in addition to inspecting, bidding, or contracting in both sections and must mean the direct contacts with home owners prior to inspecting and bidding. Thus, by denying a general exemption for all employees, by granting authority to licensed individuals to 'secure work,' and by not granting authority to unlicensed employees to solicit or otherwise secure work, the clear implication, under the rule Expressio unius est exclusio alterius, is that unlicensed employees may not solicit or otherwise secure structural pest control work.

While the primary purpose of prohibiting solicitation may have been to prevent persons who represent nonlicensees from doing anything that would bring pest control work to their principals, the Legislature may well have concluded from past selling practices in the structural pest control field that to protect the public only persons of established character and knowledge should be permitted to solicit or otherwise attempt to secure pest control work on behalf of licensed operators.

It is plain to us that the Act covers solicitations carried on in the manner described in the complaint by appellants. Whether such coverage is desirable or undesirable involves arguments on policy which must be addressed to the Legislature.

II

Appellants' second contention, that of unconstitutionality, involves the general question of regulation of door-to-door solicitation. On this point we find ourselves in complete agreement with the arguments presented in respondent's brief, and we hereby adopt them as the court's opinion on constitutionality:

Appellants argue it is an invalid exercise of the police power to require a person who limits his activities to door-to-door solicitation of free inspections by his employer to be licensed, either as a structural pest control operator or as a field representative. Appellants further assert that, as applied, the Act violates the Fourteenth Amendment guarantees of due process, equal protection, and free speech.

All presumptions favor the constitutionality of a statute enacted by the Legislature; all doubts are resolved in favor of and not against the validity of the statute. Before an act of a coordinate branch of the government can be declared invalid for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable. (Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 636, 91 P.2d 577.)

The California Supreme Court described economic due process in Wilke and Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control, 65 Cal.2d 349, 358--359, 55 Cal.Rptr. 23, 30, 420 P.2d 735, 742, as follows:

'Plaintiff first contends that these provisions (minimum retail liquor prices) are unconstitutional because they exceed the police power of the state. In passing upon the validity of that contention, we exercise an extraordinary power over a coordinate branch of government and perform a correspondingly narrow function: we simply determine whether the statute reasonably relates to a legitimate governmental purpose. In so doing, we find the requisite relationship in the absence of an unquestionable contrary showing. (Citations.) We must not confuse reasonableness in this context with wisdom. "The doctrine * * * that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely * * * has long since been discarded. * * *" (Citations.)'

Thus, '* * * judicial examination of a statute under economic due process attack is completed when any fact or facts appear which the Legislature might rationally have accepted as the basis for a finding of public interest. * * * In the pursuit of acceptable legislative hypotheses, judges have not hesitated to draw upon their own experience and upon abstract studies in the particular regulatory field.' (Doyle v. Board of Barber Examiners, 219 Cal.App.2d 504, 514, 515, 33 Cal.Rptr. 349, 356.)

Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, is pertinent. A municipal ordinance made it unlawful to engage in door-to-door soliciting. The criminal conviction of the solicitor was upheld despite contentions that the ordinance constituted a taking of property without due process, abridged freedom of speech, and unlawfully burdened interstate commerce. On the due process argument the court's opinion states:

'The Constitution's protection of property rights does not make a state or a city impotent to guard its citizens against the annoyances of life because the regulation may restrict the manner of doing a legitimate business. The question of a man's right to carry on with propriety a standard method of selling is presented here in its most appealing form--an assertion by a door-to-door solicitor that the Due Process Clause of the Fourteenth Amendment does not permit a state or its subdivisions to deprive a specialist in door-to-door selling of his means of livelihood. But putting aside the argument that after all it is the commerce, i.e., sales of periodicals, and not the methods, that is petitioner's business, we think that even a legitimate occupation may be restricted or prohibited in the public interest. See the dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 303, 52 S.Ct. 371, 375, 383, 76 L.Ed. 747. The problem is legislative where there are reasonable bases for legislative action. We hold that this ordinance is not invalid under the Due Process Clause of the Fourteenth Amendment.' (341 U.S. at 632--633, 71 S.Ct. at 927.)

Cases cited by appellant, Whitcomb v. Emerson, 46 Cal.App.2d 263, 115 P.2d 892, and Skaggs v. City of Oakland, 6 Cal.2d 222, 57 P.2d 478, were decided in an era less receptive to economic legislation. In Whitcomb, the court found that it was unreasonable and arbitrary for a person working only as a masseuse to be required to pass an examination in the other aspects of cosmetology. The court in Whitcomb held that the case before it involved the regulation of the occupation of a masseuse. The court said, in effect, that the Legislature should have established a special license for 'facial massage.' In Skaggs, the court held that a city could not prohibit bakery trucks from using the streets at night and on holidays.

The current doctrine of judicial review of the reasonableness of regulatory legislation is that judicial examination of a statute under economic due process attack is completed when any fact or facts appear, or may be hypothesized, which the Legislature might rationally have accepted as the basis for a finding of public interest. (See Doyle v. Board of Barber Examiners, 219 Cal.App.2d, Supra, at 505--515, 33 Cal.Rptr. 349.)

In Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632, the court upheld a South Carolina statute characterized by the court as making illegal the sale of funeral insurance. The statute was held valid, despite a lower court finding that funeral...