Positive Liberty

I’ll be in San Francisco tomorrow morning for a hearing in Merrifield v. Lockyer, a lawsuit challenging the constitutionality of a California occupational licensing requirement. The law in question requires my client, Alan Merrifield, to get a Branch 2 Structural Pest Control Operator’s license if he wants to install spikes on buildings to keep pigeons away. The Branch 2 license, however, is a license for handling pesticides—something he does not do. The licensing exam is overwhelmingly devoted to pesticide usage and the treatment of bugs—neither of which have anything to do with Mr. Merrifield’s business. And to even take the exam, a person must first spend two years in the employ of someone who already has a license.

In other words, the state wants Mr. Merrifield, at the age of 66, to close up his business for two years and become an apprentice to learn to use pesticides, to pass an examination—even though he does not use pesticides.

Worse, the licensing requirement (Cal. Bus. & Prof. Code § 8555(g)) only applies to people who treat pigeons, rats, or mice. So if you put spikes on a building to keep seagulls away, you don’t need a license. But if you put the same spikes on the same building to keep pigeons away, you do.

In deposition, I asked the state’s expert witness if this was rational. Here’s the exchange that took place:

Me: Does it protect the public health and safety to require a person who does pigeon exclusion work without pesticides in structures to have a Branch 2 license?

The witness: Absolutely.

Me: Does it protect the public health and safety not to require the same license for seagull exclusion work?

The witness: No, it does not.

Me: Would you call this irrational?

The witness: Yes, I would.

The state’s attorney called a halt at that point, as you can probably imagine. But the witness went on to say twice more that the licensing requirement was positively irrational, and was designed solely to protect people who already have licenses from competition from people like Mr. Merrifield. The witness should know; he testified that it was his idea in the first place: “[O]ur position as the Pest Control Operators of California and my understanding of the Structural Pest Control Board’s position,” he said,

was that the trapping and excluding of all these birds really should be [sic] a structural pest control license. I said, well, where could we find a middle ground here? I said, well, what are the primary vertebrate pests and primary bird pests in structures? And what are some that are not of the greatest importance? And arguably rats, mice and pigeons are going to—you know, it would be a larger percentage of the…[pest control business]…. I said, Well, you guys keep the pigeons. Will that keep you happy? So you will not oppose our bill. Keep rats, mice, and pigeons, and we’ll take these others…

Me: And you said earlier that this threatens the consumer?

The witness: Certainly. Certainly.

Here is an example, therefore, of an occupational licensing requirement that exists solely to prevent competition. It exists not to protect the public—indeed, the state’s expert says it positively harms the public!—but solely to divvy up the market to protect a favored constituency. It fundamentally violates the rule that occupational licensing laws must have “‘a rational connection with the applicant’s fitness or capacity to practice’ the profession.” Lowe v. SEC, 472 U.S. 181, 228 (1985) (quoting Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239 (1957)).

Unfortunately, in spite of all of this, the District Court issued a tentative ruling against us a few weeks ago. So I’m hoping I can change the judge’s mind. Wish me luck!

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