Judge James C. Chalfant, Case 21STCP03114 2022-08-25 Tentative Ruling

Frank A. Marshall and Stormies Pest Control v. California Structural Pest Control Board, Department of Consumer Affairs, 21STCP03114

Tentative decision on petition for writ of mandate: denied

Petitioners Frank A. Marshall (“Marshall”) and Stormies Pest Control (“Stormies”) apply for a writ of administrative mandamus setting aside the decision by Respondent California Structural Pest Control Board, Department of Consumer Affairs (“Board”) to revoke Marshall’s operating license (“License”) and Stormies’s registration certificate (“Certificate”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioners Marshall and Stormies filed the Petition on September 20, 2021, alleging a single cause of action for writ of administrative mandamus. The Petition alleges in pertinent part as follows.

At some point in late 2018, elderly homeowner S.S. sought pest control services due to flying insects in her home (“Thurman Property”). She contacted Petitioners, who informed her that she needed to fumigate the home for moths that were biting her. Later investigation revealed it was the Indian Meal Moth. Petitioners provided a single page “Contract Proposal” for fumigation to kill all pests for $1,850, as well as a business card with Marshall’s face and the word “STORMIES.”

Marshall contacted AAA Fume and Fidel Delgadillo (“Delgadillo”) to complete the fumigation of the Thurman Property for dry wood termites. AAA Fume and Delgadillo performed the testing and fumigation from December 31, 2018 through January 3, 2019, but they used a fumigant not effective against Indian Meal Moths. Because they did not secure the Thurman Property or place notices not to enter, S.S. reentered on January 3, 2019 before it was certified as safe to reenter. The fumigant made S.S. feel sick and taste something strange on her mouth, and she received bug bites through April 2019.

Separately, Marshall inspected property located at E. 126th Street in Los Angeles (“126th St. Property”) and found subterranean termites, dry wood termites, and cellulose debris. He contracted with AAA Fume again, but it used an incorrect dosage rate of the fumigant and did not provide information about the fumigation.

S.S. filed a complaint with the Los Angeles County Agricultural Commissioner's office (“County”), which forwarded the complaint to the Board on March 13, 2019. During the investigation, the Board learned about the 126th St. Property problem.

The Board held a hearing on the accusation against Marshall and Stormies. On July 12, 2021, the Board issued a decision that revoked Marshall’s License and Stormies’s Certificate. The decision also required Marshall to pay $36,023 in costs as a condition precedent to reinstatement and prohibited him from serving as a director or officer of any registered company. The decision asserted that the standard of proof is preponderance of the evidence, not the clear and convincing evidence standard.

Petitioners seek a writ of mandate compelling the Board to set aside the revocations of Marshall’s License and Stormies’s Certificate, the imposition of $36,023 in costs on Marshall, and the prohibition on Marshall from serving as a director or officer of any registered company.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767. The standard for the review of facts in Petitioners’ revocation is not at issue because Petitioners do not challenge the ALJ’s findings.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An abuse of discretion occurs when the wrong legal standard is applied. Edwards Wildman Palmer LLP v. Superior Court, (2014) 231 Cal.App.4th 1214, 1224. A claim that the agency’s procedure did not satisfy constitutional principles is a question of reviewed de novo. Tafti v.County of Tulare, (2011) 198 Cal.App.4^th 891, 896.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The qualifications for licensing as a pest control operator are that the person be at least 18years old, take and pass an examination, prove that he or she has satisfactory field experience in pest control of two or four years depending on the branch, and pay a fee. §§ 8561-62.

The Board may revoke, suspend, or deny a license on any grounds for disciplinary action under the Structural Pest Control Act (§8500 et seq.). §8623. If the Board revokes or suspends an operator license and “the operator is the qualifying manager, a partner, responsible officer, or owner of a registered structural pest control company, the suspension or revocation may be applied to the company registration. §8524. The lapsing or suspension of a company registration by operation of law or by order or decision of the Board shall not deprive the Board of jurisdiction to proceed with any disciplinary proceeding against such company or to render a decision suspending or revoking such registration. §8625.

A registered structural pest control company shall provide the owner, or owner’s agent, and tenant of the premises for which the work is to be done with clear written notice which contains the following statements and information using words with common and everyday meaning: (1) the pest to be controlled; (2) the pesticide or pesticides proposed to be used and the active ingredient or ingredients; (3) “State law requires that you be given the following information:

“CAUTION—PESTICIDES ARE TOXIC CHEMICALS. Structural Pest Control Companies are registered and regulated by the Structural Pest Control Board, and apply pesticides which are registered and approved for use by the Department of Pesticide Regulation and the United States Environmental Protection Agency. Registration is granted when the state finds that, based on existing scientific evidence, there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.”

“If within 24 hours following application you experience symptoms similar to common seasonal illness comparable to the flu, contact your physician or poison control center (telephone number) and your pest control company immediately.” (This statement shall be modified to include any other symptoms of overexposure which are not typical of influenza.)”

“For further information, contact any of the following: Your Pest Control Company (telephone number); for Health Questions—the County Health Department (telephone number); for Application Information—the County Agricultural Commissioner (telephone number), and for Regulatory Information—the Structural Pest Control Board (telephone number and address).” §8538(a).

In the case of Branch 1 applications, this notice shall be provided at least 48 hours prior to application unless fumigation follows inspection by less than 48 hours. §8538(b). In the case of Branch 2 or Branch 3 registered company applications, the notice shall be provided no later than prior to application. §8538(b). In either case, the notice shall be given to the owner, or owner’s agent, and tenant, if there is a tenant, in at least one of the following: (1) first-class or electronic mail, if an electronic mail address has been provided; (2) posting in a conspicuous place on the real property; or (3) personal delivery. §8538(b).

If the building is commercial or industrial, a notice shall be posted in a conspicuous place, unless the owner or owner’s agent objects, in addition to any other notification required by this section. §8538(b). The notice shall only be required to be provided at the time of the initial treatment if a contract for periodic service has been executed. If the pesticide to be used is changed, another notice shall be required to be provided in the manner previously set forth herein. §8538(b).

It is unlawful for any person to advertise, to engage in, or offer to engage in the business or practice of structural pest control unless licensed. §8550(a). Notwithstanding, an unlicensed person may solicit pest control work on behalf of a structural pest control company only if the company is registered and the unlicensed individual does not perform or offer to perform any act for which an operator, field representative, or applicator license is required. §8550(b). To “solicit pest control work” means to introduce consumers to a registered company and the services it provides, to distribute advertising literature, and to set appointments on behalf of a licensed operator or field representative. §8550(b).

It is unlawful for an unlicensed person, soliciting pest control work on behalf of a registered structural pest control company, to perform or offer to perform any act for which an operator, field representative, or applicator license is required. §8550(c). It is also unlawful for any unlicensed person to offer any opinion, or to make any recommendations, concerning the need for structural pest control work in general, or in connection with a particular structure. §8550(d). It is unlawful for any firm, sole proprietorship, partnership, corporation, association, or other organization or combination thereof to engage or offer to engage in the practice of structural pest control, unless registered. §8550(e).

It is unlawful for any person to advertise or represent in any manner that any pest control work, in whole or in part, has been done upon any structure, unless the work has been performed by a registered company, except as otherwise provided in this chapter. §8552.

Disregard and violation of the buildings laws of the state, or of any of its political subdivisions, or of the safety laws, labor laws, health laws, or compensation insurance laws of the state relating to the practice of structural pest control is a ground for disciplinary action. §8636.

The commission of any grossly negligent or fraudulent act by the licensee as a pest control operator, field representative, or applicator or by a registered company is a ground for disciplinary action. §8642.

Disregard and violation of pesticide use and application, structural pest control device, fumigation, or extermination laws of the state or of any of its political subdivisions, or regulations adopted pursuant to those laws, is a ground for disciplinary action. §8646.

Authorizing, directing, conniving at or aiding in the publication, advertisement, distribution or circulation of any material by false statement or representation concerning a registered company’s business is a ground for disciplinary action. §8648.

The performing or soliciting of structural pest control work, the inspecting for structural or household pests, or the applying of any pesticide for the purpose of eliminating, exterminating, controlling, or preventing structural or household pests in branches of pest control other than those for which the operator, field representative, or applicator is licensed or the company is registered is a ground for disciplinary action. §8651.

It shall be unlawful for any licensee to recommend or perform any pest control corrective work under any contract or agreement that the licensee knows or has reason to know is in excess of that required to eliminate the condition for which the licensee was employed. §8666.

For the purpose of maintaining proper standards of safety and the establishment of responsibility in handling the dangerous gases used in fumigation and the pesticides used in other pest control operations, a registered company shall compile and retain for a period of at least three years, a log for each fumigation job and for each pesticide control operation in which a pesticide is used by the registered company or the registered company's employee. 16 CCR §1970. If the fumigation is to be performed by a fumigation subcontractor, the subcontractor shall complete the fumigation log and forward a copy of the log to the primary contractor within ten business days. 16 CCR §1970. The log for each fumigation job shall include certain specified information. 16 CCR §1970(a).

The term "fraudulent ac as used in section 8642 includes but is not limited to the falsification of any records pertaining to fumigation jobs or other pest control operations in which a pesticide other than a fumigant is used. 16 CCR §1970(c).

The primary contractor for fumigation shall have in his or her possession and shall provide to any subcontractor for fumigation a form signed by the occupants or designated agent of a structure. 16 CCR §1970.4(a). The primary contractor for fumigation and the subcontractor for fumigation shall retain a copy of the occupants’ fumigation notice for a period of at least three years. 16 CCR §1970.4(a). In case of multiple-family dwellings, the owner, manager or designated agent of the building may obtain signatures and/or verify the notification of the occupants. §1970.4(a).

The form shall state the name of the pest to be controlled, the pesticides/fumigants proposed to be used, the active ingredients and the health cautionary statement as required under section 8538 of the code. 16 CCR §1970.4(a). The form shall also state that a lethal gas will be used in the building on indicated dates and that it is unsafe to return to the building until a certification notice for reentry is posted by the licensed fumigator. 16 CCR §1970.4(a).

All pest control operators, field representatives, applicators and employees in all branches shall comply in every respect with the requirements of section 8538. Failure to comply with section 8538 is a misdemeanor and shall constitute grounds for discipline. 16 CCR §1970.4(d).

The use of any pesticide shall not conflict with labeling registered pursuant to the Food and Agricultural (“F&A Code”) which is delivered with the pesticide or with any additional limitations applicable to the conditions of any permit issued by the director or commissioner. F&A Code §12973.

On December 8, 1987, the Board issued to Marshall Operator's License No. OPR 7983. AR 169. On March 6, 1992, Marshall became the owner and qualifying manager of Stormies. AR 169.

Also on March 6, 1992, the Board issued to Stormies Company Registration Certificate No. PR 2212. AR 176. After a history of fines and suspensions (AR 177-180), the Board cancelled Stormies’s Registration Certificate on January 10, 2014. AR 180.

On January 14, 2020, the Board filed an Accusation against Marshall, Stormies, AAA Fume, Delgadillo, Allen, and Allen’s Exterminators.^{^[2]} AR 98-137. For Marshall and Stormies, the allegations were:

(1) failure to provide notice in violation of sections 8538(a)(l-3) and 8538(b) and 16 CCR section 1970.4(a) (AR 115);

(3) improper advertising of work in violation of sections 8552 and 8648 (AR 116);

(4) disregard of state and local laws with respect to section 8636 and Food & Agric. Code (“F&A Code”) section 12973 (AR 116);

(5) gross negligence and fraud under section 8642, 16 CCR sections 1970(a) and 1970(c), and F&A Code section 12973 (AR 117);

(6) disregard of state and local laws with respect to sections 8646 and 8547, 16 CCR section 1970.4(d), and F&A Code section 12973 (AR 117); and

(7) performing work in excess of that needed in violation of section 8666 and F&A Code section 12973 (AR 118).

After the January 27, 2021 hearing, the ALJ ordered additional briefing on the standard of proof that applies to this case: clear and convincing evidence versus preponderance of evidence. AR 18, 569.

Marshall asserted that he is a licensed professional in a field that requires testing and education and the standard of proof that applies to revocation of his license should be the same clear and convincing standard as for other professions. AR 575. Just like an attorney or an architect, revocation of his license would derail his livelihood. AR 579. A pest control license applicant must pay a fee, apply, undergo education training, and pass an exam. AR 579. Failure to apply the same standard as for attorneys would violate the equal protection clauses of both the federal and state constitutions. AR 577. Marshall emphasized that an agency cannot be allowed to derail a livelihood based only on preponderance of evidence. AR 579.

The Board replied that a structural pest control operator's license and a company registration are non-professional licenses. AR 597. Professional licenses require fulfillment of extensive educational, training, and testing requirements. The effort that goes into obtaining the license is substantial and the licensee has a strong protected interest in avoiding its revocation. AR 597.

In contrast, there are no educational requirements for an applicant for an operator’s license or company registration. AR 597. Any individual who is of age may apply for an operator’s license. §8561. An operator’s license applicant need only complete the application, take and pass an examination, have certified field experience and pass a background check. AR 597. A company registration applicant need only complete an application, pay a registration fee, have general liability insurance and provide either a dba filed with the County Recorder’s office or a copy of its articles of incorporation. Neither requires even a high school diploma. AR 597.

For such licenses, the controlling interest is the protection of the public by determining whether the licensee has exercised his privilege in derogation of the public interest. AR 599. The standard of proof is therefore preponderance of evidence. AR 599.

On April 19, 2021, the ALJ issued a Proposed Decision. AR 18-43. The ALJ reviewed Marshall’s license and Stormies’s registration and prior disciplinary action against them. AR 20. The ALJ concluded that the Board canceled Stormies’s registration as of January 2014 and that Marshall’s license was currently in effect and would remain in effect until June 2023. AR 20.

For the Thurgood Property, S.S., a 76 year-old woman, sought pest control services due to flying moth type insects in her home. AR 21. She was introduced to Marshall who inspected the Thurman Property in December 2018 and told S.S. that she needed to fumigate to kill the moths. He gave S.S. a single-page, handwritten "Contract Proposal" with letterhead in the names of Marshall and Stormies. AR 21.

After S.S. agreed to fumigation, Marshall contracted with AAA Fume to fumigate the property under the name of Allen’s Exterminators. AR 21. Marshall had a working relationship with Allen’s Exterminators and received 35% of the profits for any work brought in. AR 21.

AAA Fume fumigated the property from December 21, ,2018 through January 3, 2019, using the Fumigant Vikane. AR 21. S.S. vacated the property before the work started and stayed in a hotel. AR 21. However, S.S. was able to return to the Thurgood Property before it was certified safe for re-entry and did not see any notice restricting re-entry when she did. AR 21. S.S. started to feel sick and thought the pesticides made her ill. AR 21. Although she paid Marshall for the fumigation, she continued to receive bug bites as well as headaches, a strange taste on her tongue, and numbness in her mouth. AR 22.

In March 2019, S.S. complained about her experience to the County, which forwarded the complaint to the Board. AR 22. The Board’s investigator Donald Graves (“Graves”) went to the Thurgood Property, where he confirmed that Indian meal moths were the insects in question. Indian meal moths do not bite and Vikane is not a labeled use to treat them. AR 22. S.S. reported that an emergency room physician had identified the bug bites as scabies in early January 2019 – a condition caused by burrowing mites, not meal moths. AR 22.

Additionally, Graves showed S.S. the Standard Structural Fumigation Log signed by Delgadillo of AAA Fume. AR 22-23. The log identified termites as the subject pest. AR 23. He also showed S.S. an Occupants Fumigation Notice and Pesticide Disclosure which listed the fumigation contractor as AAA Fume, the target pest as drywood termites, and an owner’s signature that S.S. said not hers. AR 23. S.S. said that she saw a large banner “Stormies” on her home during the fumigation. AR 22. The cancelled check for the fumigation was made out to Stormie. AR 22.

Allen of Allen’s Exterminators stated that he used Marshall as a backup inspector only. AR 23. He knew nothing about the Thurman Property job, never saw an invoice for it, and did not know that Marshall was doing side jobs. His company also never used advertising banners. AR 24.

Graves tried to contact Marshall several times, who eventually replied via text message that he did not perform an inspection and admitted full guilt on the matter. AR 23. Graves then interviewed Delgadillo, who claimed AAA Fume only fumigates for termites, beetles, and bedbugs. AR 24. Additionally, he always used secondary locks and posts reentry notices. AR 24.

Marshall inspected the 126th Street Property in late 2018 on behalf of Allen Exterminators and found subterranean termites, drywood termites, and cellulose debris. AR 24. AAA Fume was contracted to fumigate the property with a pesticide for drywood termites, but Graves’ test led him to believe that AAA Fume used 11.7 pounds less than it needed. AR 24. Delgadillo claimed that this was just a recordkeeping error. There was not enough fumigant in teh first cylinder for the jobe and a second cannister was used but not recorded on the fumigation log. AR 25. Marshall was listed on the fumigation log as a crew member. AR 25.

Graves’ report concluded that Marshall and Stormies committed gross negligence or fraud but did not explain how. AR 25-26. Graves testified that the Thurman Property’s fumigation log and the fumigation notice were missing the required name and address of the owner or his or her agent, the required hour the fire department was notified of the fumigation, and the required hour the County Agricultural Commissioner's office was notified. AR 26. Additionally, Marshall operated under Stormies’ name despite the company’s cancelled registration. AR 26. Graves also questioned the claim that the 126th Street Property fumigation records were incorrect because the first cannister still had seven pounds of fumigant left, so there was no reason to switch to a second cannister. AR 26.

Marshall testified that he gave S.S. a Stormies card because that was the only card he had, but he was affiliated with Allen's Exterminators. AR 27. He concluded that bedbugs were the problem at the Thurman Property and had it fumigated for them, which is an on-label use of Vikane. AR 27. He was at the job throughout and spent two hours beforehand bagging items around the house and putting them in a car. AR 27-28. He put a banner on the house reading “Allen’s Exterminators,” not “Stormies.” AR 28. Although S.S. paid him $1,850 for the job, he forward $600 of it to AAA Fume and kept $1,200 for himself in satisfaction of prior debts. AR 27. He no longer works in pest control and lives only on social security income. AR 28.

The ALJ concluded that courts had always drawn a distinction between professional and non-professional licenses, such that decisionmakers apply preponderance of evidence as the standard of proof for the latter. AR 30. This distinction reflects the level of effort behind obtaining either one. AR 30-31. Here, an operator’s license requires only that an applicant be at least 18 years old, complete an application, pass an examination, have certified field experience, and pass a background check. AR 31. Meanwhile, an applicant for a company registration must designate a licensed operator as a qualifying manager and obtain liability insurance and an indemnity bond. AR 31. Although licensees are sometimes referred to as pest control professionals, both are non-professional or occupational licenses, not professional ones, and subject to only a preponderance of evidence standard. AR 31.

For the cause of failure to provide notice, Marshall and Stormies did not rebut S.S.’s declaration that she never saw the required occupant’s notice for the Thurman Property and that the signature on the notice was not hers. AR 32-33. This cause was proved by a preponderance of evidence. AR 33.

For the cause of unlicensed activity, the Board proved the allegation by clear and convincing evidence. AR 33. Marshall’s contract proposal to S.S. used the Stormies letterhead, which along with the Stormies business card he provided to her proves that Marshall was doing business as Stormies despite its revoked company registration. AR 33. Additionally, S.S. paid for the fumigation via a check to Stormies. AR 33.

For the cause of improper advertising of work, the Board proved by clear and convincing evidence that Marshall falsely advertised his business as Stormies, which is a company with a canceled registration. AR 34. Every interaction he had with S.S. used Stormies advertising – business card, contract proposal, and banner -- despite its cancelled registration. AR 34. Marshall’s claim that he used an Allen’s Exterminators banner is not credible because Allen’s Exterminators does not use such banners. AR 34.

For the cause of disregard of state and local laws by using a pesticide not in accordance with its label, the Board proved the allegation by clear and convincing evidence. AR 35. Marshall and Stormies violated F&A Code section 12973 by using a fumigant, Vikane, on the Thurgood Property that is not labeled for use on Indian meal moths. Marshall’s claim that the target pest was bedbugs was not credible. AR 35. All the paperwork referenced drywood termites, which were not the target pest either, Indian meal moths were. AR 35.

For the cause of gross negligence or fraud, the evidence was insufficient to determine whether the misuse and underuse of fumigants reflected fraudulent intent or honest error. AR 36. Additionally, while Marshall was part of the crew for the 126th Street Property fumigation, the evidence did not establish that he decided how much fumigant to use. AR 36.

For the second cause of disregard of state and local laws, the Board proved by clear and convincing evidence that Marshall and Stormies violated F&A Code section 12973 by using Vikane which is not labeled for use on Indian meal moths, and the Board proved by preponderance of evidence that Marshall and Stormies violated state laws that S.S. be given an occupant’s notice to S.S. AR 38.

For the cause of performance of work beyond that which is required, the Board proved the allegation by clear and convincing evidence. AR 39. Marshall arranged to fumigate S.S.’s home – an expensive process – with a fumigant that is not labeled for use on the insects at issue. AR 39. The work displaced S.S. for days and failed to eliminate the moth infestation. AR 39.

As to level of discipline, the manual of disciplinary guidelines provides for discipline for the proven charges ranging from a stayed suspension with three years’ probation to revocation. AR 39. The violations at issue caused significant harm to an elderly woman, wasting her money on the wrong type of fumigation and hotel costs, and causing her to be sick upon entering the house too soon. AR 40. Marshall profited from the misconduct, keeping most of the payment for himself. AR 40. He was doing business as Stormies, a company with a history of discipline, as he also had. AR 40. These aggravating factors made suspension an inadequate remedy and the ALJ therefore recommended revocation of Marshall’s license and revocation of Stormies’ registration certificate. AR 40.

The ALJ also analyzed the Board’s request that Marshall pay the reasonable costs of the investigation and enforcement of the case. AR 40. Based on Marshall’s testimony that his financial ability to pay the costs is limited, and the revocation of his license will likely further impair his ability to pay costs, the ALJ recommended an order compelling Marshall to pay $36,023 in investigation costs only if he succeeds in petitioning the Board to reinstate his license in the future. AR 42. Finally, the ALJ found it proper to prohibit Marshall from serving as an officer, director, associate, partner, qualifying manager, or responsible managing employee of a registered company. AR 42.

The proposed recommendation was (1) revocation of Marshall’s License and Stormies’s Registration Certificate; (2) an order for Marshall to pay $36,023 only upon reinstatement of his License; and (3) an order enjoining Marshall from serving as an officer, director, associate, partner, qualifying manager, or responsible managing employee of a registered company. AR 42-43.

The Board adopted the ALJ’s proposed decision on July 12, 2021, effective August 11, 2021. AR 15.

Petitioners challenge the Board’s decision to revoke Marshall’s License and Stormies’s Registration Certificate on the single ground that the ALJ^{^[3]} erred in not applying a clear and convincing burden of proof.

As a threshold matter, Petitioners fail to show that application of the incorrect burden of proof could have made any difference. The ALJ expressly found that the Board proved four causes by clear and convincing evidence: (a) unlicensed activity (AR 33); (b) improper advertising of work (AR 34); (c) disregard of state and local laws by using a pesticide not in accordance with its label (AR 35); and (d) disregard of state and local laws by using Vikane which is not labeled for use on Indian meal moths (AR 39). The ALJ also did not find Petitioners guilty of gross negligence or fraud. AR 36. The ALJ only found Petitioners guilty by a preponderance of evidence for two causes: (a) failure to provide notice (AR 32-33); and (b) violation of state laws that S.S. be given an occupant’s notice to S.S (AR 38).

Petitioners fail to show -- and the court cannot say -- that there is any reasonable prospect that their discipline might have been different if the burden of proof should have been clear and convincing evidence for the two causes on which the ALJ found them guilty by a preponderance of the evidence. In other words, there is no reason to believe that Petitioners’ License and Registration Certificate would not have been revoked if the clear and convincing burden applied to those two claims. As a result, the issue is moot.

Assuming arguendo that this conclusion is erroneous, and the issue is not moot, the court will address the merits of Petitioners’ argument.

Petitioners contend that the California Constitution requires the suspension or revocation of a professional license to be based on misconduct proven by clear and convincing evidence. Hughes v. Board of Architectural Examiners, (1998) 17 Cal.4th 763, 788-89, n. 9. This right to clear and convincing burden of proof is based on a “fundamental vested right” to engage in a particular profession and some courts have found it to be based on principles of due process. Id. For attorney discipline, it is settled law that findings made by a preponderance of the evidence in civil cases cannot be given binding effect for disciplinary purposes because clear and convincing evidence is required. See, e.g., Maltaman v. State Bar, (1987) 43 Cal.3d 924, 947. See Pet. Op. Br. at 5.

Petitioners rely on the equal protection clause in the federal and California constitutions, both of which prohibit governing bodies from treating similarly situated individuals differently. Petitioners contend that Marshall’s license revocation must be governed by the same standard as professional licenses. The standard of proof for revoking a license effectively says who may earn a living and who may not, and it is unlawful discrimination to apply a lesser standard than clear and convincing evidence. A standard of preponderance of the evidence would treat his professional license differently than others, which is prohibited by the Constitution. Thus, the standard of proof in the instant case should have been clear and convincing evidence. Pet. Op. Br. at 5.

Petitioners argue that, just like an attorney or an architect, the revocation of Marshall’s license would derail his livelihood. Pest control licensing requirements are similar to other professional licenses. The applicant must pay a fee to apply, submit an application for review, take some form of education training, and pass an exam. This is the same as an attorney or architect, neither of which requires formal education and can be obtained by on-the-job training. The only real requirement for these professional licenses is to pass a test. Since the licensing requirements for an attorney or architect are similar to the requirements for pest control and the effect of revocation is equally detrimental to the licensee’s livelihood, the burden of proof must be the same: clear and convincing evidence. Pet. Op. Br. at 5-6.

To qualify as a pest control operator, the applicant must be at least 18 years old, take and pass an examination, prove that he or she has satisfactory field experience in pest control of two or four years depending on the branch, and pay a fee. §§ 8561-62.

The Board argues that a structural pest control operator’s license is a non-professional license.^{^[4]} There are no educational requirements of any kind, and the evidence at hearing established that anyone meeting the most basic of criteria can obtain an operator’s license.^{^[5]} Accordingly, the burden of proof for revoking Marshall’s license is preponderance of the evidence. Opp. at 8.

Case law supports a conclusion that neither a fundamental vested right nor due process requires a clear and convincing standard of proof to revoke a non-professional license. San Benito Foods v. Veneman, (“San Benito”) (1996) 50 Cal.App.4th 1889, 1894 (food processor’s license); Mann v. Department of Motor Vehicles, (“Mann”) (1999) 76 Cal.App.4^th 312, 318-20 (vehicle salesperson’s license); Imports Performance v. Department of Consumer Affairs, Bureau of Automotive Repair, (“Imports”) (2011) 201 Cal.App.4th 911, 916 (advanced emission specialist technician’s license); Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services, (2012) 209 Cal.App.4^th 445, 453-54 (alarm company and alarm company manager licenses).

San Benito explained that the “sharp distinction” between professional and non-professional licenses is that a professional license “represents the licensee’s fulfillment of extensive educational, training and testing requirements” and “the licensee has an extremely strong interest in retaining the license that he or she has expended so much effort in obtaining.” 50 Cal.App.4^th at 1894. “Proof by clear and convincing evidence is required ‘where particularly important individual interests or rights are at stake,’ such as the termination of parental rights, involuntary commitment, and deportation . . . However, ‘imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of the evidence.” Id.

The court held that while the plaintiff’s food processing license “is important to the economic viability of plaintiff’s business, a license to process food is not a particularly important individual interest or right.” Id. (emphasis in original). The correct standard of proof was preponderance of the evidence because the food processing license did “not require the applicant to satisfy burdensome requirements but merely require the applicant to show good character and a sound financial position.” Evidence Code section 115 requires that the burden of proof be preponderance of the evidence unless the law requires otherwise, and it did not for a food processor’s license. Id. at 1895.

In Imports, the court noted that, while an applicant for advanced emission technician must complete certain course work and pass an examination, such requirements are not similar to the ‘extensive educational, training and testing requirements’ necessary to obtain a professional license. Therefore, the advanced emission technician license is a non-professional or occupational license governed by the preponderance of evidence standard of proof. 201 Cal.App.4th at 916-17.

Marshall’s license is similar to the food processor in San Benito and the advanced emission technician in Imports. While his pest control operator’s license is important to his economic viability, he was not required to meet burdensome educational, training and testing requirements to obtain it. As a result, his pest control operator’s license is “not a particularly important individual interest or right.” San Benito, supra, 50 Cal.App.4^th at 1894; see also Mann, supra, 76 Cal.App.4^th at 319 (vehicle salesperson’s license is non-professional license because it carries no educational, training, or testing prerequisites).

Except as otherwise provided by law, the appropriate burden of proof for Marshall’s license revocation hearing is preponderance of the evidence. Evid. Code §115. As the Board argues, there is no statutory or decisional law that would require the higher standard of clear and convincing proof for the revocation of his operator’s license. An operator’s license to perform fumigation is not a professional license that would invoke the clear and convincing standard. Opp. at 8.

Marshall does not argue that due process requires that the Board prove its discipline by clear and convincing evidence. Rather, he argues that equal protection requires that he not be treated differently than professionals such as doctors and lawyers. This requires a discussion of equal protection law. Yet, Marshall fails to set forth the law for evaluating an equal protection claim.

In analyzing the constitutionality of laws challenged under the equal protection clauses of the United States and California Constitutions, courts employ a two-tier approach depending upon the interest affected or the classification involved. Dunn v. Blumstein, (1972) 405 U.S. 330, 335; Sail’er Inn, Inc. v. Kirby, (“Sail’er Inn”) (1971) 5 Cal.3d 1, 15-16. If a legislative measure adversely impinges upon a “fundamental right” or involves a “suspect classification,” it will be subjected to a “strict scrutiny” test under which “the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” Sail’er Inn, supra, 5 Cal.3d at 16-17. In all other cases, the less stringent “rational basis” test applies. D’Amico v. Board of Medical Examiners, (1974) 11 Cal.3d 1, 16-17. Under the latter standard, legislation is invested with a presumption of constitutionality and distinctions drawn must merely “bear some rational relationship to a conceivable legitimate state purpose.” Id. The burden of demonstrating the invalidity of a classification under the rational relationship standard is on the party challenging the classification. Id. at 17.

In any event, Marshall does not show that the license revocation standard impinges upon his fundamental right in an equal protection sense or involves a suspect classification. Therefore, the court reviews his equal protection argument under the rational basis test. See D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at 16-17. The distinctions drawn between professional licenses and his own need only “bear some rational relationship to a conceivable legitimate state purpose.” See id.

The court agrees with the Board (Opp. at 7) that the case law draws a sharp distinction between professional licenses and non-professional licenses. A professional license represents the licensee’s fulfillment of extensive educational, training and testing requirements. Accordingly, the licensee has a strong protected interest in retaining the license they expended substantial effort in obtaining. The same cannot be said for a licensee’s interest in retaining a non-professional license. This is a rational relation to the state’s purpose of protecting the public while also protecting the hard-earned professional license.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Petitioners’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 11, 2022 at 1:30 p.m.

^{^[1]} All further statutory references are to the Business & Professions Code unless otherwise stated.

^{^[2]} Only Petitioners Marshall and Stormies are at issue in this action.

^{^[3]} For convenience, the court will refer to the ALJ’s decision and not the Board’s decision adopting it.

^{^[4]} Stormies is a “registered company”, which is any corporation or other entity that is registered with the Board to engage in the practice of structural pest control. §8506.1. The Board argues that a applicant to be a registered company need only complete an application, pay the registration fee along with proof of having general liability insurance and provide a copy of fictitious name filing for the County Recorder’s office or copy of the Articles of Incorporation. Opp. at 8. The Board fails to cite a statute or regulation imposing these requirements. In any event, Petitioners do not argue that equal protection requires application of a clear and convincing evidence standard to Stormies.

^{^[5]} Neither party cites any evidence from the administrative record concerning the ease with which a pest control operator can obtain a license.