Pest control entrepreneur defeats California’s unconstitutional licensing law

For more than 30 years, Alan Merrifield made his living helping Californians deal with pest problems. But Alan wasn’t your typical exterminator. He strongly opposed using pesticides, instead relying on clever, non-chemical methods to remove unwanted animals from homes and buildings. His company, Urban Wildlife Management, employed eco-friendly, physical barriers like screens and spike strips to keep rats, pigeons, and other unwanted critters at bay, and served diverse clients including the U.S. Navy.

In February 1997, Alan’s world turned upside down when a warning letter arrived from the California Structural Pest Control Board. The message was clear: get a license or face fines and possible criminal charges. Alan was stunned as he and his company already held several state licenses and certifications. According to the agency, however, state law required that Alan also get a “Branch 2 Structural Pest Control Operator’s license”—that focused on pesticide use, of all things.

The requirements were absurd; a two-year apprenticeship at a company to learn about pesticide use and a 200-question exam, with the vast majority of questions involving pesticides. The state was forcing a man in his 60s with three decades of experience and a thriving business to close his company for two years to study pesticides that his company doesn’t use and that he spent his career opposing.

Worse, the licensing law treated different pests differently, creating a framework for arbitrary enforcement. Alan didn’t need a license to deal with bats or raccoons without pesticides, for example, but he did need one for mice or pigeons. Installing spikes to deter seagulls needed no license, but those same spikes used against pigeons required one. What’s more, the state had been interpreting the law to require licenses for all structural pest control. Because those seagull spikes might accidentally thwart a pigeon landing, you’d need a license anyway.

This uneven approach reeked of protectionism, with California’s established licensed pest control agents safeguarding their monopoly on the most lucrative pests.

Licensing laws frequently interfere with folks’ right to earn a living by stifling competition against established industry firms. Unfortunately, courts had long looked the other way when states created such unjust barriers to benefit certain groups.

In 2004, faced with either punishment for working without a license or time and money to obtain the license, Alan fought back. Represented at no charge by Pacific Legal Foundation, Alan filed a federal civil rights lawsuit arguing California’s non-pesticide licensing scheme violated the Constitution’s Equal Protection Clause and his right to earn an honest living free from unjust government interference.

The Ninth Circuit Court of Appeals agreed, ruling in 2008 that California’s law was unconstitutional because “mere economic protectionism for the sake of economic protectionism is irrational” and not a legitimate governmental interest. That is, by singling out one economic group for no rational reason, California’s law was designed to protect economic interests of entrenched pest control licensees instead of public health or welfare.

This landmark victory freed California’s nonpesticide animal control services from unnecessary, burdensome licensing mandates, gave consumers more choice in pest control techniques and providers, and cleared the way for entrepreneurs in the states comprising the Ninth Circuit to pursue the occupations of their choosing and exercise their constitutional right to earn a living.