Koop v. Structural Pest Control Bd.

rior court denying the petition of George Koop and Joseph Spiecker (hereinafter, Koop, Spiecker or petitioners) for a. peremptory writ of mandate.^[1] By this petition they sought to have the Structural Pest Control Board of the State of California (hereinafter, the board) directed to reinstate their licenses (which had been suspended after a hearing) and to have the registrar directed not to- require any restoration bond.^[2]

Petitioners argue both the unconstitutionality of, and the unconstitutional application of, certain laws and regulations assertedly relevant to the infractions. They also- urge that the orders contained in the decision suspending Spiecker’s field representative license for 15 days and Koops’ operator license for 180 days, subject to three years’ probation with the condition of a 30-day suspension, are harsh, arbitrary, and not in the furtherance of duty. They also contend that the requirement for restoration bonds made by the registrar was an abuse of discretion, or that such discretion was pre-empted by

Constitutional Questions

Petitioners argue that the act has made a classification between structural pest control licensees and operators dealing with rodents and bugs, because the former must file reports whereas the latter need not. It is urged that the classification is unreasonable because reports in the latter category would be more vital since health rather than property hazards are involved. However, in response, it is noted that factors of human safety are involved in structural pest control when the stability and durability of buildings are threatened. Moreover, there is no showing that problems with rodents and bugs are as prevalent as those with structural infestors. Further, there is no indication in the legislation that the filing of reports in either category need be considered essential to eradication; but there is an indication in the structural pest control act that, as is generally known, having official reports of record in the wood pest category is important because of the frequent conditioning of transfers of improved parcels of real property on such records and the reliance of purchasers thereon. We note that under section 1990 (c) of the regulations (title 16, Cal.Admin. Code)^[4] the name of the person ordering the report and the identity of the other party in interest are to be given in the report. Finally, the matter of report filing is but one aspect of the total pest control picture. We cannot say that the Legislature made an unreasonable classification. Moreover, it can be said that there is no true classification at all but simply a reasonable minor differentiation in requirements.

It is further claimed that an unequal tax levy has been effected because of the fact that a stamp purchased by the structural pest control operator from the board must be attached to a report being filed. However, given the circumstance that a constitutional classification exists, there is no basis for the claim of an unequal tax levy. Moreover, the requirement appears to be correlated strictly to defraying the cost of the report filing system. Finally, petitioners were not charged with failure to buy and use the stamps. Thus, this alleged constitutional question is not sufficiently pertinent to the matter at issue.

The next complaint is that the imposition of the penalties has effected a taking of property without payment of compensation. Although in one sense the right to earn a livelihood might be considered property, the penalty impositions which briefly interfered with that right are in the police power field; there is no compensable taking.

Petitioner’s final constitutional contention is that the Legislature has improperly delegated authority to the board to suspend licenses where there has been no violation. However, all petitioners’ complaint really amounts to is that there has been no violation and therefore that there is no right in the board to exercise the suspension power delegated to it.

In summation we agree with the board’s position that neither are petitioners’ points sufficiently relevant nor are their authorities sufficiently germane to be persuasive. In the absence of a clear and convincing demonstration that the challenged provisions of the act are arbitrary or are incapable of furthering a lawful purpose under the police power, they must be found to be constitutional. (Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 , 486-489 [ 99 L.Ed. 563 , 571-573, 75 S.Ct. 461 ]; Ferguson v. Skrupa, 372 U.S. 726 , 730-731 [ 10 L.Ed.2d 93 , 97-98, 83 S.Ct. 1028 , 95 A.L.R.2d 1347 ]; Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverage. Control, 65 Cal.2d 349 , 358-364 [ 55 Cal.Rptr. 23 , 420 P.2d 735 ].)

Penalty Imposition as Unreasonable or Abuse op Discretion

Under this heading must be placed what amounts to an argument by petitioners that the findings of fact do not warrant the conclusions of law as to violations upon which the judgment imposing the penalties rests. Petitioners’ position seems to be that any penalty would be arbitrary if there was

With respect to Koop, there is no merit in the claim that the findings do not support the violation conclusions.

The hearing officer concluded that Koop was subject to disciplinary action (Bus. & Prof. Code, § 8641) and therefore to license suspension (Bus. & Prof. Code, § 8620) because he had violated section 8516, subdivision (b) (7) of the Business and Professions Code and section 1990(g) of the regulations by not setting out in his report that there was evidence of dry-wood termite infestation in the substructure and attic walls of the home involved. Section 8516, subdivision (b) (7) says that there shall be set forth in the report information '‘ regarding the substructure . . . [and] attic spaces . . . .” Section 1990(g) states that all reports “must . . . describe . . . [i]nfestations ... or evidence thereof.” Koop contends' he was not required to include in his report that there was evidence of dry-wood termite infestation because, as found 'by the hearing officer, it was not known whether the evidence of such infestation in the attic reflected an active infestation or a corrected past condition. The code sections do- not exempt past corrected conditions. Even more important, their purport requires that such an ambiguous item of evidence be reported as such. Finally, the hearing officer did not find that the condition in the substructure could have been a corrected past infestation. -This applied only to the attic.

The hearing officer also concluded that Koop was subject to disciplinary action, and therefore to license suspension, because he had violated section 1990(h) (5) of the regulations by failing to set forth in his report a condition of dry-rot damage in the mudsill in the rear of the house. Section 1990(h) (5) states that all reports “must . . . describe. . . . [e]onditions usually deemed likely to lead to infestation . . . including . . . [s] tructural members found to be structurally weakened by wood-destroying pests. ...” Koop contends that the involved section only requires reports of conditions wherein structural members are weakened by action of wood-destroying pests, and that there was no finding that the mud-sill^[6] was structurally weakened. The finding was, in effect,

The contention of the arbitrariness of penalty or restoration bond requirements because of their stemming from a faulty conclusion has no merit as to one of the. two violations-adjudicated against Spiecker, but does as to- the other.

As to the first item, Spiecker admits the technical infraction of failing to file an inspection report negative as to infestations. His only claim for lack of fact-finding support for the conclusion of a violation is the absence of the element of negligence. However, there was a supplemental finding to the