Hollywood Termite Control Co. v. Structural Pest Control Board

MoCOMB, J. From a judgment of dismissal predicated upon the sustaining of a demurrer without leave to amend to petitioners’ petition for a writ of mandate to review a decision and order of the Structural Pest Control Board, respondents herein, petitioner appeals.

Facts : Petitioners were holders of Group D licenses under section 8560 of the Structural Pest Control Act, division 3, chapter 14, Business and Professions Code.* Under the terms [58]of the Structural Pest Control Act they were without authority to use fumigants in the control of termites and other wood-destroying insects and fungi. These petitioners solicited fumigation work as a means of exterminating termites and entered into contracts with various property owners whereby they agreed to do fumigation work for the extermination of termites. They thereafter subcontracted the work to a licensed fumigator authorized to use fumigants in the extermination of termites, who was a “Group A” licensee under section 8560 of the Structural Pest Control Act.

After notice and a hearing before an administrative officer of respondent board petitioners were disciplined for violating the Structural Pest Control Act by suspension of their license for 30 days on the ground that petitioners had violated section 8651 of the act.

Question: Does a holder of a “Group D” license under the Structural Pest Control Act who enters into a contract for the extermination of termites by the use of a fumigant, and who subcontracts such work to the holder of a “Group A” license, violate the provisions of section 8651 of the Structural Pest Control Act?

This question must be answered in the affirmative. Section 8560 of the Structural Pest Control Act classifies pest control licensees, and the nine groups contain groups A to I inclusive. Only two of these groups, “A” and “C,” are authorized to use fumigants, and only one of the groups, “Group A,” is authorized to use fumigants in the control of termites. Section 8505(b)2 of the act provides as follows: “All fumigation work regulated by this chapter shall be performed under the direct and personal supervision of a person licensed under this chapter.” Section 8651 of the act reads thus: “The performing, soliciting or inspecting of structural pest control work in other branches of pest control than those for which the operator or field representative is licensed is a ground for disciplinary action.”

It is the essence of the act that the public be protected against persons who are unqualified to perform the required work. It would violate the letter of the act to offer to do and to contract to do that which he was legally unqualified to do. It is the element of subcontracting that the original contractor assume the primary responsibility, thereafter delegating that responsibility to a further contractor who is secondarily responsible. The pest control operator cannot dele