Many Arizonans, faced with an abundance of weeds, will head to the nearest home improvement store, purchase an over-the-counter weed control product, such as Round-Up, and commence spraying—and most of us expect our landscapers and gardeners to do the same. But unless those landscapers and gardeners can prove to the Arizona Structural Pest Control Commission that they have 3,000 hours of experience spraying weeds in the past five years, they can be fined for attempting to control those weeds. In fact, landlords and renters also fall under this licensing requirement; unless they own and occupy their home, they are prohibited from spraying weeds in Arizona unless they meet the Commission’s licensing requirements.
The 3,000-hour requirement makes it impossible for small gardeners and landscapers to do their job legally. Because most of these individuals are self-employed, they would have to spend no less than 18 months full-time (40 hours a week) just spraying weeds in order to reach the 3,000-hour threshold. And this doesn’t even count the time it takes to drive from one client to another, or to complete the other, non-weed-spaying, work on any given job. Plus, even if a gardener were able to find a way to spend 18 months full-time spraying weeds, he’d still have to admit to the Commission that he was spraying illegally when he went to prove his hours. Thus, independent gardeners are left with two choices: give up gardening, or go to work for a larger, fully licensed company (their competition) to get the required hours.
The new law benefits only one group: the large pest control companies, which will be able to charge more for their services since fewer competitors will be nipping at their heels.
Indeed, as soon as the Commission convinced the Legislature to adopt this anti-competitive legislation, bringing a whole new category of businesses under the Commission’s purview, it began a campaign of aggressive enforcement. Gardeners have been able to spray weed control products for years without a license, and suddenly the Commission’s investigators began tracking down and following gardeners literally laying in wait for the gardener to do his job. As soon as the investigator observes a gardener or his employees spraying a weed control product, the meddlesome bureaucrat steps in with a citation resulting not only in a cease and desist order, but also in a monetary fine ranging anywhere from $200 to $2,000. Between August 2004 through July 2005, the Commission cited and fined more than 50 different landscaping and gardening companies.1
The requirement is a blatant attempt to favor one group (the large pest control companies) at the expense of another (independent gardeners). Because it also happens to be a violation of the rights guaranteed by Arizona Constitution—namely due process and privileges and immunities—the Institute for Justice Arizona Chapter filed suit in Maricopa County Superior Court in Phoenix on September 28, 2005, challenging the law on behalf of two landscapers from Tucson, Gary Rissmiller and Larry Park. In doing so, we hope to end the Arizona Structural Pest Control Commission’s attempt to weed out competition and commonsense when it comes to weed control.
The Structural Pest Control Commission and the Pest Control Licensing Laws
The Arizona Structural Pest Control Commission regulates and licenses businesses and individuals engaged in pest control. This case presents the second opportunity for the Institute for Justice Arizona Chapter (IJ-AZ) to take on the Commission’s overreaching attempts to force more Arizonans to obtain licenses and thus come under the Commission’s control. In 2004, the Commission came down hard on teenage entrepreneur Christian Alf who started his own business helping citizens in Tempe rat-proof their homes.2 Alf’s business amounted to merely covering roof pipes and vents with wire mesh to prevent roof rats from entering attics. He charged $30 for his services and employed three of his friends. More importantly, Alf charged significantly less than his competition—large pest control companies, some of which charged hundreds of dollars. These larger companies ran to the Commission for protection from this industrious teenager, and the Commission leapt in response, demanding that Alf obtain a license for his business, claiming that he was engaged in the business of pest control.
Arizona’s citizens, upset by the Commission’s stand against free enterprise and this young entrepreneur, flooded the Commission with angry letters. Then IJ-AZ stepped in, threatening a lawsuit claiming a violation of Alf’s civil rights under the Arizona Constitution. Faced with an angry public and the prospect of having to defend its actions in court, the Commission relented.3
The Commission is once again over-reaching the limits of its power, now aggressively going after landscapers and gardeners who perform valuable and safe weed control services. Any business involved in pest control—and under the Commission’s definition, weeds are considered “pests”—must fulfill three licensing requirements: they must 1) obtain a business license; 2) employ a licensed “qualifying party,” which requires 3,000 hours of training; and 3) obtain an “applicator license” for each employee applying pest control products, which requires the employee to pass a test.
Exceptions to the Licensing Requirements
When the Arizona Legislature first introduced the pest control laws in 1988, they included three important exemptions so that people in these categories would not need licenses:
1. Those who apply “pesticides on property which they own, lease or rent.”4
2. Landscapers with a contractor’s license “whose application of non-restricted use pesticides is only in connection with turf and ornamental horticulture pest control and weed control and is incidental to their landscaping contracting work.”5
3. “A person who functions as a gardener by performing lawn, garden, shrub and tree maintenance who applies pesticides only as incidental to gardening work and who applies pesticides using spray devices or tanks having a capacity of five gallons or less, and who uses pesticides having a dermal toxicity level of less than 1200 L.D.”6
Since 1988, the Commission has used its influence to convince the Legislature to chip away at these exemptions. In 1993, the Legislature removed the whole landscaper exemption, thus subjecting landscapers to the full licensing regime unless they could fall within the gardener’s exemption.7 In 1998, it amended the gardener exemption so that it simply excluded “A person who functions as a gardener by performing lawn, garden, shrub and tree maintenance,” which seems to exclude all landscapers who don’t engage in maintenance services, but do engage in weed control as an incidental part of the landscaping business.8 Finally, in the 2003 Legislative Session, the Commission convinced the Legislature to eliminate this exemption.9
In that same 2003 amendment, the Legislature also eliminated the exemption for persons who lease or rent property, and added language so that someone who owns property must also actually occupy that property in order to spray pesticides.10 Thus, renters and landlords are no longer permitted to control weeds on their property without several licenses. The way the exemption is written also does not allow for gratuitous spraying for neighbors.
Thus, in less than two decades, the Commission has convinced the Arizona Legislature to move from a system requiring no licenses for landscapers and gardeners who incidentally use weed control products readily available over the counter, to a system that requires three separate licenses.
Licenses, Licenses, Licenses
In order to obtain a business license, the business must first have a “qualifying party” that will be active in the day-to-day management of the business.11 The business can then submit the required application documents and the $75 initial fee to obtain the business license.12
Each employee of a business licensee that applies pesticides must be licensed within 90 days of employment with an applicator’s license.13 An applicator’s license requires submitting an application, a $30 application fee, demonstration of good moral character, and a 75 percent passing score on an examination for each category in which the applicator is seeking licensure.14 A private company, Metro Institute, administers the exam for $48. The Commission conducts some training sessions and the basic study materials cost approximately $130 and cover right of way and weed control.
With the annual renewal fee of $20, the applicator must submit proof of 12 continuing education credits earned during the previous two years, which must be substantially related to the specific category of the applicator’s license.15
Each “qualifying party” must first hold a valid applicator’s license in each category in which the qualifying party license is sought.16 Next, each applicant must demonstrate his experience in the use of or supervising the use of a pesticide for the appropriate category.17 The applicant must within the last five years have completed either 3,000 verified hours of practical experience in the business of structural pest control or 2,000 verifiable hours and 12 semester hours or its equivalent, verified by certified transcript.18 Practical experience includes only actual compensated field work and not sales work.19 Therefore in order to sit for the Commission’s examination, the applicant must have obtained hours by working as an employee with an applicator’s license for a business that already has a qualifying party. The applicable state regulations also allow the Commission to consider work as a non-compensated volunteer or researcher doing field work, but they are not required to consider such work.20 A qualifying party must pay the annual renewal fee of $125 and meet the same continuing education requirements as an applicator.21
After submitting the required application materials, including proof of hours, proof of good moral character, and initial fee of $150, the applicant can then take the examination.22 The examination consists of testing the applicant within the category for which he is applying pertaining to his knowledge of pests and the use, storage, and application of pesticides and other devices used.23 Based on the study guides available, however, the material covered is generally the same as the applicator’s license test.24
A person acting as a qualifying party must be active in the management of the business licensee by “being present at the business office location each month to review pesticide use, storage and disposal and by ensuring the supervision and training of the employees of the business.”25 The qualifying party should also be available to the licensed applicators and employees of the business licensee during normal business hours.26 An individual who holds a qualifying party license can only work for one business at a time.27 If someone owns a landscape company and wants to control weeds, they must either hire a qualifying party or become one.28
The qualifying party license is an unreasonable additional demand for gardeners and landscapers who have already obtained an applicator’s license. First, no additional training is required in terms of the handling of weed control products. Second, the existence of a qualifying party on staff does not ensure that the remaining staff of applicators appropriately handles chemicals while on site.
A business involved in pest control need only have a single qualifying party on staff and that person is never required to be on site whenever a pest control activity occurs. Any conceivable danger present in using over-the-counter weed control products relates to whether the applicator has properly read the label and warnings, and is adhering to them. Having a qualifying party at headquarters does nothing to ensure that the applicator on site reads, understands and appropriately adheres to the label instructions. Further, the applicator’s license is required for this exact purpose: teaching and testing on the use of weed control products.
Larry Park works as a landscaper for Sunflower Community Association in Marana, Ariz. He holds a current applicator’s license with the Commission, and has held it for five years. On August 17, 2004, a Commission investigator observed Park with a backpack sprayer filled with Round-Up working outside the wall of the community. Park received a citation for unlicensed activity because the Association does not employ a qualifying party. Park argued before the Commission that, as a licensed applicator spraying lands owned by his employer, no qualifying party or business license should be required. The Commission disagreed and fined him $400.29
Based on the statutes as written, Larry Park is not permitted to engage in any kind of weed control activities unless the Association hires a qualifying party or Park becomes one. Larry Park has been trying to accumulate enough hours to get a qualifying party license for several years now. He can only accumulate hours, however, when working for free or working part time for an employer with a qualifying party. Only those hours accumulated in the previous five years count toward the requirement; Park is now approaching the five year deadline and stands to lose those hours he accumulated early on unless he is willing to quit or go on leave from his current position and become an employee for a company that has a qualifying party.
Gary Rissmiller owns and operates A Landscape Team in Tucson, Ariz. A Commission investigator targeted Rissmiller based on his Yellow Pages advertisement which listed weed control. The investigator located Rissmiller on February 5, 2004, at a job site, waited until an employee began to spray Weed Stopper II, a pre-emergent, and then issued a $500 citation. Since that time, Rissmiller has hired out his weed control work and estimates that his business has lost as much as $20,000 per year in revenue—given that there are companies out there who offer nothing but weed control services, this is sad evidence of the economic protectionism inherent in this licensing scheme. Further, Rissmiller noted that, in order for him to get his own qualifying party, he or one of his employees would have to quit working for A Landscape Team and go work for a competitor until sufficient hours are accumulated.
The Institute for Justice Arizona Chapter’s clients’ stories demonstrate what appears to be happening at the Commission: a systematic attempt to harass small landscapers that offer basic landscaping maintenance services at competitive prices. The Commission is abusing its authority and harassing small business owners who are simply trying to earn an honest living. Three of the seven Commission members are industry representatives.
IJ-AZ filed this lawsuit in the Maricopa County Superior Court in Phoenix on September 28, 2005. It goes to the very core of a cherished constitutional value: the right of individuals to earn an honest living free from excessive government interference. The plaintiffs in this case ask for nothing more than the opportunity to make their livelihood providing high-quality gardening and landscaping services at competitive prices without having to submit to Arizona’s oppressive licensing requirements.
The Arizona Constitution prevents the state government from arbitrarily interfering with Arizona citizens’ ability to earn an honest living in their chosen occupation. Under the Due Process and Equal Privileges and Immunities clauses, the government may only restrict one’s right to pursue his or her chosen occupation when there is a “rational basis” for that restriction. In order to show a rational basis, the government must show a reasonable fit between the restrictions in question and a legitimate public purpose. Creating insurmountable barriers to entry into a given occupation in order to promote the economic interests of a favored group, such as large pest control companies, is not a legitimate public purpose. Further, requiring a gardener or landscaper who merely sprays unregulated, over-the-counter products as an incidental part of his business to establish that he has spent 3,000 hours actually spraying weeds is not rationally related to any valid public purpose.
The plaintiffs have asked the state court to declare that, under the Arizona Constitution, the protectionist licensing scheme requiring them to obtain a qualifying party license violates their due process right to earn an honest living and their right to equal protection under the laws.
The Litigation Team
The lead attorney in this case is Institute for Justice Arizona Chapter Staff Attorney Jennifer Barnett, who litigates economic liberty cases throughout the state. Jennifer will be joined in the litigation by Tim Keller, the executive director of the Institute for Justice Arizona Chapter, who successfully challenged Arizona’s cosmetology licensing requirements in 2004.
Founded in 1991, the Institute for Justice has successfully represented entrepreneurs nationwide who fought arbitrary government regulation, opening up long-closed markets. These include:
Anderson v. Minnesota Board of Barber and Cosmetology Examiners—Filed in 2005 in the Hennepin County District Court, this case challenged Minnesota’s cosmetology regulations, which required African hairbraiders to enroll in 1,550 hours of government-mandated “training” none of which included even one hour of instruction in braiding. As a result of IJ’s litigation, hairbraiders in the state may now practice without obtaining a license.
Armstrong v. Lunsford—Filed in 2004 in the U.S. District Court for the Southern District of Mississippi, this case challenged Mississippi’s cosmetology regulations, which barred braiders from practicing their craft. Prior to receiving a ruling from the court, Mississippi’s legislature exempted braiders from the cosmetology licensing requirement in 2005. This result allows IJ’s client to continue to practice without obtaining a license.
Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—After being sued by the IJ’s Washington Chapter, Washington State’s Department of Licensing filed an “Interpretative Statement” exempting braiders from the State’s cosmetology licensing requirements.
Christian Alf v. Arizona Structural Pest Control Commission—In 2004, based on the Institute for Justice Arizona Chapter’s work in the court of public opinion, the Commission changed its position on requiring teenage entrepreneur Christian Alf to obtain a license for his after-school handyman business helping local residents prevent roof rats.
Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the State’s outdated cosmetology scheme.
Craigmiles v. Giles—This IJ suit led a federal court to strike down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the Sixth Circuit Court of Appeals and not appealed. This marked the first federal appeals court victory for economic liberty since the New Deal.
Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.
Ricketts v. City of New York—In 1999, IJ helped commuter vans fight a public bus monopoly that would not allow vans to provide their service in underserved metropolitan neighborhoods in New York City.
Cornwell v. California Board of Barbering and Cosmetology—In 1999, IJ defeated California’s arbitrary cosmetology licensing requirement for African braiders.
Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ also helped break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.
Uqdah v. D.C. Board of Cosmetology—In 1993, IJ’s work in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders.
For more information contact:
Vice President for Communications
Institute for Justice
901 North Glebe Road. Suite 900
Arlington, VA 22203
Institute for Justice Arizona Chapter
398 S. Mill Avenue, Suite 301
Tempe, AZ 85281