please the court my name is tim santa for i represent the opponents in this case i'd like to reserve five minutes for rebuttal of jaime may do some counsel just watch the clock this court has held that the standard required of occupational licensing laws is that they must be rationally related not merely to a legitimate state interest but specifically to a applicant's fitness or capacity to practice the profession itself the licensing scheme in this case fails that test one because it requires licenses for people who treat pigeon rat and mouse infestations but not other kinds of vertebrate pests for no rational reason and to because the licensing examination has no questions on it about pigeons and virtually nothing about rats and mice even though it's required of any person who goes into the business of treating these pests without pesticides and along works in three steps first anybody who deals with pests in structures must have a license that would be rationally related to a legitimate state interest the second step the law says there's an exemption if you don't use pesticides you don't need a license again that would be rationally related to a legitimate state interest me to protect people from dangerous chemicals so require that people who use them be licensed but then the third step is the definition of vertebrate pests in section eight five five five g of the business and professions code which says it does not include pigeons rats and mice and what that means is it leads to the irrational result that if you put spikes on a building to keep pigeons from landing on it you need a license but if you put the same spikes on the same building to keep siegel's off of it you don't need a license now this is not rational then there's no rational justification for the law that is not contradicted by the way it actually works in practice for example the district court said that perhaps licenses required for pigeon were but not siegel work because pigeons are more common there's no evidence in the record to support that but let's if we assume that that's true we wouldn't expect to find questions on the examination that have to do with pigeons and yet there aren't any out of there are two hundred questions on this licensing exam zero of them are about seven questions about non pesticide rat exclusion six about mouse exclusion and then when i was your is your focus in terms of remedy at this stage some sort of order compelling the state to revise and say examination or is this part of a larger interpretation as to rational basis it has to be it has to be understood as a whole and if the court were to order that that would solve only half of the problem it would not resolve the problem that the license is only required for people who treat some paths and not for others we think that the most appropriate remedy is simply to draw if you draw a line through a five five five g you end up with a rational result where the wall requires a license if you using dangerous chemicals requires you to know about those chemicals and know their dangers and the law doesn't require that license if you don't use those chemicals but we haven't and isn't that pretty much the end of the analysis at this point i really get very nervous about the inviting federal courts to commit and micromanage sure these agencies even suggesting that they have certain questions to the exam is not know we're really beyond our scope it would certainly be our b b on the court scope to try and  micromanage and to rewrite the examination that's not what we're seeking we're saying that while certainly the state has broad latitude that's what rational basis is all about but there are points where a rational basis falls apart and that is when you have an examination that tests a person impose a severe little education and licensing requirements on a person to learn skills that that person does not use for instance in the crew in the cornwell case where the hair braiders were being required to go to get barber li and when the district court found in that case was barbers do skills a through z but bar of a pair breakers do skill a in a little bit of skill be they don't use chemicals they don't cut hair they don't do hair styles and it's irrational to require them to go architecture and to pass the architect's practice exam even though there might be cases where a lawyer would need that information lawyers representing architects perhaps but that goes too far and require and puts too much of a burden on a person to learn irrelevant skills with lawyers you know as we know in a lawyers or are officers of the court they're subjects to being assigned to criminal cases even if they deal only in real estate transactions things like that so it is certainly reasonable to say lawyers need to know these skills because a lawyer will be called on to exercise those skills and if and if they're going to go into business they have to to know that practice well not all the way it works down a little bit doesn't i mean what the reason for the question i suppose in the bar exam is that if you're a general practitioner and someone walks  with what in reality is a trust in the state's problem that you know enough about the law to the able to tell them that you're not qualified to handle that that leads to mike my question is is your client listed in the yellow pages under pest control you know i i don't know this soon that he is and i've got a problem with it jens or rats at my building or my house and i call your client up and he comes out and explain so how he can use their ears to prevent these things from coming in my house which i don't want in my house or my commercial building and in the course of talking with him i say well what about pesticides well they do the same thing now can he answer that question now that consumer education the consumer education rationale was relied on by the district court but what's important here is that the defendants express disclaims that as a rationale for the long they said consumer education is not part of the occupational analysis and is not present on the examination so the licensing exam does not have value weight whether a person can do that and if that were the rational justification for the law again there's no reason to require it for people who deal with pigeons but not for people who deal with any other kind of pest bird or any of the congo other kind of vertebrate pest if you records that to the lawyer analogy lawyers are not required to take the patent bar  want to go into patent law and that's because to require this this a degree of education and testing and standards would be very burdensome for people who don't really use those kinds of skills so the legislature has drawn these lines and said well if you're going to do this practice you need to can has leeway plenty of leeway to design licensing regimes to test the skills that are appropriate and at as long as they satisfy the didn't standard from this court said those licensing requirements mu rationally related to a person's fitness or capacity to practice but a person could take this examination get a license go to work on a pigeon problem and have no idea about anything about pigeons because there's nothing on the examination that requires a person to people who don't use pesticides or people who do use pesticides as those are the same while ignoring important differences between them and that's what happened in cornwell with the arab leaders being treated like barbers and that's what happened in craig miles the casket case where people were just selling co they weren't officiating at funerals and yet the state of tennessee was requiring them to spend two years learning how to handle dead bodies learning how to officiate at funerals and the sixth circuit court of appeals said that's not rational so on one hand it blunts together people who are different important ways but at the same time it treats people who are similarly situated differently for no rational reason so if the state could not have a diff have differing could not have the same licensing requirements for distinctions no fine distinction is necessary here we have a licensing examination that has two hundred questions on it of which sixteen have any relevance to the plaintiff's practice it's not just you have sold the judge your scam on that no part of your request for relief asked that we direct the state to modify the exam no we're simply showing that the how the examination works in conjunction with the licensing requirements to result in an irrational licensing occupational licensing regime they work as a whole and what we have is people who deal with pigeons are required to undergo all of this training when they don't use pesticides and to pass an examination that has nothing on it about pigeons were as a person shows up to do a seagull job on the same building using the same technology for the same reasons and is not required to have any educational or testing or licensing requirements at all so one of the problems with your reference to cornwall it seems to me is that there was more than an implication that those regs were designed to protect the cosmetology industry that's right is there any innuendo in it with respect witness testified at length under oath about the origin of this licensing requirement and testified that that is exactly what happened well who's benefited who who who who are the the pest control companies that already are licensed to practice in this field what happened was first the law required a license for everybody but then the proposal was aired to say well if they're not using pesticides they shouldn't need a license and when that happened of course with that as a state's expert witness the only witness they offered testified what happened was those who have licenses wins to sacramento and demanded that the laws remain in place the licensing requirement remain in place for the most common pets the pets that are the biggest part of the business and he said that they that the law was designed to quote divide up the trade and to ensure that those who had licenses were protected from fair competition by outsiders now we submit that the craig miles is the sixth circuit decision craig miles shows how a court should analyze this problem once we've dealt with the rational justification for the law that had been offered by the state and those were that it that pigeons are the most common pests but the problem with that is the test doesn't exist evaluate a person's knowledge of that the second one was well people might need to know about pesticides that had been  applied by other people and if that's the case there's no rational justification for requiring the law of the license only for people who deal with pigeons and not for people who deal with siegel's and and then the third one was the consumer education rationale which again is not present on th expressly disclaimed by the defendant in this case so once we've dealt with those rational justification and shown that they hold no water the next question is was it designed for protection is purpose because that's not a legitimate state interest laws regulating entry into an occupation must be rationally related to fitness and capacity to practice the occupation and that's what we have here the law does not regulate does not ensure a person's fitness or capacity was designed on the undisputed evidence in this record simply to protect the seize against fair competition by entrepreneurs like alan merrifield who want to use non pesticide non dangerous methods on on pigeon works projects and structures in california so little one concluding point is that in crate monitoring cornwell rather the courts found that what was happening was that people who dealt with hair braiding were being required to take an examination that had about ten percent of the questions names or the ten percent of the of the educational materials relevant to their practice here we have eight percent by our count twelve percent by the district court's count either way it's very close and it shows that this license w exterminators that's what it was designed for and it's being applied to people who aren't exterminators to put up screens and spikes to keep birds and but to exclude them from competition that's right to protect those who have licenses from having to record at pages forty six or forty five six to forty seven page sixty six page seventy five that's mr paulson's testimony and that was supported by our own expert witness at the excerpts of record pages fourteen and fifteen i'm not really sure i follow you on the what it what i think it shows is that this exemption and this definition of vertebrate pest was designed to protect licensees with regard to the most common vertebrate pests the ones that are the biggest part of their business that's what rationally related to to a person's fitness or capacity to practice if that's what the state was trying to do in exempting certain practitioners was to say look if you're going to use dangerous chemicals you need to know how to do it in order to not be in danger the public and and i want to start by addressing a point that was raised there are many points raised by my opposing counsel for that i'd like to address but one very important one seems to be at the crux of this issue and that is that what we're talking about here is one profession it is a single profession and their profession is structural pest control in this case it's about licensing requirement for one profession to protect the consumer and the health and safety of the public if you're a moment correct the the state just about as rational basis the consumer analysis was to determine the types of questions that would be on the test that analysis did not have as a subject consumer education nor therefore do the questions on the test focus on consumer education but as stated in my brief consumer education does that those two facts don't mean that consumer education isn't a proper subject area for the people who are engaging in structural pest control in fact it does help the consumers for these people to be aware of the risks and the health hazards that are involved in this one profession of structural pest control because you keep using the word one profession and i when i hear you say that immediately brings me to the cornwall case where the same argument was made cosmetology is one profession and if you're a braider or not it's your part of the same profession and there are the court held that was not true that's true your honor the court did how hold in that case that there was not one profession because what they found was but that the hair braiding did not fall into the realm of cosmic cosmetology profession because there was minimal crossover between what the hamburgers did and what the rest of the cosmetologist do in this case there is a considerable amount of crossover one very important area where there is crossover is in the definition and that goes to the heart of the one profession of structural pest pesticides to eradicate infestations and the use of mechanical devices to eradicate infestations and that is exactly what a talent to do so appellants are part of the whole structural pest control the problem i have with that analysis it's a bootstrap analysis you decided that there is a profession and then you have indicated that there are several parts of the profession his point is that there is a cleavage between the two parts and the state doesn't recognise that in brings him back to the cosmetology argument well i haven't decided that there are two profession to portions of a profession and one the legislature has and the legislature did that in section eighty five zero five well the whole point is that this is an irrational classification and the legislature sometimes makes mistakes well turn it on its face what what really what it is is a small exemption for a group of pest control operators that deal with non pesticides and with a certain vertebrate test and those pests were defined in section eighty five fifty five julie as raccoons squirrels bats except for what was specifically excluded from that definition i'm having a problem with like the congress in my last question which is i don't see any any reason why and i really need you to give me a good one why  is between those predominantly structural pests which are mice rats and pigeons they are the most common and destructive structural pests and that was stated by both both sides expert tasks and because those three groups averted those three vertebrate types of pests harbor viruses disease ills and eco parasite they create a significant potential threat to the public for exposure to those particular diseases viruses etc i just by numbers alone regulated ok so the legislature may have to say now there are no space and there is not there is no legislative history on the reasons the particular reasons why that's irrelevant that's constitutionally reluctant official irrational well eric paulson said it's irrational but that needs to be viewed can textually and when you view this statement contextually you were correct when you said that his opinion is that there should be complete are to target are these vertebrate pests the vertebra passed do you not do you not potentially expose the public to the health to the amount of health and safety there are more pigeons that that invade structures then there are pigeons and what we're talking about here is the structural pest control board it's in their interests to well i can answer you made a statement here that there are indeed more pigeons affecting structures and seagulls and i want to know what's the source of that assertion the source of that assertion is both sides experts saying that mi pigeons are the most common and effect and destructive structural pests so if they are the most common but there is no finding with respect to sieg in your own expert said there was no rational basis for differentiating between pigeons singles is that  i'm not exactly sure and under what context my experts stated that there was no different reason to differentiate there is a reason to differentiate when it comes to their affecting structures and the reality is that pigeons affect structures in more in a more severe way than siegel's in fact my expert did say that that is one of the main reasons why there are potential problems in restaurants because of the what endangers the public health i believe he did say that it would be better to regulate every one and what we have here is a legislature drawing a line and really the question is whether there is a rational basis there could have been a risk analysis the legislative could legislature could have undergone a risk analysis to determine how much the public health and safety was going to be affected by exposure and just by virtue of the fact that m and pigeons in number are more significant and number of affecting these structures that it protected the health safety and welfare of the public to continue to lie just to continue to regulate these people versus  relatively minimally intrusive rarely and incidentally incidentally to leave existing in structures that other group they were collaterally appearing in structures so they consisted of a negligible proportion that would affect the public health are you referring to the potential rationale of the legislature there's also a problem in state element here perhaps this pest control companies might have a stronger lobby in which case they might be persuaded to make a distinction which conceivably would not survive rational basis so my question  you is what to what extent did judge wars or look at this question about the viking up the trade i think that was the were those are the words and mr sander for use that that this is really  nothing more than economic protectionism of a particular entity well i asked of companies i think when my opponent talked about the craigmil case there is a very think something very significant and that is it's two step process the first is to determine whether there is a rational basis and after you determine if after if you determine that there is not then you go into the question as to whether there is economic protectionism in this case the court down below didn't have to get to that second step because there wasn't a finding that there was a rational competition from his clients and that's what happened i mean we were cutting to the chase here and the state can prevail if it can survive economically or if it can survive rational basis but we're having some tile logical actually his reasoning cite can but i can tell you that expert paulson and opposing councils expert testified that those three if the these were treated as a single profession the cornwell court said quote that even if cornwell were defined to be a cosmetologist the licensing regimen would be irrational as applied to her because of her limited range of activities even if she fell under the general description of a cosmetologist it's not rational to require her to learn and a huge amount of skills and information that she simply would never use so the contention that this is simply a single profession i think overlooks the important details in this ca occupational analysis and therefore there are no examination questions regarding the ability to educate consumers so the test does not evaluate a person's fitness or capacity that's the act and that goes to the test and i had understood your argument   i that's not what i'm trying to say well what happened is that the defense telecom is a registrar of the state pest control board and she testified in that capacity that educational educating the consumer is not part of of what a practitioner is expected to do enough that it would have a place on the examination and so the examination doesn't test a person's ability to do it my understand the difference no ok finally with regard to the powers case which was brought up quickly we would urge t court to follow the craig miles line and to follow the craig miles decision rather than powers there is a conflict between the circuits on that point the supreme court denied certain powers powers declared that mere protectionism alone is a legitimate state in which raises serious questions because the rational basis test has always been understood since its inception to require a rational relationship to a legitimate state interest in protecting the public health safety and welfare not merely in serving private benefits at the expense of other people with regard to the question that have been brought up about whether pigeons are more common or or less common i don't either i don't recall either whether there's any testimony to that effect in the record and i certainly can point the court to it but that really isn't the essential point here because the question isn't whether pigeons are siegel's are more common the question is whether there's a rational basis for requiring a person who puts puts up spikes or or other devices to keep pages off the building needs to have training in the lifespan of mobs and the dangers that certain chemicals impose or as a person puts the same spikes on the same building to keep siegel's off of it doesn't need to know that record no they simply assume that thank you thank you counsel the case just argued will be submitted for decision and the court will take