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Filed 1/21/22 Sharpe v. Structural Pest Control Board CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

RONJIEL SHARPE et al.,

Plaintiffs and Appellants,

v.

STRUCTURAL PEST CONTROL 

BOARD,

Defendant and Respondent. 

 A162226

 (Alameda County

 Super. Ct. No. RG20062857)

Pursuant to its authority under the Structural Pest Control 

Act (the Act; Bus. & Prof. Code, § 8500 et seq.),1 the Structural 

Pest Control Board (Board) revoked Ronjiel Sharpe’s pest control 

operator license and denied the registration application filed on 

behalf of Precise Management, Inc. (Precise). Sharpe and Precise 

appeal from a judgment denying their petition for writ of 

administrative mandamus (Code Civ. Proc., § 1094.5). Sharpe 

contends that the Act’s licensing requirements are preempted by 

federal law or violate the Contract Clause. We affirm.

1 Undesignated statutory references are to the Business 

and Professions Code.
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BACKGROUND

A.

Under California law, persons engaged in, or offering to 

engage in, structural pest control are generally required to obtain 

licenses from the Board. (§ 8550; Merrifield v. Lockyer (9th Cir. 

2008) 547 F.3d 978, 980.) Corporations similarly engaged are 

required to register with the Board. (§§ 8514, subd. (c), 8550, 

subds. (b), (e), 8610, subd. (a).) 

B.

In June 2018, Precise successfully bid on a contract to 

perform structural pest control work for the United States 

Department of Veteran Affairs (the department) at its facilities in 

California. 

The department required Precise and any personnel be 

licensed in California before beginning work under the contract. 

At the time Precise was awarded the contract, neither Sharpe nor 

Precise held California licenses to perform structural pest 

control. 

In early July 2018, Precise began performing the 

contracted pest control work—using subcontracted local pest 

control companies—at the department’s California facilities. 

About two weeks later, the Board sent Sharpe and Precise a 

“cease and desist” letter. The Board directed Sharpe and Precise 

to stop pest control operations until they were properly licensed 

and registered, as required by the Act. The letter cautioned, 

“[f]ailure to comply with this Notice will result in a formal 

investigation and disciplinary actions against you and your 

Company.” 

Precise later filed an application for company registration. 

And, in November 2018, the Board issued an operator’s license to 

Sharpe. Between July and November, however, Precise 
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continued to perform and bill the department for work under the 

contract. 

The Board initiated disciplinary proceedings against 

Sharpe and Precise. Both filed a motion to dismiss, arguing that 

California lacks authority to regulate pest control work on federal 

property. The Board denied the motion, stating it “lacks 

jurisdiction to grant relief on that basis”. 

After a hearing that Sharpe did not attend, the Board 

revoked his operator license (§§ 8620, 8623, subd. (a)), concluding 

that, by performing work without a license and while Precise was 

not registered, he violated the Act (§ 8641) and had aided and 

abetted an unregistered company in evading the Act (§ 8639). 

The Board also denied Precise’s registration application (§ 8568). 

C.

Sharpe and Precise filed a petition for writ of 

administrative mandamus, seeking to set aside the Board’s 

license revocation and registration decisions. They argued, with 

very little in the way of explanation, that the Act violates the 

Contract Clause of the United States Constitution and that the 

Act is preempted by federal law. The trial court entered 

judgment denying the petition for writ of mandate. 

DISCUSSION

A.

Sharpe and Precise insist that the Act is preempted by 

federal law. But they fail to meet their burden to show error. 

(See Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 956 (Bronco 

Wine) [“party who claims that a state statute is preempted by 

federal law bears the burden of demonstrating preemption”]; 

Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 

443 [appellant bears burden of affirmatively demonstrating 

error].)
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“Under the supremacy clause of the United States 

Constitution (art. VI, cl. 2), Congress has the power to preempt 

state law concerning matters that lie within the authority of 

Congress. (Crosby v. National Foreign Trade Council (2000) 530 

U.S. 363, 372 . . . .) In determining whether federal law preempts 

state law, a court’s task is to discern congressional intent.” 

(Bronco Wine, supra, 33 Cal.4th at p. 955.) However, we assume 

that a state’s historic police powers are not preempted “ ‘ “unless 

that [is] the clear and manifest purpose of Congress.” ’ ” (Dowhal 

v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 

910, 923 (Dowhal).)

Federal preemption takes three forms: express statutory 

preemption, field preemption, and conflict preemption. (Crosby v. 

National Foreign Trade Council, supra, 530 U.S. at pp. 372-373 & 

fn. 6; Bronco Wine, supra, 33 Cal.4th at p. 955.) Sharpe and 

Precise do not identify any express preemption provision or 

comprehensive scheme of federal regulation. We are concerned 

only with conflict preemption. 

Conflict preemption exists when “ ‘it is impossible for a 

private party to comply with both state and federal requirements 

. . . or where state law “stands as an obstacle to the 

accomplishment and execution of the full purposes and objectives 

of Congress.” ’ ” (Dowhal, supra, 32 Cal.4th at p. 923.) “What is 

a sufficient obstacle is a matter of judgment, to be informed by 

examining the federal statute as a whole and identifying its 

purpose and intended effects[.]” (Crosby v. National Foreign 

Trade Council, supra, 530 U.S. at p. 373.) 

Sharpe and Precise also fail to affirmatively demonstrate a 

conflict between state and federal law making it impossible for 

them to comply with both state and federal requirements. (See 

Dowhal, supra, 32 Cal.4th at p. 923.) Instead, they make skeletal 

references to three federal statutes, as well as the Act, and 

suggest that the application of California’s licensing and 
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registration requirements to federal contractors presents an 

obstacle to Congressional goals. (See ibid.) But they do not 

explain why it is impossible to comply with both state and federal 

requirements. Nor do they explain how any provision of state 

law presents an obstacle to accomplishing Congress’s goals. 

Sharpe and Precise cite Leslie Miller, Inc. v. Arkansas

(1956) 352 U.S. 187 (Leslie Miller) without explanation. In that 

case, the Supreme Court held that an Arkansas licensing law 

could not be applied to a contractor hired by the federal 

government to construct facilities at an air force base in 

Arkansas. (Id. at pp. 187-188, 190.) The federal Armed Services 

Procurement Act of 1947 (41 U.S.C. § 152) provided that the 

contract should be awarded “ ‘to that responsible bidder whose 

bid, conforming to the invitation for bids, will be most 

advantageous to the Government, price and other factors 

considered.’ ” (Leslie Miller, at p. 188.) The governing federal 

regulations—which were discussed in detail—enumerated certain 

criteria for the agency to consider in determining whether a 

contractor was “ ‘responsible.’ ” (Id. at pp. 188-189.) The 

Arkansas licensing law, which was also analyzed in detail, listed 

similar factors to be considered in determining whether its 

licensing board should grant a contractor’s license. (Ibid.) Given 

this significant overlap, the Supreme Court held that the federal 

and state schemes “conflict” because the state licensing board 

could exercise a virtual veto power over a contractor whom the 

federal government found “ ‘responsib[le.]’ ” (Id. at p. 190.)

We do not read Leslie Miller as categorically barring states 

from applying licensing laws to federal contractors. To meet 

their burden to demonstrate federal preemption, it remains 

incumbent on a federal contractor to demonstrate how a state 

licensing law conflicts with federal law or presents some obstacle 

to Congressional objectives. (See Leslie Miller, supra, 352 U.S. at 

p. 189 [explicitly reviewing federal government’s “ 
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‘responsibility’” factors and comparing those to Arkansas 

licensing law]; Gartrell Construction Inc. v. Aubry (9th Cir. 1991) 

940 F.2d 437, 439 (Gartrell) [detailing similarities in federal 

contracting requirements and state licensing law that show 

California was “effectively attempting to review the federal 

government’s responsibility determination”].) Sharpe and 

Precise fail to do so.

Sharpe and Precise cite Leslie Miller and Gartrell without 

explaining how these authorities support their position, they 

superficially identify some of the federal contracting laws 

purportedly at issue but do not identify the laws’ substantive 

requirements, and they wholly fail to address the Act’s 

requirements. It is not our role to construct arguments on 

appellants’ behalf. (In re Marriage of Falcone & Fyke (2008) 164 

Cal.App.4th 814, 830.)

Because Sharpe and Precise have forfeited their conflict 

preemption argument (see People v. Stanley (1995) 10 Cal.4th 

764, 793 [reviewing courts may disregard points missing cogent 

legal argument]), we express no opinion on the merits of their 

position. 

B.

The Act does not violate the Contract Clause of the United 

States Constitution. 

The Contract Clause provides: “No State shall . . . pass 

any . . . Law impairing the Obligation of Contracts.” (U.S. Const., 

art. I, § 10, cl. 1.) Although absolute on its face, “the Contract 

Clause does not operate to obliterate the police power of the 

States.” (Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 

234, 241.) 

Sharpe and Precise cannot demonstrate a change in the 

law that substantially impaired a contractual relationship. (See 

Energy Reserves Group v. Kansas Power & Light Co. (1983) 459 
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U.S. 400, 411.) The Act’s licensing requirements were in 

existence before Precise contracted with the department. 

(Merrifield v. Lockyer, supra, 547 F.3d at p. 981.) “ ‘One whose 

rights . . . are subject to state restriction, cannot remove them 

from the power of the State by making a contract about them.’ ” 

(Allied Structural Steel Co. v. Spannaus, supra, 438 U.S. at pp. 

241-242.) In any event, because the department itself requires 

Sharpe and Precise to be licensed under the Act, they fail to 

persuade us that any contractual obligations are rendered 

“invalid, or release[d] or extinguishe[d]” by the Act. (Home 

Building & Loan Ass’n. v. Blaisdell (1934) 290 U.S. 398, 431.)

DISPOSITION

The judgment is affirmed. The Board is entitled to its costs 

on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
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_______________________

BURNS, J. 

We concur:

____________________________

SIMONS, ACTING P.J. 

____________________________

NEEDHAM, J.

A162226