Case Information

*1 January 23, 1975 Opinion No. H- 504 Executive Director

Structural Pest Control Board Re: The applicability of the 313 East Anderson Lane fee provisions of Chevy Chase III the Texas Structural Pest Austin, Texas 78752 Control Act to employees

of persons who engage the business of Structural Pest Control.

Dear Mr. Chapman:

You have asked our opinion as to whether the Structural Pest Control Board may require employees of an applicant or a licensee (for or holding a license under the Texas Structural Pest Control Act) to pay the required fee if said persons’ duties consist entirely of on site sales, solicitations, or bids.

You particularize your opinion request by further observing:

Section 7(a) of the Texas Structural Pest Control Act authorizes the Structural Pest Control Board to collect from each applicant for a license a fee of between $5.00 and $15.00 for “each employee of the applicant who is engaged in structural pest control services. ”

The Texas Structural Pest Control Act, article 135b-6, V. T. C. S., requires persons to obtain a license before conducting such a business. Sec. 5(a), art. 135b-6. A temporary license may be obtained by those who engaged in such work prior to the effective date of the Act, and a two year grace period is *2 (H-504) provided within which such persons must fully qualify under the Act and pay the regular licensing fees required by the Act. Sec. 5(b).

Section 7(a) provides for the following fees:

Sec. 7(a) An applicant for an initial or renewal shall accompany his application with a fee of $50 for each place of business located in the State and a fee of between $5 and $15, as determined by the board, for each employee of the applicant who is engaged in structural pest control services. This is not to apply to those locations serving only as answering for a licensed business.

Section 2 defines those persons who are subject to the provisions of the Act, as those “engaged in the business of structural pest control, ” and, as such, must accordingly secure the license required by section 5 and pay the licensing fee required by section 7(a):

(a) For purposes of this Act a person shall be deemed to be engaged if he engages in, offers in,

advertises for, solicits, or performs any of the following for compensation:

(1) identifying infestations or making inspections for the purpose of identifying or attempting to identify infestations of arthropods (insects, spiders, mites, ticks, and related pests), wood-infesting organisms, rodents, weeds, nuisance birds, and any other obnoxious or u,ndesirable animals which may infest households, railroad cars, ships, docks, trucks, airplanes, other structures, or the contents or the immediate adjacent outside areas;

(2) naking inspection reports, recommendations, estimates, or bids, whether oral or written, with respect to such infestations;

. . - _

(3) making contracts, or submitting bids for, or performing designed to prevent, control, eliminate such infestations by the use of insecticides, rodenticides, fumigants, or allied chemicals pesticides, or substances or mechanical devices.

(b) as used in this Act, “person” means an individual, firm, partnership, corporation, association, or other organization, or any combination or any type of business entity. (Emphasis supplied)

It is therefore clear that persons who, in the course of a structural pest control operation, solicit and sell pest control services or make of the cost of such services and bid for the performance of these services, perform that come within the ambit of the Act.

However, ll(3) excludes “employees” of licensees from section the operation of the Act, providing:

Sec. 11 The provisions of this Act shall not apply to nor shall the following persons be deemed to be in the business of structural pest control:

. . . .

(3) an employee of a person licensed the business of structural pest control; . . .

Accordingly, an employee of one engaged in the business of structural pest control who solicits and sells pest control services and who estimates the cost of such work and submits bids for its performance, does not have to secure the license or pay the fees required by section 7(a). However, the holder of a license or an applicant therefore must pay the $5.00 to $15.00 fee, as required by section 7(a), for each employee who engages in the selling of pest control services as a part of the employers total license fee.

SUMMARY Employees, who solicit and sell structural pest control services for a person engaged in the business of structural pest control, do not have to be licensed under the Texas Structural Pest Control Act or pay the licensing fees provided for by the Act. However, their employer must pay the $5.00 to $15.00 fee for such employee as required by section 7(a) of the Act.

Very truly yours, n u Attorney General of Texas DAVID M. KENDALL. First Assistant

C. ROBERT HEATH, Chairman

Opinion Committee