BILL ANALYSIS SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 183 SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: lowenthal VERSION: 4/13/09 Analysis by: Mark Stivers FISCAL: YES Hearing date: April 21, 2009 SUBJECT: Carbon monoxide devices DESCRIPTION: This bill requires that a carbon monoxide device be installed in existing dwellings intended for human occupancy that have a fossil fuel burning appliance, a fireplace, or an attached garage and authorizes the adoption of building standards to require the installation of carbon monoxide devices in new dwellings intended for human occupancy. ANALYSIS: The California Building Standards Law establishes the California Building Standards Commission (BSC) and the process for adopting state building standards. Under this process, relevant state agencies propose amendments to model building codes, which the BSC must then adopt, modify, or reject. The Department of Housing and Community Development (HCD) is the relevant state agency for residential building standards. Building standards are prospective in that they only to apply to new construction or to existing buildings that undergo alteration or rehabilitation. In a few instances, however, the Legislature has applied building standard-like requirements to existing buildings. Current law requires that all water heaters in existing residential structures be braced, anchored, or strapped to resist falling or horizontal displacement due to earthquake motion. Current law also requires that smoke detectors be installed in all existing multifamily residential dwellings and in single family dwellings which are sold. To comply with the smoke detector statute, an affected residential SB 183 (LOWENTHAL) Page 2 property owner must install a smoke detector approved and listed by the State Fire Marshal. With respect to multifamily rental housing, the smoke detector must be operable at the time that a tenant takes possession. The tenant is then responsible for notifying the owner if the smoke detector becomes inoperable. The owner must correct any reported deficiencies in the smoke detector but is not in violation of the law if he or she has not received notice of any deficiency. An owner may enter the unit for the purpose of installing, repairing, testing, and maintaining the smoke detector provided that standard notice is provided. Failure to comply is an infraction punishable by a maximum fine of $200 for each offense. With respect to single-family housing, a seller must provide a buyer as soon as practicable prior to the sale with a written statement indicating that the home is in compliance with the smoke detector statute. Real estate agents and other agents to the transaction, however, are not required to monitor or ensure compliance with the law. Moreover, third-party agents to the transaction are not held liable for any error, inaccuracy, or omission relating to the disclosure, except that a real estate agent may be held liable where he or she participates in the making of the disclosure with actual knowledge of the falsity of the disclosure. The exclusive remedy for failure to comply is an award of actual damages up to $100. A transfer of title may not be invalidated on the basis of a failure to comply. This bill requires that a carbon monoxide device be installed in existing dwellings intended for human occupancy that have a fossil fuel burning appliance, a fireplace, or an attached garage. Specifically, the bill: Defines a carbon monoxide device as a device designed to detect carbon monoxide and produce a distinct, audible alarm. The device must be tested and certified by a nationally recognized testing laboratory approved by the State Fire Marshall and come in one of the following forms: ? Battery-powered. ? Plug-in with a battery backup. ? Hard wired in to the dwelling's electrical system with a battery backup. ? Connected to a monitoring system via a panel. ? Combined with a smoke detector into a single unit if the SB 183 (LOWENTHAL) Page 3 alarm clearly differentiates between smoke and carbon monoxide. Requires the State Fire Marshall to develop a process for the approval and listing of carbon monoxide devices. The process must include consideration of the effectiveness and reliability of the devices, including their propensity to record false alarms. Allows the State Fire Marshall to charge a fee to manufacturers of carbon monoxide devices to cover the costs of the approval and listing program and HCD's costs to develop building standards related to carbon monoxide devices. Prohibits the marketing, distribution, and sale of carbon monoxide devices that are not listed and approved by the State Fire Marshall. Requires that an approved carbon monoxide device be installed in every single-family dwelling, factory-built home, apartment, condominium, duplex, lodging house, dormitory, hotel, motel, stock cooperative, or time-share unit that has a fossil fuel burning appliance, a fireplace, or an attached garage according to the following schedule: ? By January 1, 2011 in all single-family homes. ? By January 1, 2012 for all other dwelling intended for human occupancy. Authorizes HCD to suspend enforcement of the deadlines described above by up to six months if it determines, in consultation with the State Fire Marshall, that there is not a sufficient amount of tested and approved devices to meet the requirements of the bill. Exempts dwellings owned by the state, the University of California, or a local government. Allows a local government to adopt an ordinance requiring installation of carbon monoxide devices if the ordinance is consistent with this bill. Provides that failure to install an approved device by the required deadline is an infraction. An owner shall first be given a 30-day notice to correct the violation and thereafter is subject to a fine of $200 for each offense. Such fines are SB 183 (LOWENTHAL) Page 4 levied by local fire marshals or fire departments or, in cases where the local government has adopted an ordinance to that effect, by the local building or code enforcement department. Provides that a seller's civil liability for failing to install a required device is limited to actual damages not to exceed $100, plus any court costs and attorney's fees. No transfer of title shall be invalidated for a seller's failure to comply. Requires the owner of a rental dwelling to maintain one or more carbon monoxide devices within the unit. The device must be operable at the time that the tenant takes possession. The tenant is then responsible for notifying the owner if he or she becomes aware that the device is inoperable. The owner must correct any reported deficiencies in the device but is not in violation of the law if he or she has not received notice of any deficiency. An owner may enter a dwelling unit to install, repair, maintain, or test a device. The owner must give reasonable notice and enter during normal business hours except in case of an emergency. Revises the statutory transfer disclosure statement that the seller of a manufactured home or a one- to four-unit residential property must provide to a buyer by 1) requiring the seller to check off whether or not the property has one or more carbon monoxide devices; 2) adding a footnote to the form advising buyers that installation of a carbon monoxide device is not a precondition of sale; and 3) requiring a seller to certify, as opposed to a check-off on the list of present items, that the property is in compliance with laws requiring smoke detectors and the bracing of water heaters. Authorizes HCD, after consultation with the State Fire Marshall, to propose building standards requiring the installation of carbon monoxide devices in new dwellings intended for human occupancy. Provides that if building standards for carbon monoxide devices are updated after July 1, 2010, a building owner shall not have to install a new device unless a building permit for work in excess of $1000 is requested. COMMENTS: 1.Purpose of the bill . The Air Resources Board estimates that SB 183 (LOWENTHAL) Page 5 every year in California carbon monoxide poisoning accounts for between 30 and 40 deaths, between 175 and 700 emergency room and hospital visits, and possibly thousands of illnesses. According to the author, these deaths and illnesses are preventable through the use of carbon monoxide devices. The author further states that carbon monoxide devices provide a vital, highly effective, and low-cost protection against carbon monoxide poisoning. Studies show that equipping every home with two carbon monoxide devices cuts accident-related costs by 93 percent. Eighteen states and a number of large cities have already passed laws mandating the use of carbon monoxide devices. The author believes that adopting such a mandate in California will significantly improve public health. The existing building standards process can apply such a mandate to newly-constructed units, but an act of the Legislature is necessary to require installation of carbon monoxide devices in existing homes. 2.Hearing results . On November 27, 2007, the Senate Transportation and Housing Committee conducted an informational hearing on the topic of preventing carbon monoxide poisoning. Upon conclusion of the hearing, committee staff made the following findings: Carbon monoxide poisoning significantly impacts the public health, resulting in dozens of fatalities, hundreds of hospitalizations, and thousands of illnesses in California each year. Carbon monoxide poisoning occurs most frequently as a result of the improper installation or maintenance of furnaces and stoves in the home, but also is commonly the result of the improper use of grills, generators, and camping equipment indoors or of idling engines in attached garages. Carbon monoxide poisoning is of equal if not greater concern in older homes due to the existence of older appliances or the lack of central heating. Carbon monoxide poisoning is generally preventable through better education of consumers and improved maintenance of combustion appliances. When carbon monoxide does enter a home, carbon monoxide devices can and do alert the residents and prevent or significantly decrease the severity of a poisoning. With respect to the technology used for carbon monoxide devices, there may be room for improvement. Any legislation to require the installation of carbon SB 183 (LOWENTHAL) Page 6 monoxide devices in homes would need to provide guidance on the number of devices required and where they should be placed. Any legislative mandate must be coupled with a public campaign that educates consumers on the hazards of carbon monoxide poisoning, the requirements of the law, and the need to replace devices at the end of their useful life. Emergency service providers must also receive training in response protocols for possible carbon monoxide poisoning. This bill addresses many of the findings from the hearing in that it seeks to prevent carbon monoxide poisoning through the required use of carbon monoxide devices, covers older homes, ensures equipment quality by requiring installation of devices approved and listed by the State Fire Marshall, and partially addresses the issue of placement of devices by authorizing the adoption of building standards for new units. The bill does not include an education component for either consumers or emergency service providers. 1.Costs and benefits . A quick search on the internet found carbon monoxide devices ranging in price from $18 to hundreds of dollars, with many models offered in the $20-$40 range. Using this latter range, the total cost of purchasing one device for each of the roughly 13 million households in California would range from $260 to $520 million. Homes may require more than one device, which would increase the total cost accordingly. Carbon monoxide devices are considered to have a useful life of four to seven years, meaning that dwelling owners would be required to replace their devices at some interval. On the other hand, a carbon monoxide device mandate has the potential to significantly reduce the 30 to 40 deaths that occur each year in California due to unintentional carbon monoxide poisoning. Additional societal savings would result from reduced hospital visits and disabilities that result from carbon monoxide poisoning and the lost productivity and wages that accompany them. 2.Recent actions of the International Code Council . In September 2008, the International Code Council, an entity that adopts and publishes model codes which are the basis for many state building codes including California, added a new section to its International Residential Code requiring builders of newly-constructed one- and two-unit dwellings that have SB 183 (LOWENTHAL) Page 7 fuel-fired appliances or attached garages to install an approved carbon monoxide device outside of each separate sleeping area in the immediate vicinity of bedrooms. In addition, the new section requires installation of a carbon monoxide device in existing dwellings that have fuel-fired appliances or attached garages when work requiring a building permit occurs. While the addition of this section to a model code does not create a requirement by itself and does not bind any state to include this section in its own codes, it indicates that there is some level of consensus within the code community that carbon monoxide monitors protect public safety and are cost-effective and reliable. HCD plans to adopt this requirement for newly-constructed one- and two-unit dwellings in its next code revision cycle and is considering applying it to other residential occupancies as well, such buildings of three or more units, hotels, and dorms. 3.Previous legislation . The author of this bill authored a similar piece of legislation last year. Governor Schwarzenegger vetoed SB 1386, stating: While I am certainly concerned with the health and safety of Californians, this bill is an undesirable approach. Building standards should not be statutory. The Building Standards Commission (BSC) was created to ensure an open public adoption process allowing experts to develop standards and periodic updates to the building codes. Placing building standards in statute rather than regulation circumvents the existing state regulatory adoption process and excludes the input of safety and construction experts. Smoke detectors in homes were approved by the BSC after a process of review of the safety, need, and reliability of the product. This process should be utilized for carbon monoxide devices. Additionally, product reliability is an issue that has also affected attempts to require carbon monoxide devices through national building codes. The International Code Council, which writes a national model building code, recently rejected two proposals to require the installation of carbon monoxide devices in new residential dwellings, citing the lack of clear direction for placement of the devices and the propensity for false alarm indications. A recent test study indicated that alarm technology is not SB 183 (LOWENTHAL) Page 8 adequately reliable, resulting in false alarms or no alarm at all. In an attempt to address the Governor's concerns, this bill differs from SB 1386 in that the mandate applies only to owners of existing dwellings, over which state agencies that adopt building standards have no jurisdiction. The author will defer to the current building standards process for new construction. In addition, the author points out that the national standards for carbon monoxide devices were recently strengthened and that concerns about reliability have largely subsided. 4.Guidance needed for the number and placement of devices in existing dwellings . One of the findings from the committee's 2007 hearing was that any legislation to require the installation of carbon monoxide devices should provide guidance on the number of devices required and where they should be placed. By allowing for the adoption of building standards, this bill allows HCD to provide such guidance with respect to new construction. The bill, however, does not provide such guidance for the owners of existing dwellings, except to say that the devices should be installed in accordance with the manufacturer's instructions, which may encourage the purchase of more devices than necessary. While it is difficult to set such standards in statute, the committee may wish to consider an amendment to require that the owners of existing dwellings install devices in a manner consistent with building standards applicable to new construction or the manufacturer's instructions, if it is technically feasible to do so. 5.Differences with the smoke detector mandate . Current law requires that smoke detectors be installed in all single-family dwellings prior to sale. To ensure that this requirement is met, current law requires a seller to provide a buyer prior to sale with a written statement indicating that the home is in compliance with the smoke detector statute. This bill takes a different approach for carbon monoxide devices. The mandate applies to all homeowners as of January 1, 2011, regardless of whether or not the home is sold. While a seller must disclosure whether or not the home has a carbon monoxide device, installation of a device is not a precondition of sale, and the device need not be installed as required. This approach is the result of the author's SB 183 (LOWENTHAL) Page 9 negotiations with the California Association of Realtors, which dislikes point-of-sale requirements. 6.Technical amendments . On page 16, line 20 after "2075" insert "or successor standards" On page 17, line 8 strike "17926.3" and insert "17926.2" On page 18, lines 7-8 strike ", efficiency dwelling unit, guest room, and suite" and insert "intended for human occupancy" On page 18, line 10 strike "single station" On page 18, line 28 strike "17926.3" and insert "17926.2" On page 18, line 30 strike "17926.3" and insert "17926.2" On page 18, lines 32-33 strike "consistent with the intent of the Carbon Monoxide Poisoning Prevention Act of 2009" with "to require the installation of carbon monoxide devices in dwellings intended for human occupancy" On page 19, strike lines 5-9 and insert "(b) If the California Building Standards Commission adopts or updates building standards relating to carbon monoxide devices, the owner or" On page 19, line 11 strike "regulations or" 9. Double referral . The Senate Rules committee has double-referred this bill to both this committee and the Judiciary Committee. POSITIONS: (Communicated to the Committee before noon on Wednesday, April 15, 2009) SUPPORT: California Coalition for Children's Safety & Health (sponsor) One individual OPPOSED: None received.