BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:April 28, 2014 |Bill No:SB | | |1244 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Ted W. Lieu, Chair Bill No: SB 1244Author:Lieu As Amended: April 24, 2014Fiscal: Yes SUBJECT: Structural Pest Control Board. SUMMARY: Extends until January 1, 2019, the provisions establishing the Structural Pest Control Board and the term of the executive officer of the Board, and makes numerous technical, updating and correcting changes to the structural pest control law. Existing law: 1) Licenses and regulates structural pest control applicators, field representatives and operators, and structural pest control companies by the Structural Pest Control Board (SPCB) within the Department of Consumer Affairs (DCA) and repeals the SPCB on January 1, 2015. (Business and Professions Code (BPC) § 8500 et seq.) 2) Authorizes the SPCB to appoint an executive officer, subject to the approval of the director of DCA and repeals this provision on January 1, 2015. (BPC § 8528) 3) Requires any person, including limited liability companies (LLCs), to become licensed before performing structural pest control. (BPC § 8504) 4) Regulates the use of insecticides, pesticides, rodenticides, fumigants, and allied chemicals and substances. (BPC § 8505) 5) Defines methyl bromide, sulfur dioxide, propylene oxide, sulfuryl fluoride and aluminum phosphide as lethal fumigants. (BPC § 8505.1) SB 1244 Page 2 6) Requires that, at the request of the country agricultural commissioner, fumigators provide a notice of intent to fumigate to the commissioner. (BPC § 8505.5) 7) Allows, but places restrictions on, the fumigation of a single apartment within a larger structure. (BPC § 8505.6) 8) Requires that fumigators place warning signs warning of fumigation, and requires that the entire warning be printed in red on white background. (BPC § 8505.10) 9) Requires that fumigators use an adequate warning agent when using fumigants that lack warning properties. (BPC § 8505.12) 10)Defines "fumigator" as any individual licensed by the SPCB within the branch of pest control that includes fumigation. (BPC §§ 8505.14, 8560) 11)Prohibits any registered company from expressing an opinion or statement relating to the control of household pests until an inspection has been made. (BPC § 8514) 12)Allows an unlicensed individual to apply pesticides for training purposes, under the direct supervision of a licensed field representative or operator, for a maximum of 30 days. (BPC § 8551.5) 13)Requires written examinations and various written forms in several places throughout the BPC. (BPC §§ 8560, 8562, 8564, 8564.6, 8565, 8566, 8567, 8593.1, 8612, 8613) 14)Allows certain types of licensees (Branch 2) to choose to be certified in the handling, control, and removal of Africanized honey bees, and requires that the Board either develop or approve a program for the certification. (BPC § 8565.6) 15)Provides that all applicator licenses expire at 12 midnight three years from the date of issue, while operator and field representative licenses expire at 12 midnight on June 30 of every third year. (BPC §§ 8590, 8590.1) 16)Allows the SPCB or county agricultural commissioner, to cite, fine, and suspend the activity of licensees or registered companies for violations of the structural pest control law or any regulations adopted under that law or for specified provisions of the Food and SB 1244 Page 3 Agricultural Code, or any regulations relating to pesticides adopted under those laws. (BPC § 8617) 17)Requires that all complaints against licensees or registered companies be filed with the SPCB within two years after the act or omission, and four years in the case of fraud. Also requires the SPCB to file accusations within one year after the complaint has been filed or two years in the case of fraud. (BPC § 8621) 18)Provides that, where the SPCB has determined that a property that a registered company has worked on is not in compliance, the company has thirty days from the receipt of notice to bring the property into compliance. (BPC § 8622) 19)Provides that the SPCB can bring a disciplinary action against a registered company that fails to maintain records for a minimum of three years. (BPC § 8652) This bill: 1)Extends the operation of the SPCB and the authority to appoint an executive officer until January 1, 2019. 2)Removes limited liability companies (LLCs) from the definition of "person." 3)Adds a definition for "pesticide," which includes any spray adjuvant and any substance, or mixture of substances intended to be used for preventing, destroying, repelling, or mitigating any pest or organism. a) Replaces all references to substances with the term "pesticide" throughout the Act. 4)Eliminates sulfur dioxide and propylene oxide from the list of lethal fumigants. 5)Eliminates the provisions regarding the now impermissible practice of fumigating a single apartment within a larger complex. 6)Allows the text of fumigation warning signs to be printed in legible ink of any color, rather than just red on white. 7)Provides for an exception to the use of an adequate warning agent. Specifically, allows for the state regulatory authority to waive the use of chloropicrin when it may damage or contaminate the contents SB 1244 Page 4 of a structure. If waived, it must be documented in advance and must include alternative safety precautions. 8)Adds the requirement of a "3-Day Right to Cancel" in home solicitation contracts. 9)Extends the number of days an unlicensed individual, working for a registered company, may apply pesticides for training purposes from 30 days to 90 days. 10)Eliminates the use of written, paper, and hardcopy document references throughout the Act. 11)Eliminates the option for applicants to become certified in the control of Africanized honey bees and the requirement that the SPCB either develop or certify a program for the certification. 12)Changes the expiration date of applicator's licenses from 12 midnight three years from the date of issue to 12 midnight on June 30 of every third year. 13)Requires that actions brought pursuant to BPC § 8617 be commenced by the country agricultural commissioner within two years of the occurrence. Also requires that once the commissioner submits a completed investigation to the SPCB, the action be commenced within one year of the submission. 14)Allows the SPCB to grant extensions to companies required to bring noncompliant properties into compliance. 15)Defines "original applicator's license" as a license issued to someone that did not have a license during the prior licensing period, and defines a renewal applicator's license as a license issued to someone that did. 16)Allows individuals licensed as applicators to request an earlier expiration date and have their fees prorated. FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by Legislative Counsel. COMMENTS: SB 1244 Page 5 1.Purpose. This bill is one of six "sunset review bills" authored by the Chair of this Committee. Unless legislation is carried this year to extend the sunset dates for the SPCB and its executive officer they will be repealed on January 1, 2015. This bill extends those provisions to January 1, 2019, and makes a number of legislative changes regarding the SPCB reflected in the recommendations in the Committee's background paper. 2.Oversight Hearings and Sunset Review of Licensing Boards and Commission of DCA. In 2014, the Senate Business and Professions Committee and the Assembly Business, Professions and Consumer Protection Committee (Committees) conducted joint oversight hearings to review 9 regulatory entities: Bureau of Automotive Repair; Bureau of Home Furnishings and Thermal Insulation; Bureau for Private Postsecondary Education (BPPE); California Massage Therapy Certification program; California Board of Acupuncture; California Tax Preparers Program; Dental Hygiene Committee of California; Professional Fiduciaries Bureau; and Structural Pest Control Board. This Committee also reviewed the performance and effectiveness of the Community Interest Development Manager's Certification Program. The Committees began their review of the aforementioned licensing agencies in March and conducted two days of hearings and then more recently held a hearing on the BPPE. This bill, and the accompanying sunset bills, are intended to implement legislative changes as recommended by staff of the Committee's and which are reflected in the Background Papers prepared by Committee staff for each agency and program reviewed by the Committees for this year. 3.Review of the Structural Pest Control Board (SPCB), Issues Identified and Recommended Changes. The following are some of the major issues pertaining to the SPCB or areas of concern reviewed and discussed by the Committee during the review of the SPCB, along with background information concerning each particular issue. Recommendations were made by Committee staff regarding the particular issues or problem areas which needed to be addressed. a) Issue : Technical clean-up. Background : During the review of the SPCB, the Board submitted proposed legislation to clean up the existing laws governing the practice of structural pest control. The SPCB noted that existing law should be updated to recognize current technology. In addition, certain provisions in the structural pest control law are no longer applicable and need to be deleted or clarified. Other provisions require updating in order to meet the statute's SB 1244 Page 6 purpose. Still other provisions of the law contain similar or duplicative language causing inconsistencies in the interpretation or application of those provisions. The SPCB's proposal makes technical or non-substantive changes to certain provisions of the structural pest control law, deletes existing provisions from that law that are no longer applicable, and would delete or amend other provisions to support the legislative intent. The SPCB states that in 2011, the Board President established an Act Review Committee which was charged with reviewing the structural pest control law for revisions to modernize and streamline processes while maintaining a focus on consumer protection, as consumer protection is the highest priority of the Board. Since that time, the Act Review Committee held 18 public meetings throughout California and solicited input from its industry stakeholders and interested parties. The SPCB indicates it also solicited input and received participation from the Fumigation Enforcement Committee of the Department of Pesticide Regulations and the County Agricultural Commissioners. Ultimately the Act Review Committee submitted approximately 38 statutory recommendations to the SPCB which are reflected in the amendments to this bill. Recommendation : Committee staff recommended that the SPCB should work with staff to identify what updating changes should be made to the structural pest control law. The SPCB should assure the Committees that all concerned individuals and interested parties have had an opportunity to express any concerns regarding the proposed changes, and that the concerns have been addressed, to the extent possible, by the SPCB. In its response to the Issues in the Committee's Background Paper, the SPCB submitted its recommendations for technical cleanup, and updating of the laws under its jurisdiction. [ The current language in this measure described in This Bill, Items 2-16, above, reflects these recommended changes .] b) Issue : Fee increases for the implementation of Computer Based Testing. Background : In its Sunset Review Report, the SPCB states the intention to seek legislation to increase examination fees so that it can begin to implement Computer Based Testing (CBT). SB 1244 Page 7 The SPCB does not anticipate a budget deficit in the current year nor forecasts a budget deficit in fiscal years 2013-14 or 2014-15. However, the SPCB has indicted that it will be seeking legislation during the current Session to increase examination fees to support CBT. A proposal would increase the maximum fees that could be charged for the examinations, however, the actual fees for the examinations would be based on the actual costs to administer the examinations. According to the SPCB, the current cost to administer each examination is $37.50 under the DCA contract with the outside CBT vendor. If legislation to increase fees is approved, the SPCB would finalize a cost analysis and subsequently promulgate regulations possibly through a legislative BCP to support the SPCB's fully loaded costs to administer the examination program. The SPCB states that prior to the full implementation of CBT, the Board, in a joint effort with the DCA, is planning a pilot CBT offering in the early part of 2014, as part of its public policy analysis and review to substantiate operating expenses and equipment and personnel years. This will help the SPCB to understand the necessary levels at which the fees should be set, and further provide the justification for any BCPs related to the full implementation of CBT. The SPCB also indicates that it will continue to assess its fund condition to ensure that it does not operate in a deficiency during the CBT Pilot. The Pest Control Operators of California (PCOC) are sponsoring the CBT legislation, AB 1685 (Williams), introduced on February 14, 2014, which would raise the maximum fees that the SPCB could charge for examinations as follows: Operator examination fee: increase from $25 to $100 Field representative examination fee: increase from $15 to $75 Applicator examination fee: increase from $15 to $60 If approved, the increase in fees would be effective no later than January 1, 2015. At this point, the full impact of the proposed fee increases on licensing applicants is unknown. PCOC states that the fees will not impact applicants or impair the pest control industry in any manner. Recommendation : Committee staff recommended that the Committee appropriately consider any legislative proposals and their impact SB 1244 Page 8 upon applicants, the pest control industry, and SPCB revenues. [ The current language in this measure does not reflect any changes to structural pest control law regarding this issue, however, AB 1685 (Williams),which was introduced this year amends BPC § 8674 to increase the statutory limit on examination fees. ] a) Issue : Continued Regulation by the SPCB. Background : The health, safety and welfare of consumers are protected by the presence of a strong licensing and regulatory Board with oversight over the structural pest control industry. This SPCB has experienced significant transitions over the last five years. Specifically, moving from DCA to the Department of Pesticide Regulation in 2009 and then moving back to DCA in 2013 has greatly disrupted many of the SPCB's licensing, regulatory and disciplinary activities. However, it appears that the SPCB has successfully traversed the transitions and is making progress as a regulatory agency. The SPCB should be continued with a 4-year extension of its sunset date so that the Legislature may once again review whether the issues and recommendations in this Background Paper have been addressed. Recommendation : Committee staff recommended that the licensing and regulation of structural pest control continue to be regulated by the current Board members of the Structural Pest Control Board in order to protect the interests of the public and be reviewed once again in four years. [ The current language in this measure reflects this recommended change .] 4. Current Related Legislation. SB 1242 (Lieu, 2014) Amends the Automotive Repair Act and updates the sunset provisions for the Bureau of Automotive Repair. ( Status : This bill will also be heard before the BP&ED Committee during today's hearing.) SB 1243 (Lieu, 2014) Extends until January 1, 2017, the term of the Veterinary Medical Board, which provides for the licensing and registration of veterinarians and registered veterinary technicians and the regulation of the practice of veterinary medicine by the Veterinary Medical Board. The bill also extends the terms of the executive officer of the Veterinary Medical Board. This bill also SB 1244 Page 9 extends to January 1, 2019, the law regulating the practice of common interest development managers, and the law establishing the California Tax Education Council, which provides for the Council to register and regulate tax preparers. This bill also subjects the Board and programs to be reviewed by the appropriate policy committees of the Legislature. ( Status : This bill will also be heard before the BP&ED Committee during today's hearing.) SB 1245 (Lieu, 2014) Extends until January 1, 2019, the term of the Dental Hygiene Committee of California which provides for the licensing and regulation of dental hygienists. The bill also extends the term of the Committee's executive officer and subjects the Committee to be reviewed by the appropriate policy committees of the Legislature. ( Status : This bill will also be heard before the BP&ED Committee during today's hearing.) SB 1246 (Lieu, 2014) Extends until January 1, 2019 the term of the Acupuncture Board which provides for the licensing and regulation of doctors of acupuncture under the Acupuncture Licensure Act and subjects the board to be reviewed by the appropriate policy committees of the Legislature. ( Status : This bill will also be heard before the BP&ED Committee during today's hearing.) SB 1247 (Lieu, 2014) Extends until January 1, 2019 the term of the California Private Postsecondary Education Act of 2009, which provides for the regulation of private postsecondary educational institutions by the Bureau for Private Postsecondary Education in the Department of Consumer Affairs. The bill also extends the term of the Student Tuition Recovery Fund under the administration of the bureau, and subjects the bureau to review by the appropriate policy committees of the Legislature. ( Status : This bill will also be heard before the BP&ED Committee during today's hearing.) SUPPORT AND OPPOSITION: Support: Cardinal Professional Products Western Exterminator Company Opposition: None received as of April 23, 2014. SB 1244 Page 10 Consultant:Vincent Chee