BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2362


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          Date of Hearing:   April 12, 2016


           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS


                                  Luis Alejo, Chair


          AB 2362  
          (Chu) - As Amended March 18, 2016


          SUBJECT:  Common interest developments:  pesticide application


          SUMMARY:  Requires a homeowners association (HOA) to provide  
          notification, as specified, to homeowners or tenants in a common  
          interest development (CID) if the homeowners association applies  
          pesticides without a licensed pest control operator.    
          Specifically, this bill:  


          1)Makes legislative findings stating that existing law requires  
            landlords to notify tenants of a rental unit when pesticides  
            are applied without a pest control operator, and stating that  
            it is the intent of this bill to enact similar notification  
            requirements on HOAs at CIDs.


          2)Requires an HOA, or its authorized agent, that applies any  
            pesticide to a separate interest or to the common area of a  
            CID, without a licensed pest control operator, to provide the  
            owner or the tenant of an affected separate interest and, if  
            making broadcast applications or using total release foggers  
            or aerosol sprays, the owner or tenant in an adjacent separate  
            interest that could reasonably be impacted by the pesticide  
            use, with written notice that contains the following  
            statements and information using words with common and  








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            everyday meaning:


             a)   The pest or pests to be controlled;
             b)   The name and brand of the pesticide product proposed to  
               be used;


             c)   The approximate date, time, and frequency with which the  
               pesticide will be applied;


             d)   A statement that includes, "CAUTION - PESTICIDES ARE  
               TOXIC CHEMICALS," and that gives specified information  
               about the risks of pesticide exposure; symptoms of  
               pesticide illness; and, contact information for the  
               California Poison Control System, the County Health  
               Department, and the Department of Pesticide Regulation;  
               and,


             e)   A statement that reads, "The approximate date, time, and  
               frequency of this pesticide application is subject to  
               change."





          3)Requires, at least 48 hours prior to application of the  
            pesticide to a separate interest, the HOA or its authorized  
            agent to provide individual notice to the owner of the  
            separate interest, as well as notice to any tenant of the  
            separate interest, as well as any owner or tenant occupying  
            any adjacent separate interest that is required to be  
            notified. 


          4)Requires notice to tenants of separate interests to be  








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            provided in at least one of the following ways:


             a)   First-class mail;
             b)   Personal delivery to an occupant 18 years of age or  
               older; or,


             c)   Electronic delivery, if an electronic mailing address  
               has been provided by the tenant.





          5)Authorizes, upon receipt of written notification, the owner of  
            the separate interest or the tenant to agree in writing or, if  
            notification was delivered electronically, the tenant may  
            agree through electronic delivery, to allow the HOA or  
            authorized agent to apply a pesticide immediately or at an  
            agreed upon time.


          6)Authorizes, prior to receipt of written notification, the HOA  
            or authorized agent to agree orally to an immediate pesticide  
            application if the owner or occupant requests that the  
            pesticide be applied before the 48-hour notification of the  
            pesticide product proposed to be used.


          7)Requires, if an owner or occupant enter into an oral agreement  
            for immediate pesticide application, the HOA or authorized  
            agent, no later than the time of pesticide application, to  
            leave the written notice in a conspicuous place in the  
            separate interest or at the entrance of the separate interest  
            in a manner in which a reasonable person would discover the  
            notice.










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          8)Requires, if any owner of a separate interest or occupant in  
            an adjacent separate interest is also required to be notified,  
            the HOA or authorized agent to provide that person with this  
            notice as soon as practicable after the oral agreement is made  
            authorizing immediate pesticide application, but in no case  
            later than commencement of application of the pesticide.


          9)Requires that a copy of a written notice be attached to the  
            minutes of the board meeting of the HOA immediately subsequent  
            the application of the pesticide.  


          EXISTING LAW:  


          1)Requires a registered structural pest control company to  
            provide the owner, or owner's agent, and tenant of the  
            premises for which work is to be done with clear written  
            notice, as specified, at least 48 hours prior to application  
            of pesticides, except as provided.  Further requires this  
            notice to contain the following statements and information  
            using words with common and everyday meaning:
             a)   The pest to be controlled;
             b)   The pesticide or pesticides proposed to be used and the  
               active ingredient or ingredients;


             c)   A statement which, among other things, includes  
               "CAUTION-PESTICIDES ARE TOXIC CHEMICALS;" information  
               regarding possible symptoms of pesticide illness; and,  
               contact information for further information and to report  
               pesticide illness; and,


             d)   If a contract for periodic pest control has been  
               executed, the frequency with which the treatment is to be  
               done.  (Business & Professions Code (BPC) § 8538.)









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          2)Requires a landlord of a residential dwelling unit to provide  
            each new tenant that occupies the unit with a copy of the  
            notice provided by a registered structural pest control  
            company if a contract for periodic pest control service has  
            been executed.  (Civil Code § 1940.8.)

          3)Requires, at least 24 hours prior to the application of a  
            pesticide without a licensed pest control operator to a  
            dwelling unit, a landlord to provide, by one of four specified  
            ways, the tenant of that dwelling unit and any tenant in an  
            adjacent dwelling unit with a specified written notice,  
            similar to that required under BPC § 8538. (Civil Code §  
            1940.8.5(b)(1) and (2))


          4)Authorizes, upon receipt of written notification, the tenant  
            to agree in writing or through electronic delivery to allow  
            the landlord or authorized agent to apply a pesticide  
            immediately or at an agreed upon time. (Civil Code §  
            1940.8.5(b)(3)(A))

          5)Requires, before application of any pesticide to a common area  
            without a licensed pest control operator, excluding routine  
            pesticide applications, a landlord to post a specified written  
            notice in a conspicuous place in the common area in which a  
            pesticide is applied. (Civil Code § 1940.8.5(c)(1))  

          6)Provides that if a pest poses an immediate threat to health  
            and safety, thereby making compliance with notification prior  
            to the pesticide application unreasonable, a landlord must  
            post notification as soon as is practicable, but not later  
            than one hour after the pesticide is applied.  (Civil Code §  
            1940.8.5(c)(2)(C))  

          7)Requires a landlord that routinely applies pesticide in a  
            common area on a set schedule without a licensed pest control  
            operator to provide a tenant in each dwelling unit with a  
            specified written notice, including the schedule pursuant to  








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            which the pesticide will be routinely applied. (Civil Code §  
            1940.8.5(d)(1))

          8)Exempts any landlord or HOA from providing notice of pesticide  
            use without a pest control operator in a separate interest or  
            in common areas within a CID.  (Civil Code §  
            1940.8.5(b)(1)(4)(A); (c)(4); and (d)(2)(D))

          9)Governs, under the Davis-Stirling Common Interest Development  
            Act, CIDs.  (Civil Code § 4000, et seq.)

          10)Defines "common interest development" as a community  
            apartment project, a condominium project, a planned  
            development, or a stock cooperative. (Civil Code § 4100)


          11)Requires registered structural pest control operators to  
            leave in a conspicuous location a written notice identifying  
            the common, generic or chemical name of each pesticide applied  
            within or around a structure, and that such notice may be  
            provided by a door hanger, invoice, billing statement or other  
            similar written document which contains the registered  
            company's name, address, and telephone number.  (California  
            Code of Regulations (CCR) Title 16, §1970.4.)


          12)Requires a pest control operator to assure that the operator  
            (including an HOA) of the property receives notice, which  
            includes specified information, of the scheduled application.  
            (CCR Title 3, §6618(b(1))


          13)Requires the operator of property (including an HOA) to  
            assure that the above notice is given to all persons who are  
            on the property to be treated with pesticides, or who may  
            enter during the application or the period of time that any  
            restrictions on entry are in effect. (CCR Title 3,  
            §6618(b)(2))









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          FISCAL EFFECT:  Unknown.


          COMMENTS:  


          Need for the bill.  According to the author, "This bill seeks to  
          extend the regulations imposed under SB 328 (Hueso) which  
          requires landlords to provide tenants with notification of  
          pesticide use if a landlord or property manager applies  
          store-bought pesticides, the same as they would be obligated to  
          do under the Structural Pest Control Act if a landlord or  
          property manager hired a registered pest management professional  
          to do the same job? 


          Because of the particular way they are regulated, SB 328 does  
          not apply in the context of Home Owners Associations (HOAs).  
          Therefore, those living in a condominium or townhouse, for  
          example, are not afforded the same right to be notified when  
          pesticides are applied by a non-licensed professional. AB 2362  
          would close this gap by adding provisions that mirror SB 328 in  
          relation to HOAs. Doing this would ensure all tenants receive  
          the same protections, regardless of the type of housing unit  
          they rent."


          Pesticide use around dwellings:  According to the United State  
          Environmental Protection Agency (U.S. EPA), Americans use more  
          than a billion pounds of pesticides each year to combat pests on  
          farm crops, in homes, places of business, schools, parks,  
          hospitals, and other public places.  In its Citizen's Guide to  
          Pest Control and Pesticide Safety, the U.S. EPA states, "One of  
          the greatest causes of pesticide exposure to humans is the use  
          of pesticides in and around the home.  Anyone can buy a wide  
          variety of "off the shelf" pesticide products to control weeds,  
          unwanted insects, and other pests.  No special training is  
          required to use these pesticides.  Yet, many of the products can  








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          be hazardous to people, especially when stored, handled,  
          applied, or disposed of improperly.  The results achieved by  
          using chemical pesticides are generally temporary, and repeated  
          treatments may be required?  If used incorrectly, home-use  
          pesticide products can be poisonous to humans."


          Potential health impacts of pesticide exposure:  The U.S. EPA  
          reports that the adverse effects of pesticide exposure range  
          from mild symptoms of dizziness and nausea to serious, long-term  
          neurological, developmental and reproductive disorders.   
          However, according to the study Acute Illnesses Associated with  
          Pesticide Exposure at Schools, published in 2005 by the American  
          Medical Association, pesticide poisoning is a commonly  
          under-diagnosed illness. The clinical findings of acute  
          pesticide poisoning are rarely pathognomonic, but instead  
          resemble acute upper respiratory tract illness, conjunctivitis,  
          gastrointestinal illness, and other conditions.  


          Children are at a greater risk from exposure to some pesticides  
          for a number of reasons.  Children's internal organs are still  
          developing and maturing and their enzymatic, metabolic, and  
          immune systems may provide less natural protection than those of  
          an adult. There are critical periods in human development when  
          exposure to a toxin can permanently alter the way an  
          individual's biological system operates. In addition, children  
          may be more likely to be exposed to certain pesticides because  
          they behave differently than do adults. For instance, children's  
          behaviors, such as playing on the floor or on the lawn where  
          pesticides are commonly applied, or putting objects in their  
          mouths, increase their chances of exposure to pesticides. 


          Notification requirements for pesticide applications:  
          Notification of pesticide application enables those potentially  
          affected to take precautions to avoid contact or exposure to  
          pesticides.  Since 1984, California law has required pest  
          control companies to provide notice to the owner, or the owner's  








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          agent, and residents when applying pesticides at a property.   
          The notice must be given prior to the application of pesticides,  
          be clearly written, and, include details about the pesticide  
          being applied, contact information for authorities for  
          additional information and to report pesticide illness, and  
          other information.  SB 2143 (Bowen, Chapter 234, Statutes of  
          2000) added to these notification requirements that landlords  
          must provide tenants with copies of the notices when the  
          landlord contracts with a pest control company for periodic pest  
          control service.


          Expanding upon the requirement that pest control companies  
          provide notification to owners and tenants of application, SB  
          398 (Hueso, Chapter 278, Statutes of 2015) requires landlords to  
          provide similar notice to tenants if she or he applies a  
          pesticide without the use of a registered pest control company.   
          SB 398 includes specific notification requirements for landlords  
          applying pesticides to individual dwelling units, non-routine  
          application in common areas, and routine application in common  
          areas.  SB 398 specifically exempts HOAs from having to notify  
          if pesticides are applied without a pest control operator in a  
          CID.  


          Common interest developments (CIDs) and homeowners associations  
          (HOAs):  CIDs, also referred to as common interest communities  
          and common interest realty associations, are a type of  
          development with common areas, such as playgrounds, parking  
          lots, and swimming pools.  CIDs come in many structural types,  
          architectural styles, and sizes, such as retirement communities,  
          recreational communities, high-rise buildings, equestrian  
          communities, lake-centered developments, golfing communities,  
          artists' lofts, etc.  They can be single family detached houses,  
          two story townhouses, apartment-like buildings, or be in other  
          forms.  A CID can be a 2-unit development or a 20,000-unit  
          development.  










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          Despite the differences that may exist among CIDs, all CIDs are  
          similar in that they allow individual owners the use of common  
          property and facilities and provide for a system of  
          self-governance through an HOA within the CID.  According to the  
          Department of Real Estate, the most common type of HOA is a  
          nonprofit mutual benefit corporation.  This is a corporation in  
          which the members of the corporation (homeowners) vote for a  
          board of directors to manage the CID and its residents.   
          However, some associations, usually the older ones, are  
          unincorporated associations.  In many ways, unincorporated  
          associations are treated the same as mutual benefit corporations  
          under California law.


          Because CIDS and HOAs are governed under the Davis-Stirling Act  
          (Civil Code § 4000, et seq.), with unique requirements, and  
          landlord and tenant requirements fall under different statutes  
          and have different requirements, requiring HOAs to notify for  
          pesticide application in CIDs was not included in SB 398.    





          This bill seeks to close that gap.  While the main notification  
          requirements for both HOAs under this bill and landlords under  
          current law are similar, there are some differences.  These  
          include requiring 48 hours for notification versus 24 hours;  
          allowing the notice to be posted in a "conspicuous place" in  
          non-CID circumstances; requiring personal delivery to an  
          occupant 18 years of age or older versus in a CID to "someone of  
          suitable age" or under the door; and not having specific  
          provisions for emergency applications in CIDs.  The supporters  
          of the bill argue that these differences are to reflect the  
          unique requirements on and structure of CIDs and HOAs; to  
          provide clarity; and to provide additional protections for those  
          potentially affected by the application of pesticides.










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          Double referral:  This bill has been double referred.  Should  
          this bill pass out of the Assembly Environmental Safety and  
          Toxic Materials Committee, it will be referred to the Assembly  
          Judiciary Committee. 


          Committee amendments:  In order to provide clarity and  
          consistency, the Committee may wish to amend the bill as  
          follows:


             1)   Clarify that all notifications of pesticide application,  
               as required by the bill, are provided to tenants, if there  
               are any, and not just to owners of units in a CID.


             2)   Provide consistency throughout the bill by referring to  
               a person, other than the owner, living in the separate  
               interest as "tenant," not as "occupant."  


             3)   On Page 4, line 14, Section 4777(b)(2), clarify that  
               notice is also required for application of pesticides in  
               the common area.


          REGISTERED SUPPORT / OPPOSITION:




          Support  


          Regional Asthma Management and Prevention (sponsor)


          Center for California Howeowner Association Law









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          Esperanza Community Housing


          Koreatown Immigrant Workers Alliance (KIWA)


          Pesticide Action Network




          Opposition


          None on file.




          Analysis Prepared by:Shannon McKinney / E.S. & T.M. / (916)  
          319-3965