BILL ANALYSIS Ó AB 2362 Page 1 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 AB 2362 Page 2 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 AB 2362 Page 3 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. AB 2362 Page 4 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.) AB 2362 Page 5 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 AB 2362 Page 6 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)) AB 2362 Page 7 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 AB 2362 Page 8 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 AB 2362 Page 9 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. AB 2362 Page 10 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. AB 2362 Page 11 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 AB 2362 Page 12 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