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
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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