BILL ANALYSIS Ó
AB 2362
Page 1
Date of Hearing: April 26, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2362
(Chu) - As Amended April 14, 2016
As Proposed to be Amended
SUBJECT: COMMON INTEREST DEVELOPMENTS: PESTICIDE APPLICATION
KEY ISSUE: WHEN A HOMEOWNER ASSOCIATION HIRES SOMEONE WHO IS
NOT A LICENSED PEST CONTROL OPERATOR TO APPLY PESTICIDES IN AND
AROUND A COMMON INTEREST DEVELOPMENT, SHOULD THE ASSOCIATION,
FOR HEALTH AND SAFETY REASONS, BE REQUIRED TO PROVIDE
POTENTIALLY AFFECTED RESIDENTS WITH THE SAME LEVEL OF
NOTIFICATION OF PESTICIDE USE THAT IT WOULD BE REQUIRED TO
PROVIDE IF IT HAD HIRED A LICENSED PEST CONTROL OPERATOR?
SYNOPSIS
Existing law requires that a licensed pest control operator
(PCO) provide a specified written notification to homeowners
prior to administering pesticide treatment when such treatment
might potentially expose the person and his or her family to
pesticides. However, the same notices are not required to be
given when someone who is not a PCO applies pesticides.
Therefore, when a homeowners' association (HOA) or its
authorized agent, in response to a pest problem, employs someone
other than a licensed PCO to administer the treatment, or
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applies over-the-counter pesticides on its own, such
notification is not required, thus potentially leaving residents
of CIDs without information about their exposure to pesticides.
As a result, these residents lack information and are less able
to protect their families from potentially harmful pesticide
exposure.
This bill, sponsored by Regional Asthma Management and
Prevention (RAMP) and the Center for California Homeowner
Association Law, seeks to fix this discrepancy and ensure that
residents of CIDs receive the same useful notification of
pesticide use in and around their residences whether the
landlord applies the treatment himself, or hires a licensed PCO
to do so. It is closely modeled after SB 328 (Hueso), Ch. 278,
Stats. 2015, which sought to address this discrepancy in
residential rental properties, where a landlord/owner has
responsibility to maintain the premises and abate pests.
Specifically, this bill requires a HOA or its authorized agent
who applies a pesticide to a separate interest without a
licensed PCO to provide the owner or tenants of that unit with a
specified written notice, in most cases, 48 hours in advance.
The bill also requires the HOA or its agent, if making a
broadcast application or using total release foggers or aerosol
spray, to provide the same notice to any owner or tenant in an
adjacent dwelling unit that could reasonably be impacted by the
pesticide use. Among other things, the bill allows the owner or
tenant, prior to receiving the written notice prescribed by the
bill, to enter into an oral agreement with the HOA for immediate
pesticide application if he or she requests that the pesticide
be applied before 48-hour advance notice can be given. Proposed
author's amendments clarify the notification requirements with
respect to pesticide treatment in a common area of the CID, and
allow treatment of a common area in response to an immediate
threat to health or safety without 48-hour advance notice, as
long as some written notice is posted as soon as practicable but
not later than one hour after the treatment has been done. The
bill is supported by a coalition of public health advocates,
clean air advocates, and advocates for homeowners living in
CIDs. It has no formal opposition, although representatives of
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HOAs have raised some issues that the author has indicate he
will work on with the HOAs, should the bill be approved by this
Committee. This bill previously passed the Environmental Safety
Committee by a 5-1 vote.
SUMMARY: Requires homeowner associations (HOA) to provide to
residents of the common interest development (CID) specified
written notice of and information about the use of pesticides
inside a dwelling unit or in the common areas of the rental
property, if the association elects to apply the pesticide
itself or without hiring a licensed pest control operator to do
so. Specifically, this bill:
1)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
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
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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."
2)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.
3)Requires, at least 48 hours prior to application of the
pesticide to a common area, the HOA or its authorized agent,
where practicable, to post the written notice in a conspicuous
place in or around the common area in which the pesticide is
to be applied. Otherwise, if not practicable, requires the
association or its authorized agent to provide individual
notice to the owner and, if applicable, the tenant of the
separate interest or interests adjacent to the common area.
4)Provides that if the pest poses an immediate threat to health
and safety in the common area, thereby making compliance with
notification prior to the pesticide application unreasonable,
the association or its authorized agent shall post the written
notice in or around the common area as soon as practicable,
but not later than one hour after the pesticide is applied.
5)Requires notice to tenants of separate interests to be
provided in at least one of the following ways: (a)
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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.
6)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.
7)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 application.
8)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.
9)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 the pesticide application.
10)Requires that a copy of a written notice be attached to the
minutes of the board meeting of the HOA immediately subsequent
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to 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) Section 8538.)
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 Section 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
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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
Section 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 Section
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 Section 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
Section 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
which the pesticide will be routinely applied. (Civil Code
Section 1940.8.5 (d)(1).)
11)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 Section
1940.8.5 (b)(1)(4)(A); (c)(4); and (d)(2)(D).)
12)Requires registered structural pest control operators to
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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.)
13)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).)
14)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).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: According to the Environmental Protection Agency
(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
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 be hazardous to people, especially when stored,
handled, applied, or disposed of improperly. The results
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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."
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
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.
In recent years, the Legislature has expanded the breadth of
notice both registered pest control operators and others must
give to affected communities regarding the application of
pesticides. For example, the Healthy Schools Act of 2000 (AB
2260 (Shelley) Ch. 718, Stats. 2000) required school sites to
begin giving annual notices regarding pesticide use at schools
to both staff and the parents and guardians of enrolled pupils.
Similarly, SB 2143 ((Bowen) Ch. 234, Stats. 2000) required
landlords to provide tenants with copies of notices provided by
registered structural pest control operators when the landlord
contracts for periodic pest control service.
Last year, the Legislature enacted SB 328 (Hueso), Chapter 278,
Statutes of 2015, which required landlords to provide adequate
notice to tenants if the landlord applies a pesticide around the
rental premises without using the services of a registered pest
control company. SB 328 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 328, however, provided
that its rules and notification requirements were limited to the
actions of landlords with respect to rental property, and
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specifically did not apply to HOAs and common interest
developments.
According to the author: "Because of the particular way they are
regulated, SB 328 does not apply in the context of homeowner's
associations (HOAs). 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."
Ensuring notification of pesticide use in common interest
developments. CIDs are multi-unit communities characterized by
the following: (1) separate ownership of individual residential
units coupled with an undivided interest in common property; (2)
covenants, conditions, and restrictions (CC&Rs) that limit the
use of both separate interests and common property; and (3)
management of common property and enforcement of restrictions by
a homeowner's association (HOA). The Davis-Stirling Act
(commencing at Civil Code Section 4000) sets forth general rules
governing common interest developments. It should be noted that
CIDs are an increasingly popular form of housing in California
today, and that many homeowner associations (HOA) allow owners
of separate interests to rent to tenants under their CC&Rs.
Existing case law also establishes that the board of a HOA (and
its agents) are legally responsible for the maintenance of the
common areas of the CID (See Dover Village v. Jennison (2010)
191 Cal.App.4th 123; Affan v. Portofino HOA (2010) 189
Cal.App.4th 930), which is perhaps not surprising considering
that in virtually every CID, owners of separate interests pay
HOA dues for the express purpose of maintaining common areas.
According to proponents, this bill is needed to ensure that when
a HOA causes pesticides to be applied in and around a common
interest development (CID) without hiring a licensed pest
control operator (PCO) to perform the work, residents will
receive the same notification of pesticide use that is required
to be provided by a licensed PCO, if one had been hired by the
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HOA. When a licensed PCO is not employed to apply the
pesticides, it is often because the management has determined
that the problem can be treated using the same commercially
available pesticides used by PCOs for residential pest problems.
Under this bill, residents of CIDs would be required to be
notified of pesticide use, usually with 48-hour advance notice,
if possible, whenever pesticides are to be applied by the HOA in
a resident's separate interest or in the common areas of the
property. The written notification seeks to ensure that tenants
in rental property better understand the harms associated with
chemicals used in and around their residences, and gives them
advance warning to take precautionary measures, as necessary.
Notification rules pertaining to separate interests. The bill
permits a CID resident, upon receiving the 48-hour advance
written notification of upcoming pesticide use required by this
bill, to agree in writing with the HOA to apply the pesticide at
an agreed upon time. In addition, the bill allows the CID
resident, even prior to receiving the written notice prescribed
by the bill, to enter into an oral agreement with the landlord
for immediate pesticide application if he or she requests that
the pesticide be applied before 48-hour advance notice can be
given. These provisions preserve flexibility in situations
where the mandatory 48-hour advance notice period might thwart
the HOA's ability to engage in immediate treatment of pest
problems. In such cases, the bill still requires the oral
agreement to include the name and brand of the pesticide that is
proposed to be used, allowing the resident to take necessary
precautions, request a different type of treatment, or request
to have the treatment be applied at another time.
The bill also attempts to balance the rights of residents in
adjacent separate units when treatment involves either broadcast
applications, total release foggers or aerosol sprays (i.e.
types of treatments that are most likely to permeate or travel
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through air, affecting neighbors). Balance is necessary
because, Committee staff notes, an oral agreement for immediate
treatment by an individual resident who is experiencing a pest
problem should not result in the complete waiver of advance
notification to a neighboring resident that would otherwise be
provided if the treatment were scheduled for the next day,
rather than on the same day of the request for treatment.
To achieve balance, the bill requires the HOA or authorized
agent to provide tenants in adjacent units with the prescribed
notice as soon as practicable after the oral agreement is made
to authorize immediate pesticide application, but in no case is
notice allowed to be given after commencement of the application
of the pesticide. While neighboring owners or residents in such
cases will not be guaranteed 24-hour advance notice, they would
still be provided with some advance notice rather than none at
all, and the HOA is required to provide notice as soon as
practicable after an oral agreement is made. Practically
speaking, some CID residents who are not home during the day may
arrive home at night to discover the notice informing them that
an immediate treatment was requested and completed earlier that
day while they were away from home. For residents who are home
all day, the provision of notice as soon as it can practicably
be given is more likely to be beneficial, providing at least
several hours of advance notice, rather than no notice at all.
Notification rules pertaining to common areas. Under the
current version of the bill, when a HOA is planning to apply
pesticide to a common area, the HOA or its authorized agent is
required to provide individual notice to the owner and, if
applicable, the tenant of the separate interest that is adjacent
to a common area at least 48 hours prior to application of the
pesticide. This provision is intended to make sure that the
residents of separate interests are notified when a common area
adjacent to their unit is about to be treated with pesticide.
Individual notice, as defined under the Davis-Stirling Act,
consists of mail (first-class, registered, or express) and by
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email, fax, or other electronic means (Civil Code Section 4040).
The Committee notes, however, that a key objective of the bill,
to provide advance warning to allow people with chemical
sensitivities or health problems to take precautionary measures,
is not fully realized unless a written notice is posted around
the common area where the pesticide is to be applied. If, for
example, a playground in the middle of the CID is the common
area to be treated with pesticides, then all persons, including
residents, visitors, or passersby to the playground would be
better protected if the notification was posted in advance in a
conspicuous place at the common playground area, rather than if
only individual notice is mailed or emailed to owners or tenants
of adjacent units.
Proposed author's amendments to post written notice in common
areas. For these reasons, the author proposes to amend the bill
to require the association, where practicable, to post the
written notice in a conspicuous place in or around the common
area in which the pesticide is to be applied. In some cases,
the common area that needs pesticide treatment may, for example,
be a shared crawlspace where pests are residing between the
walls of two separate interests. In this case, the posting of a
written notice may be impracticable, as there is no accessible
point of access where it would make sense to post a written
notice. It would, however, make sense to notify the separate
owners whose interest is adjacent to the site to be treated.
For this reason, the author's proposed amendments also specify
that if posting the written notice is not practicable, then the
association shall provide individual notice to the owners or
tenants of the adjacent separate interests, as already specified
in the bill. It should be noted that these amendments reflect
corresponding notice requirements for pesticide treatment in
common areas under SB 328, in the residential rental property
context.
Proposed author's amendments to allow immediate pesticide
treatment for health and safety reasons. The author proposes to
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amend the bill in another way that further harmonizes this bill
with requirements enacted last year under SB 328. If a pest
poses an immediate threat to health and safety, thereby making
compliance with the notification requirements unreasonable prior
to application of a pesticide in a common area, the proposed
amendment allows the HOA to proceed with the pesticide treatment
as long as it posts the notification of treatment at the common
areas as soon as practicable, but not later than one hour after
the pesticide is applied.
Other concerns expressed by homeowner associations. The
Community Associations Institute (CAI), representing homeowners
associations, does not oppose the bill, but has expressed some
late concerns, particularly about the use of the term "tenant"
to describe the potential recipient of the various notices
required by this bill, and the method of delivering such
notices. The author has signaled his intent to work with CAI
and consider this question.
ARGUMENTS IN SUPPORT: This bill is supported by The Center for
California Homeowner Association Law, a nonprofit organization
that advocates on behalf of homeowners living in the state's
50,000 associations:
The Center has documented numerous instances throughout the
state in which vulnerable association residents have been
subjected to pesticides without notice of any kind.
"Vulnerable residents" means infants and children, the
frail elderly, the disabled, those with chronic illness -
for example respiratory ailments like asthma -- who live in
associations. AB 2362 aims to cure this deficiency by
requiring associations to give timely notice so that to
residents may take steps to protect themselves and those
they care for from potential harm. [. . .]
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Decisions handed down by California Appellate Courts . . .
clearly delineate the duties of the association to maintain
the common areas. There may also be instances where the
association will apply pesticides to the separate interest
itself because it has become the source of infestation to
the common areas. In both instances, residents living in
common interest developments need timely notice if [someone
other than a licensed PCO] plans to apply a pesticide that
will impact their health and safety.
REGISTERED SUPPORT / OPPOSITION:
Support
Regional Asthma Management and Prevention (co-sponsor)
Center for California Homeowner Association Law (co-sponsor)
California Association of Code Enforcement Officers (CACEO)
California Rural Legal Assistance Foundation
Coalition for Economic Survival
Esperanza Community Housing
Koreatown Immigrant Workers Alliance (KIWA)
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Pesticide Action Network
Western Center on Law & Poverty
Opposition
None on file
Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334