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 AB 2362 Page 2 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 AB 2362 Page 3 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 AB 2362 Page 4 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) AB 2362 Page 5 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 AB 2362 Page 6 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 AB 2362 Page 7 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 AB 2362 Page 8 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 AB 2362 Page 9 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 AB 2362 Page 10 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 AB 2362 Page 11 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 AB 2362 Page 12 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 AB 2362 Page 13 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 AB 2362 Page 14 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. [. . .] AB 2362 Page 15 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) AB 2362 Page 16 Pesticide Action Network Western Center on Law & Poverty Opposition None on file Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334