BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2362


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          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