BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2362 (Chu)
Version: May 2, 2016
Hearing Date: June 21, 2016
Fiscal: No
Urgency: No
TH
SUBJECT
Common Interest Developments: Pesticide Application
DESCRIPTION
This bill would require a homeowner association in a common
interest development, or its agent, to provide an owner or
tenant of a separate interest with advance written notice of the
application of pesticides to the separate interest or to a
common area when done without a licensed structural pest control
operator. In the case of broadcast applications, as defined,
this bill would also require advance written notice be given to
owners or tenants of adjacent separate interests that could
reasonably be impacted by the pesticide application. This bill
would require written notice to be given at least 48 hours
before pesticide application, unless the pest to be controlled
poses an immediate threat to health and safety, or unless the
owner or tenant of the separate interest where pesticides are to
be applied agrees to an earlier application period.
BACKGROUND
According to the American Association of Poison Control Centers,
Americans reported 2.9 million exposures to poison control
centers in 2014, the most recent year for which data is
available. (American Association of Poison Control Centers,
2014 Annual Report of the American Association of Poison Control
Centers' National Poison Data System
[as of June 6, 2016].) 2.2 million of
these calls involved cases where people came into contact with
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dangerous or potentially dangerous substances. Poison control
centers handled over 83 thousand calls regarding potential
exposure to pesticides in 2014, placing pesticide-related calls
within the top ten categories of calls received that year.
Given that 91 percent of human exposures reported to poison
control centers occurred at a residence, and that approximately
78 million U.S. households use some kind of pesticide, it is
likely that many pesticide-related calls to poison control
involved pesticides used in or near the home. (See U.S.
Environmental Protection Agency (U.S. EPA), Pesticide Industry
Sales and Usage: 2006 and 2007 Market Estimates (Feb. 2011)
[as of June 6, 2016].)
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 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. Over
time, some pests become pesticide resistant, meaning they
adapt to the chemical and are no longer harmed by it. This
forces you to choose another product or method. If used
incorrectly, home-use pesticide products can be poisonous to
humans. (U.S. EPA, Citizen's Guide to Pest Control and
Pesticide Safety (Mar. 2005) <
https://www.epa.gov/sites/production/files/2014-04/documents/ci
tizens_guide_to_pest_control_and_pesticide_safety.pdf> [as of
June 6, 2016].)
Existing law requires registered structural pest control
operators to provide the owner and tenants of a property for
which work is to be done with advance written notice prior to
the application of pesticides. Existing law, enacted last year
by SB 328 (Hueso, Ch. 278, Stats. 2015) requires a landlord or a
landlord's agent to provide a tenant, and any tenant of an
adjacent unit, with advance written notice of the use of
pesticides at the dwelling unit if the landlord or authorized
agent applies any pesticide without a licensed structural pest
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control operator. This bill would require homeowner
associations and their agents to provide owners and tenants with
advance written notice of the use of pesticides at a residence
or in a common area at least 48 hours, except as specified,
prior to their application if the pesticides are applied without
a licensed structural pest control operator.
CHANGES TO EXISTING LAW
Existing law provides that any building or portion thereof
including any dwelling unit, guestroom or suite of rooms, in
which there exists an infestation of insects, vermin, or rodents
to an extent that endangers the life, limb, health, property,
safety, or welfare of the public or the occupants thereof shall
be deemed a substandard building. (Health & Saf. Code Sec.
17920.3.)
Existing law states that a registered structural pest control
company shall provide the owner, or owner's agent, and tenant of
the premises for which work is to be done with clear written
notice. (Bus. & Prof. Code Sec. 8538.)
Existing law specifies that the notice described above shall
contain the following statements and information using words
with common and everyday meaning:
the pest to be controlled;
the pesticide or pesticides proposed to be used, and the
active ingredient or ingredients;
a statement which, among other things, provides
"CAUTION-PESTICIDES ARE TOXIC CHEMICALS." The statement must
also include notice regarding possible symptoms of illness,
and various persons to contact for further information; and
if a contract for periodic pest control has been executed, the
frequency with which the treatment is to be done. (Bus. &
Prof. Code Sec. 8538.)
Existing law states that the notice described above shall be
provided at least 48 hours prior to application of pesticides,
except as provided. (Bus. & Prof. Code Sec. 8538.)
Existing law 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. (Civ. Code Sec. 1940.8.)
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Existing regulations require 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.
Existing regulations specify that in the case of a multiple
family structure, such notice may be given to the designated
agent or the owner, and that for external pest control servicing
to a multiple family dwelling consisting of more than 4 units,
notices shall be posted in heavily frequented, highly visible
areas including, but not limited to, all mailboxes, manager's
apartment, in all laundry rooms, and community rooms. (16 Cal.
Code Reg. Sec. 1970.4.)
Existing law requires a landlord or authorized agent that
applies any pesticide to a dwelling unit without a licensed pest
control operator to provide a tenant of that dwelling unit, and,
if making broadcast applications, or using total release foggers
or aerosol sprays, any tenant in an adjacent dwelling unit 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:
the pest or pests to be controlled;
the name and brand of the pesticide product proposed to be
used;
the approximate date, time, and frequency with which the
pesticide will be applied; and
a specified statement regarding the toxicity of pesticides.
(Civ. Code 1940.8.5(b).)
Existing law requires at least 24 hours prior to application of
the pesticide to the dwelling unit, that the landlord or
authorized agent provide notice to the tenant of the dwelling
unit, as well as any tenants in adjacent units that are required
to be notified, as specified. (Civ. Code 1940.8.5(b).)
Existing law authorizes the landlord or his or her agent, with
the consent of the tenant, to apply a pesticide less than 24
hours after giving notice of intent to apply pesticides. (Civ.
Code 1940.8.5(b).)
Existing law requires a landlord or authorized agent that
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applies any pesticide to a common area without a licensed pest
control operator, except as provided, to post written notice in
a conspicuous place in the common area in which a pesticide is
to be applied, or to provide written notice to all tenants, that
contains the following statements and information using words
with common and everyday meaning:
the pest or pests to be controlled;
the name and brand of the pesticide product proposed to be
used;
the approximate date, time, and frequency with which the
pesticide will be applied; and
a specified statement regarding the toxicity of pesticides.
(Civ. Code 1940.8.5(c).)
Existing law specifies that the above notice shall be posted
before a pesticide application in a common area and shall remain
posted for at least 24 hours after the pesticide is applied.
(Civ. Code 1940.8.5(c).)
Existing law states that if the pest poses an immediate threat
to health and safety, thereby making compliance with
notification prior to the pesticide application unreasonable, a
landlord or authorized agent shall post the notification as soon
as practicable, but not later than one hour after the pesticide
is applied. (Civ. Code 1940.8.5(c).)
This bill requires an association or its authorized agent that
applies any pesticide to a separate interest or to the common
area without a licensed pest control operator to provide the
owner and, if applicable, the tenant of an affected separate
interest and, if making broadcast applications, or using total
release foggers or aerosol sprays, the owner, and, if
applicable, the tenant in an adjacent separate interest that
could reasonably be impacted by the pesticide use with written
notice, as specified, that contains the following statements and
information using words with common and everyday meaning:
the pest or pests to be controlled;
the name and brand of the pesticide product proposed to be
used;
the approximate date, time, and frequency with which the
pesticide will be applied; and
a specified statement regarding the toxicity of pesticides.
This bill requires an association or its agent to provide the
above notice to owners and tenants of separate interests, as
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required, at least 48 hours prior to the application of the
pesticide. In the case of a common area, this bill requires an
association or its agent to post the above notice in a
conspicuous place in or around the common area in which the
pesticide is to be applied, if practicable. If not practicable,
the association or its agent must provide notice to an owner
and, if applicable, a tenant of a separate interest that is
adjacent to the common area.
This bill states that if the pest poses an immediate threat to
health and safety, thereby making compliance with notification
prior to the pesticide application unreasonable, the association
or its agent shall post the notification as soon as practicable,
but not later than one hour after the pesticide is applied.
(Civ. Code 1940.8.5(c).)
This bill authorizes the association or authorized agent to
agree orally to an immediate pesticide application if the owner
or, if applicable, the tenant requests that the pesticide be
applied before the 48-hour notice of the pesticide product
proposed to be used, as specified. If any owner or any tenant
of a separate interest or adjacent separate interest is also
required to be notified, the association or agent must provide
that person with notice as soon as practicable after the oral
agreement is made, but in no case later than commencement of
application of the pesticide.
This bill defines the following terms:
"Adjacent separate interest" means a separate interest that is
directly beside, above, or below a particular separate
interest or the common area.
"Authorized agent" means an individual, organization, or other
entity that has entered into an agreement with the association
to act on the association's behalf.
"Broadcast application" means spreading pesticide over an area
greater than two square feet.
"Electronic delivery" means delivery of a document by
electronic means to the electronic address at or through which
an owner of a separate interest has authorized electronic
delivery.
"Licensed pest control operator" means anyone licensed by the
state to apply pesticides.
"Pest" means a living organism that causes damage to property
or economic loss, or transmits or produces diseases.
"Pesticide" means any substance, or mixture of substances,
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that is intended to be used for controlling, destroying,
repelling, or mitigating any pest or organism, excluding
antimicrobial pesticides as defined by the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec.
136(mm)).
This bill makes related findings and declarations.
COMMENT
1.Stated need for the bill
The author writes:
According to the United States 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. . . . 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
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exposure to pesticides.
Because of the particular way they are regulated, [existing
law requiring notification of pesticide use] 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 [existing law] in
relation to HOAs. Doing this would ensure all tenants receive
the same protections, regardless of the type of housing unit
they rent. 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.
2.Recent Policy on Notification
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. This past year,
the Legislature enacted SB 328 (Hueso, Ch. 278, Stats. 2015),
which requires landlords to provide tenants with advance notice
before pesticides are used in a dwelling unit if the landlord or
authorized agent applies any pesticide without a licensed
structural pest control operator.
This bill follows that recent trend of providing affected
communities with notice prior to the application of pesticides
in their surroundings. It would help residents in common
interest developments better understand the harms associated
with chemicals being used in and around their residences, and
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would give residents with chemical sensitivities or pesticide
related health problems advance warning to take any
precautionary measures deemed necessary. While the pesticides
used by homeowner associations and their agents likely differ in
strength and toxicity to those used by structural pest control
operators, this bill would close a gap in existing law that
requires residents to be given prior notice of pesticide
application by the latter and not the former. Writing in
support, the Esperanza Community Housing Corporation states:
Pests and vermin are far too common problems for tenants in
California. They have significant physical and mental health
impacts on residents. However, the pesticides often used to
address a pest problem pose significant health risks of their
own. Pesticides that are used in homes are linked to serious
health concerns including acute and persistent injury to the
nervous system, injury to reproductive systems, respiratory
problems such as asthma, birth defects, and cancer. The best
way to reduce the risk of unwanted health impacts is to
actively take precautions to avoid exposure to pesticides.
Specifically, in South Central Los Angeles, we observe that
many landlords, property managers, or HOAs, utilize harmful
and unregulated pesticides without the tenants' knowledge,
especially in low-income communities of color. It is
important to protect the health and future of these
communities by ensuring they have the right to know what
pesticides are being used on the residential property.
The first step in avoiding exposure is knowing what pesticides
are being used, when they are being applied, and where. . . .
By requiring HOAs to notify residents of any do-it-yourself
pesticide use, AB 2362 would ensure that residents of HOAs
have the right to know about the pesticides used in their
homes and are given the opportunity to take steps to avoid
unwanted pesticide exposure independent of who is applying the
pesticides.
Support : California Rural Legal Assistance Foundation;
Coalition for Economic Survival; Community Action to Fight
Asthma; Esperanza Community Housing Corporation; Western Center
on Law and Poverty
Opposition : None Known
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HISTORY
Source : Center for California Homeowner Association Law;
Regional Asthma Management and Prevention
Related Pending Legislation : None Known
Prior Legislation :
SB 328 (Hueso, Ch. 278, Stats. 2015) requires a landlord or a
landlord's agent to provide a tenant, and any tenant of an
adjacent unit, with advance written notice of the use of
pesticides at the dwelling unit if the landlord or authorized
agent applies any pesticide without a licensed structural pest
control operator. This bill requires the posting of a similar
notice at least 24 hours prior to applying a pesticide in a
common area without a licensed structural pest control operator,
unless the pest poses an immediate threat to health and safety,
in which case the notice would be required to be posted as soon
as practicable, but not later than one hour after the pesticide
is applied.
SB 1167 (Hueso, Ch. 81, Stats. 2014) expanded the duty of
individuals who possess property infested with rodents to
immediately exterminate and destroy the rodents, to also require
that individual to abate specified conditions that are causing
the infestation. This bill also authorized specified agencies
and governing bodies to abate the conditions that are causing
the infestation, and directed that an agency's abatement order
include abatement of specified conditions that the agency
determines to have caused the infestation.
SB 1411 (Jackson, 2014) would have authorized county
agricultural commissioners to adopt regulations to prohibit the
use of any pesticide within one-quarter mile of a school, and
would have required schools and other specified sites within
one-quarter mile of planned pesticide application be notified in
writing in advance. This bill would have required the placement
of signs in agricultural fields that include the name of the
pesticide, date and time of any restricted entry interval, and
the telephone numbers of the commissioner and pesticide
applicator. This bill died in the Senate Agriculture Committee.
SB 2143 (Bowen, Ch. 234, Stats. 2000) required the landlord of a
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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. This bill
specified that the required notice contain information about the
frequency of treatment if a contract for periodic pest control
has been executed.
AB 2260 (Shelley, Ch. 718, Stats. 2000) established the Healthy
Schools Act of 2000. This bill required that the preferred
method of managing pests at schoolsites be effective least toxic
pest management practices, required each schoolsite to maintain
records of all pesticide use at the schoolsite for a period of 4
years and make the records available to the public upon request,
and required, on an annual basis, the school district to provide
to all staff and parents or guardians of pupils enrolled at a
school written notification addressing, among other things,
expected pesticide use.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Environmental Safety and Toxic Materials Committee
(Ayes 5, Noes 1)
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