BILL ANALYSIS Ó
AB 2529
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Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Rudy Salas, Chair
AB 2529
(Linder) - As Introduced February 19, 2016
SUBJECT: Structural pest control.
SUMMARY: Provides that a company registered to perform
structural pest control that hires or employs unlicensed
individuals to perform work on contracts or service agreements,
may do so for Branches 1, 2, or 3, as specified, and specifies
situations in which a county agricultural commissioner may take
disciplinary action against an employer for failing to wear
personal protective equipment.
EXISTING LAW:
1)Establishes the Structural Pest Control Board (SPCB) under the
Department of Consumer Affairs (DCA) to regulate the practice
of structural pest control. (Business and Professions Code
(BPC) §§ 8500 - 8697.4)
2)Defines "structural pest control," with respect to household
pests and wood destroying pests or organisms, as performing or
offering to perform any of the following: (BPC § 8505)
a) Identification of infestations or infections.
b) The making of an inspection or inspections for the
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purpose of identifying or attempting to identify
infestations or infections of household or other structures
by those pests or organisms.
c) The making of inspection reports, recommendations,
estimates, and bids, whether oral or written, with respect
to those infestations or infections.
d) The making of contracts, or the submitting of bids for,
or the performance of any work including the making of
structural repairs or replacements, or the use of
pesticides, or mechanical devices for the purpose of
eliminating, exterminating, controlling or preventing
infestations or infections of those pests, or organisms.
3)Classifies, for the purpose of delimiting the type and
character of work authorized by the various branch licenses,
the practice of pest control into the following three
branches: (BPC § 8560)
a) Branch 1: fumigation licenses, which authorize the
practice relating to the control of household and
wood-destroying pests or organisms by fumigation with
poisonous or lethal gases.
b) Branch 2: general pest license, which authorize the
practice relating to the control of household pests,
excluding fumigation with poisonous or lethal gases.
c) Branch 3: termite licenses, which authorizes the
practice relating to the control of wood-destroying pests
or organisms by the use of insecticides, or structural
repairs and corrections, excluding fumigation with
poisonous or lethal gases.
4)Defines "registered company" as a sole proprietorship,
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partnership, corporation, or other business organization that
is registered with the SPCB to engage in the practice of
structural pest control. (BPC § 8506.1)
5)Authorizes a registered company to hire or employ individuals
who are not licensed by the SPCB to perform work on contracts
covering wood-destroying organisms only after an operator or
field representative has fully completed the negotiation or
signing of the contract covering a given job. (BPC § 8506.1)
6)Provides that the SPCB shall delegate its authority to the
Director of Pesticide Regulation for designating county
agricultural commissioners. (BPC §§ 8616, 8616.4)
7)Provides that the county agricultural commissioner shall be
the lead agency for inspections and routine investigations of
pesticide use by structural pest control licensees and
registered companies, and of persons engaged in unlicensed
structural pest control. Further provides that when a matter
is referred to the SPCB for disciplinary action, the SPCB
shall be the lead agency and may require that the commissioner
assist in any investigation. (BPC § 8616.5)
8)Provides that, if an employee is found during an inspection or
investigation not wearing personal protective equipment
required by regulation, the commissioner shall have the option
to use discretion in citing an employer only if evidence of
all of the following is provided: (BPC § 8616.9)
a) The employer has a written training program, has
provided training to the employee, and has maintained a
record of training as required by regulation.
b) The employer provided personal protective equipment
required by regulation, the equipment was available at the
site when the employee was handling the pesticide or
pesticides, and the equipment was properly maintained and
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in good working order.
c) The employer is in compliance with regulations relating
to the workplace and supervision of employees.
d) The employer has implemented and adheres to a written
company policy of disciplinary action for employees who
violate company policy or state or local laws or
regulations.
e) The employer has no history of repeated violations of
this section.
9)Authorizes the SPCB or county agricultural commissioners, when
acting pursuant to BPC § 8616.4, to suspend the right of a
structural pest control licensee or registered company to work
in a county for up to three working days or, for a licensee,
registered company, or an unlicensed individual acting as a
licensee, levy an administrative fine up to one thousand
dollars or direct the licensee to attend and pass a
SPCB-approved course of instruction at a cost not to exceed
the administrative fine, or both, as specified. (BPC § 8617)
THIS BILL:
1)Expands the authority of a registered company to hire or
employ individuals who are not licensed to practice structural
pest control to perform work on contracts covering any Branch
1, 2, or 3, or any combination of branches, after an operator
or field representative has fully completed the negotiation or
signing of the contract covering a given job.
2)Provides that an unlicensed individual may not perform work
that requires one of the structural pest control licenses.
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3)Authorizes a county agricultural commissioner that finds
during an inspection or investigation an employee who is not
wearing personal protective equipment required by label or
regulation to take disciplinary action against the employer
and assess a civil fine against the employee. If the
commissioner does not take disciplinary action against an
employer, the commissioner may assess a civil fine against the
employee only if the employer provides evidence of all of the
following:
a) The employer has a written training program, has
provided training to the employee, and has maintained a
record of training as required by label or regulation;
b) The employer provided personal protective equipment
required by label or regulation, the equipment was
available at the site when the employee was handling the
pesticide or pesticides, and the equipment was properly
maintained and in good working order;
c) The employer is in compliance with regulations relating
to the workplace and supervision of employees;
d) The employer has documented implementation and adheres
to a written company policy of disciplinary action for
employees who violate company policy or state or local laws
or regulations; and,
e) The employer has not been disciplined for a violation of
the personal protective equipment requirement for the
previous two years.
4)Provides that a county agricultural commissioner may not
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assess a civil fine against an employee that exceeds
_____dollars.
5)Provides that no reimbursement is required pursuant to Section
6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a
local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction,
within the meaning of Section 17556 of the Government Code, or
changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California
Constitution.
FISCAL EFFECT: Unknown. This bill is keyed fiscal by the
Legislative Counsel.
COMMENTS:
Purpose. This bill is sponsored by the Pest Control Operators
of California . According to the author, this bill clarifies the
circumstances under which a registered company may hire or
employ unlicensed individuals." This bill also seeks to provide
"clearer guidelines for county enforcement personnel to follow
when deciding whether to take administrative action against an
employer, an employee, or both, when an employee fails to wear
the proper personal protective equipment."
Background. The changes this bill seeks to make were approved
by the SPCB's Act Review Committee, which reviews the structural
pest control practice act and recommends changes to the full
SPCB. The approval was adopted by the SPCB at its October 8,
2015 meeting.
Hiring Unlicensed Personnel for Non-Pest Control Work. Existing
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law allows a registered company to hire personnel who are
unlicensed to practice structural pest control to perform work
on a pest control contract covering wood destroying organisms.
The conditions state that the unlicensed personnel may only
start working after a licensed operator or field representative
signs the contract and the unlicensed individual may not perform
structural pest control. This exemption allowed for registered
companies to negotiate contracts that included more than just
pest control, such as repairs, and to utilize unlicensed
individuals to perform the non-pest control work.
However, contracts involving other household pests and organisms
may still require non-pest control work. Therefore, this bill
seeks to expand the exemption to include all contracts.
Disciplinary Action by County Agricultural Commissioners.
Current law provides that a county agricultural commissioner
shall be the lead agency for inspections and routine
investigations of pesticide use by structural pest control
licensees, registered companies, and unlicensed persons.
Further, it authorizes the agricultural commissioners to cite an
employer where an employee is discovered not wearing personal
protective equipment, so long as there are specified
circumstances indicating the employer is not at fault.
However, the law as drafted is vague both as to what types of
disciplinary actions the commissioner may take and the extent of
the commissioner's discretion. Therefore, this bill seeks to
clarify the duties and powers of the commissioner by providing
additional guidelines.
AMENDMENTS:
The author should amend the bill to include the following
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clarifying changes as follows:
1)Page 3, strike lines 16-21, inclusive, and insert:
may refer the violation for statewide disciplinary action by
the board or suspend the right of the employer to work in the
county for up to three working days. If the commissioner does
not take disciplinary action against the employer, the
commissioner may assess an administrative fine against the
employer and the employee or the commissioner may assess an
administrative fine against the employee solely if the
employer provides evidence of all of the following:
This amendment clarifies the existing authority under of the
commissioner under BPC § 8617 in the context of the equipment
violations.
2)Page 4, line 2 after "disciplined" insert:
nor assessed an administrative fine
This amendment distinguishes an administrative fine from SPCB
disciplinary action.
3)Page 4, strike lines 4-5 and insert:
An administrative fine assessed against an employee pursuant
to this section shall not be no less than two hundred and
fifty ($250) nor greater than five thousand dollars ($5,000).
An administrative fine assessed against an employer pursuant
to this section shall be no less than seven hundred dollars
($700) nor greater than five thousand dollars ($5,000).
In assessing a fine the board or commission shall give due
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consideration to the appropriateness of the amount of the fine
with respect to factors such as the gravity of the violation,
the good faith of the licensee, and the history of previous
violations.
Nothing in this section is intended to limit the authority of
the commissioner to take any action against the employee
pursuant 8617, including suspension of the employee's license
or to take action against an unlicensed employee for violation
of this section or to refer a violation of this section for
statewide disciplinary action by the board pursuant to Section
8620.
This amendment further clarifies the authority of the
commissioner and fills in the fines using the number
determined under the SPCB's regulations (Title 16 California
Code of Regulations § 1922).
REGISTERED SUPPORT:
Pest Control Operators of California (sponsor)
Structural Pest Control Board
Newport Exterminating
Western Exterminator
REGISTERED OPPOSITION:
None on file.
Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301
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