BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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