BILL ANALYSIS Ó AB 2529 Page 1 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 AB 2529 Page 2 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, AB 2529 Page 3 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 AB 2529 Page 4 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. AB 2529 Page 5 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 AB 2529 Page 6 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 AB 2529 Page 7 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 AB 2529 Page 8 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 AB 2529 Page 9 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 AB 2529 Page 10