BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: AB 2529 Hearing Date: June 20,
2016
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|Author: |Linder |
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|Version: |April 14, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Mark Mendoza |
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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 authorizes a county agricultural
commissioner to take disciplinary action against an employer or
employee for failing to wear personal protective equipment, as
specified.
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:
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a) Identification of infestations or infections.
b) The making of an inspection or inspections for the
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.
(BPC § 8505)
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
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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,
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
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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:
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 as
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
in good working order.
c) The employer is in compliance with regulations relating
to the workplace and supervision of employees.
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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.
(BPC § 8616.9)
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.
Provides that this provision not be construed to authorize an
unlicensed individual to perform work that requires a
license.
2) 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
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regulation, to refer the violation by the employer for
statewide disciplinary action by the SPCB, or suspend the
right of the employer to work in the county for up to three
working days. If the commissioner does neither, the
commissioner may assess an administrative fine against both
the employer and the employee. If the commissioner does not
take disciplinary action against an employer, the
commissioner may assess an administrative 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,
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e) The employer has not been disciplined or assessed an
administrative fine for a violation of the personal
protective equipment requirement for the previous two
years.
3) Provides that a county agricultural commissioner may impose
an administrative fine assessed against an employer and shall
not be less than seven hundred dollars ($700) nor more than
five thousand dollars ($5,000).
4) Provides that a county agricultural commissioner may impose
an administrative fine assessed against an employee and shall
not be less than two hundred fifty dollars ($250) nor more
than five thousand dollars ($5,000).
5) Requires that when assessing an administrative fine, the SPCB
or commissioner consider the appropriateness of the amount of
the fine to the gravity of the violation, the good faith of
the licensee, and the history of prior violations.
6) Provides that nothing in this section is intended to limit
the authority of the commissioner to take action against the
employee, including suspension of the employee's license or
referral of the violation for statewide disciplinary action
by the SPCB pursuant to BPC § 8620.
FISCAL EFFECT: This bill has been keyed "fiscal" by Legislative
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Counsel. According to the April 14, 2016 Assembly
Appropriations Committee analysis, this bill will result in a
minor increase in fine revenue to the SPCB due to potential
increase in fines.
COMMENTS:
1. Purpose. The Pest Control Operators of California are the
Sponsor of this measure. According to the Author, this bill
"enables a Branch 1 and Branch 2 registered company to be
equally competitive with a Branch 3 registered company in the
use of those services of employees or independent
contractors, who otherwise are not required to be licensed,
to perform work in connection with a pest control contract or
service. The proposed changes to BPC § 8616.9 would provide
authority and guidelines for county enforcement personnel to
take administrative action against the employee if it is
found that the employer has met certain conditions."
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.
2. Structural Pest Control Board. In 1936, the Structural Pest
Control Act (AB 2382, Chapter 823, Statutes of 1935)
established the first SPCB (Chapter 14 of the Business and
Professions Code was codified in 1941 and established the
current version of the SPCB. On October 23, 2009, the SPCB
was transferred from the Department of Consumer Affairs to
the Department of Pesticide Regulation (DPR). Effective July
1, 2013, under the Governor's 2011-2012 Reorganization Plan
(GRP) No. 2 and AB 1317 (Frazier Chapter 352, Statutes of
2013), the SPCB returned to the DCA.
SPCB issues three types of licenses for three different
practice areas (branches) of pest control. The license types
are Applicator, Field Representative, and Operator. The
branches are fumigation, general pest, and termite
(wood-destroying pests and organisms). Under the fumigation
branch, the SPCB issues Field Representative Licenses and
Operator Licenses. Under the general pest and termite
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branches, the SPCB issues all three licenses.
Each branch covers a distinct area of pest control:
Branch 1Fumigation - Whole structure treatment with lethal
gas.
Branch 2General Pest - Ants, cockroaches, mice and rats.
Branch 3Termite - Termites, wood boring beetles, dry rot, and
fungus.
As of April 2016, the licensee population included 7,113
Applicators, 10,876 Field Representatives, and 4,090
Operators. Each license has its own scope of practice,
entry-level requirements, and education/examination
requirements, with some overlap.
Applicator - An entry-level license category issued in
Branch 2 and 3 only. The Applicator is an individual
licensed by the SPCB to apply a pesticide, or any other
medium to eliminate, exterminate, control or prevent
infestations or infections. Applicators cannot inject
lethal gases used in fumigation.
Field Representative - A full journey-level license.
This individual secures work, makes identifications, makes
inspections, submits bids, and contracts for work on behalf
of a registered company.
Operator - The highest level of license. Depending on
the license category, the Operator must have at least two
years' or as many as four years' qualifying experience.
Only a licensed Operator may qualify a company for
registration by assuming responsibility for the company and
its employees as the company Qualifying Manager.
Each company and branch office must register with the SPCB
(BPC § 8610). As of April 2016, there were 2,982 Principal
Registrations and 440 Branch Office Registrations.
1. Hiring Unlicensed Personnel for Non-Pest Control Work.
Existing 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
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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 (e.g.
exterminating bed bugs). Therefore, this bill seeks to
expand the exemption to include all contracts.
2. 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.
3. Arguments in Support. The Structural Pest Control Board
writes that, "In 2010 the SPCB created the Act Review
Committee and directed it to review the Structural Pest
Control Act to recommend changes that would both strengthen
consumer protection and modernize the language. The
amendments being proposed by AB 2529 are recommendations from
the Act Review Committee that the SPCB voted unanimously to
approve"
SUPPORT AND OPPOSITION:
Support:
Pest Control Operators of California (Sponsor)
Newport Exterminating
The Structural Pest Control Board
Western Exterminator Company
Opposition:
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None on file as of June 14, 2016.
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