BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular Session


          SB 328 (Hueso)
          Version: May 4, 2015
          Hearing Date: May 12, 2015
          Fiscal: No
          Urgency: No
          TH   


                                        SUBJECT
                                           
                         Landlords: Notice of Pesticide Use

                                      DESCRIPTION  

          This bill would require the landlord or the landlord's agent to  
          provide a tenant, and any tenant of adjacent units, 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 would  
          require 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.

                                      BACKGROUND  

          According to the American Association of Poison Control Centers,  
          Americans placed over 3 million calls to poison control centers  
          in 2013, the most recent year for which data is available.   
          (American Association of Poison Control Centers, 2013 Annual  
          Report of the American Association of Poison Control Centers'  
          National Poison Data System  
           [as of May 10, 2015].)  2.2 million of these  
          calls involved cases where people came into contact with  
          dangerous or potentially dangerous substances.  Poison control  
          centers handled over 85 thousand calls regarding potential  
          exposure to pesticides in 2013, placing pesticide-related calls  








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          within the top ten categories of calls received that year.  For  
          adults over 19 years old, pesticide exposure was among the top 5  
          reported human exposure substance categories.  (American  
          Association of Poison Control Centers, Poison Center Data  
          Snapshot - 2013  [as of May  
          10, 2015].)  Given that 93 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 most pesticide-related calls to  
          poison control involve 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 May 10, 2015].)

          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)  
             [as of May 10, 2015].)

          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.  This bill would require  
          landlords or their agents to provided tenants with advance  
          written notice of the use of pesticides at a dwelling unit at  
          least 24 hours prior to their application if the landlord or  







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          agent applies any pesticide without a licensed structural pest  
          control operator.

                                CHANGES TO EXISTING LAW
           
          Existing law  regulates the terms and conditions of residential  
          tenancies and generally requires a landlord to keep a rental  
          unit in a condition fit for occupancy.  (Civ. Code Sec. 1940 et  
          seq.)

           Existing law  creates an implied covenant of quiet enjoyment in  
          every lease, requiring that the tenant shall not be disturbed in  
          his or her possession by the landlord. (Civ. Code Sec. 1927;  
          Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)

           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.)







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           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.)

           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.)

           This bill  would require a landlord or authorized agent that  
          applies any pesticide to a dwelling unit without a licensed  
          structural pest control operator to provide, at least 24 hours  
          prior to application of the pesticide, a tenant of that dwelling  
          unit and a tenant in each neighboring dwelling unit that could  
          reasonably be impacted by the pesticide use with written notice.

           This bill  would require a landlord or authorized agent that  
          applies any pesticide to a common area without a licensed  
          structural pest control operator to post, at least 24 hours  
          prior to application of the pesticide and at least 24 hours  
          after the pesticide is applied, written notice in a conspicuous  
          place in the common area in which a pesticide is to be applied.

           This bill  would specify that the written notices referenced  
          above must contain, in nontechnical language and in a clear and  
          coherent manner, the following statements and information:
           the pest or pests to be controlled;
           the name and brand of the pesticide product proposed to be  
            used;
           a statement which, among other things, provides  
            "CAUTION-PESTICIDES ARE TOXIC CHEMICALS."  The statement must  







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            also include notice regarding possible symptoms of illness,  
            and various persons to contact for further information; 
           the approximate date, time, and frequency with which the  
            pesticide will be applied; and
           for pesticides applied in a dwelling unit, a notification  
            stating "The approximate date, time, and frequency of this  
            pesticide application is subject to change if a tenant in the  
            unit the pesticides will be applied waives the 24-hour waiting  
            period."

           This bill  would provide that upon receipt of written  
          notification, the tenant may sign a waiver to allow the landlord  
          or authorized agent to apply a pesticide to a dwelling unit at  
          an agreed upon time within 24 hours.

           This bill  would state that if the pest poses an immediate threat  
          to health and safety, thereby making compliance with the 24-hour  
          prior notice requirement for application of a pesticide in a  
          common area 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.

           This bill  would also specify that it neither abrogates the  
          responsibility of a registered structural pest control company  
          to abide by specified notification requirements, nor authorizes  
          a landlord or authorized agent to enter a tenant's dwelling unit  
          in violation of existing law.

                                        COMMENT
           
           1.Stated need for the bill
           
          The author writes:

            Current law requires that a tenant be notified when a  
            registered pest management professional is going to  
            potentially expose them to pesticides.  However, such  
            notification is not required when a landlord or property  
            manager applies over-the-counter pesticides on their own,  
            leaving tenants without any information about their exposure  
            to pesticides.  As a result, tenants have no way to protect  
            their families from these harmful toxins.
            SB 328 would require landlords that apply pesticide products  
            to their properties to provide tenants with prior notification  
            of the pest being treated, the product being used, and basic  







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            health and safety information, including symptoms to look for  
            and phone numbers to local poison control centers.  Landlords  
            already must get consent from tenants to enter their units.   
            Adding this notification to the existing landlord-tenant  
            communication process when pesticides are being applied will  
            standardize the information shared and ensures tenants are  
            fully aware of the pesticide products used in their homes.

           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 bill follows that recent trend of providing affected  
          communities with notice prior to the application of pesticides  
          in their surroundings.  It would help tenants better understand  
          the harms associated with chemicals being used in their  
          residences, and would give them advance warning to take  
          precautionary measures as necessary to protect residents with  
          chemical sensitivities or pesticide related health problems.   
          While the pesticides used by landlords 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 tenants be given prior notice of pesticide  
          application by the latter and not the former.  Writing in  
          support, the California Association of Code Enforcement Officers  
          states:

            The Environmental Protection Agency has concluded that nearly  
            three quarters of American households use pesticides in the  
            home in any given year.  This is a matter of utmost  
            seriousness, since pesticides have been linked to damage to  
            the central nervous system, respiratory issues, as well as  
            birth defects and cancers.  These heath issues are exacerbated  
            when pesticide use takes place where children are in the  
            dwelling.







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            Senate Bill 328 is rooted in the solid premise that the most  
            effective way to reduce pesticide health hazards is to take  
            precautions to avoid pesticide exposure.  In that connection  
            it is axiomatic that tenants should be given notice concerning  
            pesticide application in their home, which, in turn, [gives]  
            them the opportunity to take precautions once armed with that  
            knowledge.  This is sound policy and is reflected in a portion  
            of current law.
           3.Opposition Concerns
           
          Several stakeholders have raised implementation concerns with  
          this bill in its current form.  The California Association of  
          Realtors (CAR) objects to the breadth of the notice requirement  
          in this bill as compared to that required of structural pest  
          control operators under existing law.  CAR requests narrowing  
          the notification in this bill to parallel that required of  
          structural pest control operators, which would have the effect  
          of eliminating the requirement for landlords and their agents to  
          provide notice regarding the approximate date, time, and  
          frequency with which pesticides will be applied.

          The Apartment Association of Greater Los Angeles and the Santa  
          Barbara Rental Property Association suggest that the bill in its  
          current form "suffers from some confusing definitional  
          requirements" and state that it "actually prohibits property  
          owners from ridding a kitchen of a recently reported ant  
          infestation without a 24-hour prior notice and an okay to enter  
          the unit to treat the infestation."  They also note that "the  
          bill's prescription for warning residents of the content of  
          commercially available pest-control products already appear on  
          the products themselves, as required by federal and state law,"  
          and that "the disclosure requirements of SB 328 exceed even  
          those required of professional pest-control operators."

          Finally, the California Apartment Association (CAA) states that  
          the definition of pest and pesticides in the bill may be too  
          broad, potentially capturing such things as anti-bacterial  
          products, homemade bleach solutions, and mold.  CAA also notes  
          potential ambiguity in the bill concerning the required notice,  
          waiver of the 24-hour notification period for pesticide  
          applications in a dwelling unit, and the meaning of specific  
          words such as "non-technical."









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           Support  :  Black Women for Wellness; Breast Cancer Action;  
          California Healthy Nail Salon Collaborative; California Rural  
          Legal Assistance Foundation; California Pan-Ethnic Health  
          Network; Californians for a Healthy and Green Economy; Center  
          for Environmental Health; Clean Water Action; Coalition for  
          Clean Air; Environmental Working Group; Healthy Homes  
          Collaborative; Instituto de Educacion Popular del Sur de  
          California; Oakland Tenants Union; Pacoima Beautiful; Pest  
          Control Operators of California; Pesticide Action Network North  
          America; Physicians for Social Responsibility - LA; San  
          Francisco Asthma Task Force; San Francisco Bay Area Physicians  
          for Social Responsibility; SoCalCOSH; Society for Allergy  
          Friendly Environment; Unquilinos Unidos/United Tenants; Western  
          Center on Law & Poverty; one individual

           Opposition  :  Apartment Association of Greater Los Angeles;  
          California Apartment Association; California Association of  
          Realtors; Educational Community for Homeowners; Santa Barbara  
          Rental Property Association

                                        HISTORY
           
           Source  :  California Association of Code Enforcement Officers;  
          Regional Asthma Management and Protection

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          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  







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          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  
          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.

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