BILL ANALYSIS Ó
SB 328
Page 1
Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
328 (Hueso) - As Amended May 4, 2015
As Proposed to be Amended
SENATE VOTE: 23-15
SUBJECT: LANDLORDS: NOTICE OF PESTICIDE USE
KEY ISSUE: should tenants in rental property, In order to
maximize their opportunity to protect themselves, their pets,
and their families from health problems associated with exposure
to pesticides, be entitled to notification of pesticide use in
or around their residence, whether the landlord applies the
pesticides himself, or hires a licensed pest control operator to
Apply them?
SYNOPSIS
Existing law requires that a tenant be provided with a specified
written notification prior to pesticide treatment when a
licensed pest control operator (PCO) is going to administer the
treatment and potentially expose the tenant and his family to
pesticides. The author notes that such notification is not
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required, however, 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, in those situations, tenants lack information and are
less able to protect their families from potentially harmful
pesticide exposure.
This bill, sponsored by Regional Asthma Management and
Protection and the California Association of Code Enforcement
Officers, seeks to fix this discrepancy and ensure that tenants
receive the same useful notification of pesticide use in and
around their residences whether the landlord applies the
treatment himself, or hires a licensed PCO to do so.
Specifically, this bill requires a landlord or authorized agent
who applies a pesticide to a dwelling unit without a licensed
pest control operator to provide tenants of that unit with a
specified written notice, in most cases, with 24 hours advance
notice. The bill also requires the landlord, if making a
broadcast application or using total release foggers or aerosol
spray, to provide the same notice to any tenant in an adjacent
dwelling unit that could reasonably be impacted by the pesticide
use. As proposed to be amended, the bill allows the tenant,
prior to receiving the written notice prescribed by the bill, to
enter into an oral agreement with the landlord for immediate
pesticide application if the tenant requests that the pesticide
be applied before 24-hour advance notice can be given. In
addition, the proposed amendments require the landlord or
authorized agent to provide tenants in adjacent units with the
prescribed notice as soon as practicable after the oral
agreement is made authorizing immediate pesticide application,
but in no case later than commencement of application of the
pesticide. With these amendments allowing flexibility for
immediate pesticide treatment and adjusting corresponding notice
requirements, all of the apartment associations who had
expressed concerns have removed their opposition and are
believed to be neutral on the bill.
Among other things, the proposed amendments also narrow the
scope of the bill with respect to its application to rental
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property within community interest developments (CIDs). As
proposed to be amended, the bill clarifies that it is not
intended to apply to common areas in non-CID rental properties,
and more specifically, shall not be construed to require any
landlord, agent or homeowner's association to provide notice of
pesticide use in common areas within a community interest
development. With these amendments, homeowner associations and
CID managers who had expressed concerns with the bill do not
oppose, and as proposed to be amended, the bill no longer has
any known opposition.
SUMMARY: Requires landlords of residential rental property to
provide to tenants, including in some cases neighboring tenants
in adjacent units, specified written notice of and information
about the use of pesticides inside a dwelling unit or in the
common areas of the rental property, if the landlord seeks to
apply the pesticide without a licensed pest control operator.
Specifically, this bill:
1)Requires a landlord or authorized agent that applies a
pesticide to a dwelling unit without a licensed pest control
operator to provide tenants of that unit with a specified
written notice (described below). Further requires the
landlord, if making a broadcast application (as defined) or
using total release foggers or aerosol spray, to provide the
same notice to any tenant in an adjacent dwelling unit that
could reasonably be impacted by the pesticide use.
2)Requires the landlord or authorized agent to provide the above
notice at least 24 hours prior to application, to both the
tenant of the dwelling unit as well as any tenants in adjacent
units that, in certain circumstances, are required to be
notified.
3)Provides that whenever the written notification required by
this bill must be provided to appropriate tenants, it may be
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provided in at least one of the following methods: a) first
class mail; b) personal delivery, as specified; c) electronic
delivery, if the tenant has provided one; and d) written
notice posted in a conspicuous place at the unit entry in a
manner in which a reasonable person would discover the notice.
4)Requires the written notice above to contain the following
statements and information using words with common and
everyday meaning:
a) The pest to be controlled;
b) The pesticide or pesticides proposed to be used, and the
active ingredient or ingredients;
c) A statement which, among other things, reads
"CAUTION-PESTICIDES ARE TOXIC CHEMICALS" and that gives
notice regarding possible symptoms of illness, and various
authorities to contact for further information;
d) The approximate date, time, and frequency with which the
pesticide will be applied, plus a disclaimer that the date,
time, or frequency is subject to change.
5)Allows the tenant, upon receipt of the above notice, to sign a
written waiver to agree to allow the landlord or authorized
agent to apply a pesticide immediately or at an agreed upon
time.
6)Allows the tenant, prior to receiving the above notice, to
agree orally with the landlord or authorized agent to an
immediate pesticide application if a tenant requests that the
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pesticide be applied before 24-hour advance notice can be
given. Provides that the oral agreement shall include the
name and brand of the pesticide product proposed to be used.
7)With respect to a tenant entering into an oral agreement for
immediate pesticide application, requires the landlord or his
authorized agent, no later than the time of pesticide
application, to leave the written notice in a conspicuous
place in the dwelling unit, or at the entrance of the unit in
a manner in which a reasonable person would discover the
notice.
8)With respect to any tenants in adjacent dwelling units who
must also be notified of pesticide treatment in their
neighbors' adjacent unit, requires the landlord or authorized
agent to provide those tenants with such notice as soon as
practicable after the oral agreement is made authorizing
immediate pesticide application, but in no case later than
commencement of application of the pesticide.
9)Clarifies these provisions should not be construed to require
a homeowner's association to provide notice of pesticide use
in a separate interest dwelling unit within a common interest
development, except in cases where the association has taken
title to the separate interest and is renting out the premises
in the shoes of a landlord.
10)Requires a landlord or authorized agent that applies a
pesticide to a common area of the property without a licensed
pest control operator to post a specified written notice in a
conspicuous place in the common area in which a pesticide is
to be applied. Further requires the notice to be posted
before a pesticide is applied in a common area and to remain
posted for at least 24 hours after the pesticide is applied.
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11)Provides that if the pest poses an immediate threat to health
and safety, necessitating immediate treatment, then the
written notice must be posted by the landlord or his agent as
soon as practicable, but not later than one hour after the
pesticide is applied.
12)Requires a landlord or authorized agent that routinely
applies a pesticide in a common area of the property on a set
schedule without a licensed pest control operator to post a
specified written notice, including:
a) The pest to be controlled;
b) The pesticide or pesticides proposed to be used, and the
active ingredient or ingredients;
c) A statement which, among other things, reads
"CAUTION-PESTICIDES ARE TOXIC CHEMICALS" and that gives
notice regarding possible symptoms of illness, and various
authorities to contact for further information;
d) The schedule which the pesticides will be routinely
applied.
13)Requires the above notice to be provided to existing tenants
prior to the initial pesticide application as well as each new
tenant prior to entering into a lease agreement, and requires
a new notice to be provided if the pesticide to be used is
changed.
14)Clarifies that this bill shall not be construed to require
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any landlord, agent or homeowner's association to provide
notice of pesticide use in common areas within a community
interest development.
15)Clarifies that nothing in this bill authorizes a landlord or
his authorized agent to enter a tenant's dwelling unit in
violation of tenant protections under Civil Code Section 1954.
16)States that if a tenant is provided notice under this
section, a landlord or his authorized agent is not required to
provide additional information, and the information shall be
deemed to be adequate to inform the tenant regarding the
application of pesticides.
EXISTING LAW:
1)Regulates the terms and conditions of residential tenancies
and generally requires a landlord to keep a rental unit in a
condition fit for occupancy. (Civil Code Section 1940 et
seq.)
2)Provides that any building or portion thereof, including any
dwelling unit, shall be deemed to be a substandard building if
certain specified conditions exist to an extent that it
endangers the life, limb, health, property, safety, or welfare
of the public or the occupants thereof. With respect to
inadequate sanitation, these conditions include, among other
things:
a) Infestation of insects, vermin, or rodents as determined
by a health officer or a code enforcement officer, as
provided.
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b) General dilapidation or improper maintenance. (Health
and Safety Code Section 17920.3.)
3)Requires a registered structural pest control company to
provide the owner, or owner's agent, and tenant of the
premises for which work is to be done with clear written
notice, as specified, at least 48 hours prior to application
of pesticides, except as provided. Further requires this
notice to contain the following statements and information
using words with common and everyday meaning:
a) The pest to be controlled;
b) The pesticide or pesticides proposed to be used, and the
active ingredient or ingredients;
c) A statement which, among other things, provides
"CAUTION-PESTICIDES ARE TOXIC CHEMICALS" and that also
includes notice regarding possible symptoms of illness, and
various persons to contact for further information;
d) If a contract for periodic pest control has been
executed, the frequency with which the treatment is to be
done. (Business & Professions Code Section 8538.)
1)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. (Civil Code Section 1940.8.)
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2)Pursuant to existing regulations, requires 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. (16 Cal. Code Reg. Sec.
1970.4.)
3)Pursuant to existing regulations, provides 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.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: According to the author:
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
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prior notification of the pest being treated, the product
being used, and basic 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.
The California Association of Code Enforcement Officers,
co-sponsor of the bill, 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. SB 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.
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
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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. The written notification provided by
this bill would help ensure that tenants in rental property
better understand the harms associated with chemicals being used
in and around 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 when carried out by the latter
but not the former. Proposed technical amendments by the author
further align the written notification and methods of service
prescribed by this bill with similar notice requirements in
existing law (Business and Professions Code Section 8538) that
applies to treatments carried out by pest control operators.
Proposed amendments narrow the scope of the bill with respect to
property within a common interest development. According to the
author, this bill is crafted to ensure tenants in residential
rental property are notified of pesticide use, usually with
24-hour advance notice, if possible, whenever pesticides are to
be applied in their dwelling unit, in an adjacent dwelling unit
of another tenant, or in the common areas of the property.
Because tenants already are supposed to receive such
notification when the pesticide treatment is administered by a
licensed pest control operator (PCO), this bill simply seeks to
have the same notice provided when the pesticide treatment is
carried out by the landlord or his authorized agent (e.g. a
property manager), oftentimes using the same commercially
available pesticide products used by PCOs for ordinary
residential pest problems.
In order to accomplish this worthy objective, the bill amends
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the chapter of the Civil Code that outlines the rights and
responsibilities of parties who have entered into a
landlord-tenant relationship. (Chapter 2 of Title 5 of Part 4
of Division 3 of the Civil Code, commencing with Section 1940.)
Because this chapter of the Civil Code governs the
landlord-tenant relationship, it applies regardless of whether
the property itself lies within a community interest development
(CID) or not.
CIDs are multi-unit communities characterized by the following:
(1) separate ownership of individual residential units coupled
with an undivided interest in common property; (2) covenants,
conditions, and restrictions (CC&Rs) that limit the use of both
separate interests and common property; and (3) management of
common property and enforcement of restrictions by a homeowner's
association (HOA). The Davis-Stirling Act (commencing at Civil
Code Section 4000) sets forth general rules governing common
interest developments. It should be noted that CIDs are an
increasingly popular form of housing in California today, and
that many homeowner associations (HOA) allow owners of separate
interests to rent to tenants under their CC&Rs.
With respect to pesticide treatment inside a dwelling unit, the
bill is clear that its provisions apply to landlords and tenants
in all residential rental property, whether or not the unit is
within an apartment building or within a CID. With respect to
pesticide treatment in common areas of the property, however,
the scope of the bill's requirements are not as clear for two
reasons. First, in the CID context, the common areas are
generally under the control of the board of the HOA and the
management, not the "landlord" who in this case is an owner of a
separate interest renting his individual unit to a tenant.
Second, in the context of a separate interest dwelling unit
being rented by the owner to a tenant, the adjacent units are
typically occupied by other owners of separate interests in the
CID, and not occupied by other tenants of the same landlord, as
they ordinarily are in a multiunit apartment building. These
distinctions create some ambiguities in the CID context for
provisions of this bill that require a landlord to provide
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notice when causing common areas to be treated with pesticide,
or to provide notification to tenants in adjoining units when
treating inside a particular dwelling unit for pests.
As proposed to be amended, the author seeks to clarify that this
bill shall not be construed to require any landlord, agent or
homeowner's association to provide notice of pesticide use in
common areas within a community interest development. In
addition, proposed author's amendments clarify these provisions
should not be construed to require a HOA to provide notice of
pesticide use inside a separate interest dwelling unit within a
CID, except in cases where the association has taken title to
the separate interest and is renting out the premises-thus
essentially acting as a landlord to the renter of the unit.
Finally, although it is not expressly clarified in the bill, the
provisions that require the landlord to provide "tenants in
adjacent dwelling units" with notification as soon as
practicable after an oral agreement is made authorizing
immediate pesticide application in a particular dwelling unit
cannot be said to apply in the CID context-because the occupants
of adjacent units in the CID are generally not "tenants" of the
landlord/owner who would have such duty under the bill; instead
they are fellow owners of separate interests in the CID.
According to the author, these proposed author's amendments are
not an endorsement of any principle that residents of CIDs do
not deserve to be notified of pesticide treatment in adjoining
units or common areas of the CID. Instead, the author
recognizes the limitations of the current bill with respect to
these issues in the CID context, and that the best approach for
future legislation to properly address these issues is to amend
the Davis-Stirling Act with more careful input and consideration
than could be achieved in this bill at this time. In short, the
proposed author's amendments taken together clarify that the
scope of the bill is limited to: (1) the landlord-tenant context
for all pesticide use on non-CID rental property, and (2) in a
CID property, only with respect to the landlord's responsibility
to notify his particular tenant or tenants of pesticide use
within the separate interest, but not to notify adjacent units
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occupied by other owners of separate interests.
Proposed author's amendments to allow oral agreement for
immediate pesticide treatment. As currently in print, the bill
permits a tenant, upon receiving the written notification of
upcoming pesticide use required by this bill, to sign a written
waiver allowing the landlord or authorized agent to apply a
pesticide at an agreed upon time within 24 hours. In response
to concerns raised by apartment associations that this rule
would prevent landlords from responding to tenant's requests for
immediate treatment of pest problems because of the mandatory
24-hour advance notice period, the author and apartment
associations engaged in negotiations to increase flexibility of
the rule.
The author now proposes to amend the bill to allow the tenant,
prior to receiving the written notice prescribed by the bill, to
enter into an oral agreement with the landlord for immediate
pesticide application if the tenant requests that the pesticide
be applied before 24-hour advance notice can be given. In such
cases, the proposed amendments still require the oral agreement
to include the name and brand of the pesticide product proposed
to be used, because this is important information that the
tenant should have before the pesticide treatment is carried out
so that he or she can take necessary precautions, request a
different type of treatment, or request to have the treatment
later in time rather than immediately or within the same day as
the oral agreement.
The author's proposed amendments also attempt to strike a
balance with respect to the rights of tenants in adjacent
dwelling units who under the bill would ordinarily also be
notified of pesticide treatment in their neighbors' adjacent
unit when that treatment involves either broadcast applications,
total release foggers or aerosol sprays (i.e. types of
treatments that are most likely to permeate or travel through
air, affecting neighbors.) Proponents of the bill were
concerned that an oral agreement for immediate treatment by the
individual tenant experiencing a pest problem should not result
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in the complete waiver of advance notification to neighboring
tenants that they would otherwise receive if the treatment were
scheduled for the next day, rather than on the same day of the
request for treatment.
As proposed to be amended, the bill now requires the landlord or
authorized agent to provide tenants in adjacent units with the
prescribed notice as soon as practicable after the oral
agreement is made authorizing immediate pesticide application,
but in no case later than commencement of application of the
pesticide. While neighboring tenants in such cases will not be
guaranteed 24-hour advance notice, they still will be provided
with the notice rather than none at all, and the landlord must
provide such notice as soon as practicable after the triggering
oral agreement is made. For some tenants who are not home at
all during the day, they may arrive home at night to discover
the notice informing them that an immediate treatment was
requested and completed earlier that day while they were away.
For tenants who were home all day, the provision of the notice
as early as it could practicably be given may still be
beneficial by providing several hours of advance notice to take
precautions if necessary, rather than receiving no notice at all
until the treatment is already administered. With these
proposed author's amendments allowing flexibility for immediate
pesticide treatment and adjusting corresponding notice
requirements, all of the apartment associations who had
expressed concerns have removed their opposition and are neutral
on the bill as proposed to be amended.
Proposed author's amendments tailor notice requirements for
pesticide treatment of common areas, including one-time and
routine treatments. As currently in print, the bill requires a
landlord or authorized agent that applies a pesticide to a
common area of the property without a licensed pest control
operator to post a specified written notice in a conspicuous
place in the common area in which a pesticide is to be applied.
The bill also requires the notice to be posted at least 24 hours
before a pesticide is applied in a common area, and to remain
posted for at least 24 hours after the pesticide is applied.
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Apartment associations expressed initial concerns that this rule
would burden landlords by requiring excessively frequent new
notification, for example, when weed killers (an herbicide and
form of pesticide) were administered to common area lawns on a
regularly scheduled basis without the involvement of a licensed
PCO.
In order to address these concerns, the author now proposes
amendments to differentiate between one-time pesticide treatment
in a common area and routinely scheduled pesticide applications,
such as regular lawn and garden maintenance involving weed
killers or other herbicides that fall under the bill's
definition of pesticides. As proposed to be amended, the notice
to tenants for routine application of pesticides to a common
area would include the standard information in the notice
prescribed by the bill, in addition to the schedule by which the
pesticides will be routinely applied. The proposed amendments
also require the landlord or his agent to provide the notice to
existing tenants prior to the initial pesticide application, and
then to each new tenant prior to entering into a lease
agreement. Furthermore, a new notification would be required to
be provided if the chosen pesticide were to change, so that
tenants would be receiving correct and updated information about
the pesticide products being used.
As previously discussed, the proposed amendments also clarify
that the bill is narrow in scope and only intended to apply to
common areas in non-CID rental properties. As proposed to be
amended the bill shall not be construed to require any landlord,
agent or homeowner's association to provide notice of pesticide
use in common areas within a community interest development.
Although arguably less than ideal from a health policy
standpoint, the narrower scope of the bill allows the author and
apartment associations to have a consensus agreement with
respect to non-CID property, and preserves the issue for
pesticide notification in common areas of CIDs for future
legislation.
ARGUMENTS IN SUPPORT: This bill is supported by a broad
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coalition of public health advocates, clean air advocates, and
legal aid and tenant advocates, among others. The California
Pan-Ethnic Health Network (CPEHN), writing in support, reflects
the common arguments made in support of the bill:
Pests and vermin are far too common problems for
tenants in California. They have significant physical
and mental impacts on residents. However, the
pesticides often used to address a pest problem pose
significant health risks of their own. Tenants should
be afforded the right to know about pesticide
applications in their homes and the opportunity to take
precautionary measures that come with that knowledge.
Currently, such notifications is only required when
landlords hire a licensed pest control professional.
However, we know that in many cases, owners and
property managers attempt to manage pests on their own
through the use of store-bought pesticides. In these
cases, there are no requirements that tenants be
notified.
By requiring landlords and property managers to notify
tenants of any do-it-yourself pesticide use, SB 328
would ensure that tenants have the right to know about
the pesticides used in their homes, and are given the
opportunity to take steps to avoid unwanted pesticide
exposure independent of who is applying the pesticides.
We strongly support this effort to protect tenants'
health and help create healthier housing in communities
across the state.
REGISTERED SUPPORT / OPPOSITION:
Support
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Regional Asthma Management and Protection (co-sponsor)
California Association of Code Enforcement Officers (co-sponsor)
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
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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 - Los Angeles
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
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Opposition
None on file
Analysis Prepared by:Anthony Lew / JUD. / (916)
319-2334