BILL ANALYSIS Ó
SB 328
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SENATE THIRD READING
SB
328 (Hueso)
As Amended August 17, 2015
Majority vote
SENATE VOTE: 23-15
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Weber, | |
| | |Wagner, Alejo, Chau, | |
| | |Chiu, Gallagher, | |
| | |Cristina Garcia, | |
| | |Maienschein, Thurmond | |
| | | | |
| | | | |
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SUMMARY: Requires landlords of residential rental property to
provide tenants with 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:
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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
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 name and brand of the pesticide product proposed to
be used;
c) A statement which, among other things, reads
"CAUTION-PESTICIDES ARE TOXIC CHEMICALS" and that gives
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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 agree
in writing 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
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
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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.
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 name and brand of the pesticide product proposed to
be used;
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;
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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
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.
FISCAL EFFECT: None
COMMENTS: This bill follows a number of previous bills enacted
by the Legislature to provide affected communities with notice
prior to the application of pesticides in their surroundings.
The written notification provided by this bill helps 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
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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 seeks to 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.
In addition, the written notification and methods of service
prescribed by this bill are further aligned with similar notice
requirements in existing law that applies to treatments carried
out by pest control operators.
Scope of this bill narrowed 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, this bill amends
the chapter of the Civil Code that outlines the rights and
responsibilities of parties who have entered into a
landlord-tenant relationship. 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). 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
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property and enforcement of restrictions by a homeowner's
association (HOA). The Davis-Stirling Act 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, this
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 this 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
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.
Accordingly, recent amendments now 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, this bill
now clarifies that it is not intended 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
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expressly clarified in this 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 this bill; instead they are fellow owners of
separate interests in the CID.
According to the author, this bill should not be construed to
endorse any principle that residents of CIDs are undeserving of
the right to be notified of pesticide treatment in adjoining
units or common areas of the CID. Instead, the author
recognizes certain limitations of this bill with respect to
these issues in the CID context, and believes 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, recent amendments taken together clarify that the
scope of this 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 tenants of pesticide use
within the separate interest, but not to notify adjacent units
occupied by other owners of separate interests.
Oral agreement permitted to enable immediate pesticide
treatment. In response to concerns raised by apartment
associations that the earlier version of this bill would have
prevented 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 negotiated amendments to increase flexibility of
the rule. As a result, this bill now allows the tenant, prior
to receiving the written notice, 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, this bill still
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requires 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.
Recent amendments also attempt to strike a balance with respect
to the rights of tenants in adjacent dwelling units who under
this 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 were concerned that an oral agreement for immediate
treatment by the individual tenant experiencing a pest problem
should not result 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 recently amended, this 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
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until the treatment is already administered. 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 to this bill.
Notice requirements for pesticide treatment of common areas,
including one-time and routine treatments. Under the previous
version of this bill, landlords expressed concerns that the
notification rules for common areas would burden landlords by
requiring excessively frequent new notification, for example,
whenever 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, this bill now differentiates 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 this bill's definition of pesticides. The notice to
tenants for routine application of pesticides to a common area
includes the standard information in the notice prescribed by
this bill, in addition to the schedule by which the pesticides
will be routinely applied. Recent 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. Finally, 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 pesticides being used.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN: 0001298
SB 328
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