BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 328


                                                                    Page  1





          SENATE THIRD READING


          SB  
          328 (Hueso)


          As Amended  August 17, 2015


          Majority vote


          SENATE VOTE:  23-15


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |10-0 |Mark Stone, Weber,    |                    |
          |                |     |Wagner, Alejo, Chau,  |                    |
          |                |     |Chiu, Gallagher,      |                    |
          |                |     |Cristina Garcia,      |                    |
          |                |     |Maienschein, Thurmond |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          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:   









                                                                     SB 328


                                                                    Page  2






          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  








                                                                     SB 328


                                                                    Page  3





               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  








                                                                     SB 328


                                                                    Page  4





            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;









                                                                     SB 328


                                                                    Page  5





             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  








                                                                     SB 328


                                                                    Page  6





          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  








                                                                     SB 328


                                                                    Page  7





          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  








                                                                     SB 328


                                                                    Page  8





          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  








                                                                     SB 328


                                                                    Page  9





          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  








                                                                     SB 328


                                                                    Page  10





          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


                                                                    Page  11