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