Legal Corner Q & A
by Various Authors
Q. What is Proposition 65, and do I have to comply with it?
A. Proposition 65 is a state law passed by the voters in 1986 that requires business operators with 10 or more employees to issue warnings about potential exposure to chemicals known by the State of California to cause cancer, birth defects or other reproductive harms. The list of harmful chemicals is numerous (about 750 substances) and includes: (1) tobacco products, (2) furnishings, hardware and electrical components contained within construction materials, (3) construction and maintenance materials, (4) cleaning products, (5) engine exhaust, (6) pool cleaners, and (7) pest control/landscaping products. Thus, virtually all apartment buildings either contain or release products on the Prop. 65 list.
During the past three years, apartment owners and managers have been sued in increasing numbers for not adequately warning renters that they could be in danger from construction materials, cleaning solutions, cigarette smoke, and exhaust fumes that are present on their rental properties. The lawsuits charge that the offending owners/managers have not posted the Prop. 65 warning signs in common areas nor sufficiently warned renters about their exposure risks.
To combat this threat, owners have been advised to post Prop. 65 warning signs in all garage and common areas. In addition, owners have been advised to incorporate the Prop. 65 warning language into their rental agreements. Not surprisingly, however, no one knew how to guarantee that an apartment building was in full compliance with Prop. 65.
As a result of this uncertainty, the California Apartment Association (CAA) sought, on behalf of participating members, a Global Settlement that would establish guidelines for property owners to implement. Accordingly, if the participants comply, then they should be spared the risk of being sued by aggressive law firms, acting as private enforcers of Prop. 65. Please note that very few San Francisco owners or management companies participated in the Global Settlement, and therefore it may not protect you from liability; however, I believe that implementing its terms will provide a sound defense should a property owner be sued.
Over the objection of the California Attorney General, the Orange County Superior Court recently approved the terms of the Prop. 65 Global Settlement. (The Attorney General has now appealed the judge’s order to the California Court of Appeal, Fourth District.) Under the Global Settlement, different requirements apply, depending on the size of your building. The complexes designated as large facilities include properties with five or more rental units. Those designated as small facilities are buildings with four or fewer units.
The large complexes must, under the Global Settlement, post the new Prop. 65 warning signs outside each primary public entrance, including entrances to parking garages. Warning signs must also be posted in pathways or open areas that lead to individual apartments. Likewise, the warning signs must be posted in common areas like pools or other open spaces if these areas can be accessed from a point other than a main entrance. The new Prop. 65 warning sign, which is sold by the San Francisco Apartment Association, states as follows:
WARNING
This Area Contains Chemicals Known To The State of California To Cause Cancer and Birth Defects Or Other Reproductive Harm. More Information On Specific Exposures Has Been Provided To Tenants And Is Available At www.prop65apt.org
The sign must be 8.5 x 11 inches, and the word WARNING must be in all capital letters and underlined, with a 48-point Garamond type size. In addition, the Prop. 65 informational brochure, also available from SFAA, must be distributed to all existing tenants and all new tenants when they each sign the lease.
For the small facilities, no warning signs are required to be posted. Rather, the informational brochure must be distributed to all existing and new tenants. Moreover, by the end of each calendar year, management must mail the informational brochure to each unit, addressed as follows: “TO ALL OCCUPANTS/GUESTS.” This is an annual requirement for smaller facilities.
Many SFAA members may believe that they are exempt from Prop. 65 because they employ one or two people. This is a dangerous position to take, for the Prop. 65 private enforcers have argued that the small-apartment operators lose their exemption when they utilize any service provider (or an aggregate of providers) like a pest control company or a janitorial agency that employs 10 or more persons. Therefore, I urge the membership of SFAA to issue Prop. 65 warnings, either by using the Global Settlement as a guideline or by posting signs and disclosing the general warning in brochures/lease agreements. The plaintiff lawyers are very clever; you will discover that to hang signs and mail brochures is not that onerous.
Last, before you can get sued for failure to comply, the plaintiff must serve you with a 60-day notice. If you are served with this notice, you should consult with an attorney immediately. Insurance companies usually do not cover Prop. 65 defenses, and the litigation costs can equal or exceed the expense of defending a wrongful-eviction claim. So be careful and buy your signs and brochures from SFAA today.
– David Wasserman
Q. Can a landlord ban smoking in the common area of an apartment house?
A. At my law firm, we believe the answer is, “Yes, at least for periodic (generally, month-to-month) tenancies.” Civil Code Section 827 specifically allows a landlord to change the terms of a periodic tenancy; indeed, it is pursuant to this code section that landlords are able to raise tenants’ rents. Since state law allows such a change, the question becomes whether there is an applicable prohibition under local law. The San Francisco Rent Ordinance itself contains no such prohibition or restriction. However, the Rent Board promulgated a regulation, Rule 12.20, that with certain specified exceptions, prohibits evictions based on any change in the terms of a tenancy imposed by a landlord without the tenant’s consent. Therefore, the issue ultimately turns on whether Rule 12.20 would prevent a landlord’s enforcement of a no-smoking provision through an eviction.
We believe that Rule 12.20 is not a barrier to the enforcement of a no-smoking provision for two reasons. First, in our opinion, Rule 12.20 is an unconstitutional usurpation of legislative authority by the Rent Board and, therefore, wholly void as to any issue. Our law firm believes that San Francisco landlords are free to change the terms of any periodic tenancy and to enforce fully such changes through the eviction process, absent a specific statutory prohibition. Second, by its own terms, Rule 12.20 exempts from its purview changes intended “to protect the health, safety and quiet enjoyment of the occupants of the building or adjoining properties.” A ban on smoking would seem to fall squarely within this express exception to the rule. Indeed, while it is clearly a more aggressive position, we believe that in most cases a landlord can prohibit smoking throughout the building under the same health and safety rationale.
Despite the foregoing, there are other collateral issues that should be considered before effecting and enforcing such a change. For instance, affected tenants may argue that the change is a pretextual modification designed to create a ground upon which to terminate existing tenancies. Accordingly, such a modification should be imposed only with the assistance of competent counsel versed in the legal issues discussed above and the factual circumstances of the targeted tenancies.
– Steven S. Rosenthal
Reprinted courtesy of Plan C. The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. David Wasserman is with Wasserman-Taxman, 415-567-9600 x 12. Steven S. Rosenthal can be reached at 415-928-7300 x 1. Copyright © 2005 by the San Francisco Apartment Magazine. All rights reserved.