What is Proposition 65 and do I have to comply with it?

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 chemicals) 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 apartments buildings either contain or release products on the Prop 65 list.

During the past 3 years, apartment owners and managers have been sued in increasing numbers for not adequately warning renters that they could be in danger from construction material, 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 and sufficiently warned renters about the exposure risks.

These lawsuits led to the California Apartment Association to seek, on behalf of its membership, a global settlement that would establish guidelines for property owners to implement. If they complied, then they should be spared the risk of being sued by the aggressive law firms acting as "private enforcers" of Prop 65.

Over the objection of the California Attorney General, the Orange County Superior Court recently approved the terms of the Proposition 65 Global Settlement. Under the settlement, different requirements apply depending on the size of your building. The "large" complexes include properties with five or more rental units. The "small" facilities are those buildings with four or less units.

The large complexes must, under the 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 SFAA, 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 the SFAA, must be distributed to all existing tenants and all new tenants when they 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, as 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, SFAA urges its membership to comply with the Global Settlement even if you believe that you are exempt. The plaintiffs lawyers are very clever, and it is not that onerous to post signs and mail brochures.

Finally, 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 the SFAA today.

Dave Wasserman