Proposition 65:
Guidelines for Multifamily Rental Properties
March 2015
SUMMARY
California voters approved the Safe Drinking Water and Toxic Enforcement Act of 1986,
better known as Proposition 65 (Prop. 65). Proposition 65 requires California to publish
and update its list of chemicals and byproducts that are known to be carcinogens and
reproductive toxicants. Currently, there are over 800 chemicals and byproducts deemed
hazardous on the Prop. 65 list - many of these hazards can be commonly found on
residential properties such as tobacco smoke, building materials, vehicle emissions,
fertilizers, pesticides, pool chemicals, and cleaners - even smoke from barbeques.
Proposition 65 also requires employers with ten (10) or more employees, to give a “clear
and reasonable” warning before knowingly and intentionally exposing anyone to a listed
chemical. Government agencies and small businesses with nine (9) or less employees
are exempt from Proposition 65.
In 2004 and 2005, a settlement emerged from two class action lawsuits that offered some
guidance on how rental owners and managers could comply with Prop. 65. But, the State
Court of Appeals rebuked the settlements and dismissed the cases. While the dismissal
made it more difficult for plaintiff attorneys to file lawsuits against owners and managers
for noncompliance with Proposition 65, owners and managers were still obligated to
provide “clear and reasonable” warnings to employees and residents about their potential
exposure to hazards on their properties.
Until the Office of Environmental Health Hazard Assessment (OEHHA) provides definitive
language to owners and managers, it is unclear what owners and managers should
provide as clear and reasonable warning to anyone for possible exposure while protecting
from themselves from lawsuits.
Prop. 65 posting & noticing on multifamily properties
Rental owners and managers should comply with Proposition 65 by taking measures to
avoid potential lawsuits. First step, the owner and manager should determine if there are
sources of exposure on the property. Next step is to post warnings for employees,
residents, and the public. Lastly, take steps to mitigate or reduce the exposure if possible.
When determining where to place warning signs, the warnings should be placed in areas
where toxic elements could reasonably reach all individuals before potential exposure.
For example, warning signs may need to be located at public entrances, entrances to
parking lots and garages, in an administrative office (if present), and common areas like
playgrounds or pools; any location individuals could potentially be exposed.
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It is important to note that the OEHHA warnings are only regulatory suggestions and not
law. A court may refuse to consider the warnings “clear” and “reasonable.” But, the
OEHHA has posted several examples on how businesses and properties can comply with
Prop. 65:
1. For carcinogens: "WARNING: THIS AREA CONTAINS A CHEMICAL KNOWN
TO THE STATE OF CALIFORNIA TO CAUSE CANCER."
2. For reproductive toxicants: "WARNING: THIS AREA CONTAINS A CHEMICAL
KNOWN TO THE STATE OF CALIFORNIA TO CAUSE BIRTH DEFECTS OR
OTHER REPRODUCTIVE HARM."
3. For carcinogens and reproductive toxicants: “WARNING: THIS AREA
CONTAINS A CHEMICAL KNOWN TO THE STATE OF CALIFORNIA TO
CAUSE CANCER, BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM."
Owner and managers may take additional precautions by adding more comprehensive
language into their signs, such as:
“PROPOSITION 65 WARNING: THE PROPERTY MAY CONTAIN CHEMICALS
KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER, BIRTH
DEFECTS, AND OTHER REPRODUCTIVE HARM. THESE CHEMICALS MAY
BE CONTAINED IN EMISSIONS AND FUMES FROM BUILDING MATERIALS,
PRODUCTS AND MATERIALS USED TO MAINTAIN THE PROPERTY, AND
EMISSIONS, FUMES, AND SMOKE FROM RESIDENT AND GUEST
ACTIVITIES, INCLUDING BUT NOT LIMITED TO THE USE OF MOTOR
VEHICLES, BARBECUES, AND TOBACCO PRODUCTS. THESE CHEMICALS
MAY INCLUDE, BUT ARE NOT LIMITED TO CARBON MONOXIDE,
FORMALDEHYDE, TOBACCO SMOKE, UNLEADED GASOLINE, SOOTS,
TARS, AND MINERAL OILS.”
Importantly, owners and managers that provide the warning above should include
separate notices for lead if the property was built before 1978, and for asbestos if the
property was built before 1981. If an owner or manager has knowledge of a chemical
exposure unique to the property, they also should tailor a specific warning to the chemical
and its potential for harm.
Owners and managers should include warnings in their lease/rental agreements with new
tenants, provide warnings in brochures or documents to existing tenants. For example,
the SDCAA has incorporated Proposition 65 warning language into its Form 200 – Rental
Agreement. To purchase Prop. 65 warning signs, please contact us at (858) 278-8070.
The OEHHA recommends that individuals direct their questions about specific Proposition
65-related warnings to the business itself. Owners and managers should be prepared
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answer questions from resident, employees, and the public regarding the warnings and
the potential exposures the warnings address.
The OEHHA’s website on Proposition 65 provides an overview of the law; a fact sheet is
available for tenants at: http://www.oehha.ca.gov/prop65/pdf/Prop65tenants.pdf.
Prop. 65 posting & noticing penalties
Companies in violation of Prop. 65 could face fines up to $2500 per day for each violation,
along with other applicable penalties. While prosecutors are responsible for enforcing the
law, private parties can sue in the public’s interest. Before the private interest can sue a
business, it must serve a sixty (60) day notice to the business that intends to sue and
inform the Attorney General and local public prosecutor. The notice requires a certificate
of merit signed by the private interest or their attorney. The private party may proceed to
sue the business if the local prosecutor does not take action against the business.
If the private interest succeeds in their action against the business, the business must
contribute seventy-five (75) percent of the civil and criminal penalties to the state’s Safe
Drinking Water and Toxic Enforcement Fund. The private interest may recover attorney’s
fees from the business under several conditions. The court must approve the settlement
and attorney’s fees if the parties agree to settle out of court. If the private interest wins in
court, the court will award attorney’s fees, and the public prosecutor also may recover
fees and court costs for the private interest.
In 2013, AB 227 was enacted. As a result, private parties seeking to recover for
violations resulting from the above must serve, besides the 60-day notice, a 14-day
statutory notice of special compliance procedure – the offending business has fourteen
(14) day to comply and provide proof of compliance.
OEHHA’s Notice for Proposed Rule (NPR)
The SDCAA is currently tracking the OEHHA’s proposed draft revision, Notice of
Proposed Rulemaking (NPR) to their regulatory code. OEHHA is currently seeking
guidance from the public on changes such as requiring businesses append the web
address, incorporating warning symbol to their environmental exposure warnings;
requiring warnings in other languages on certain displays; and requiring the warning
messages describe the specific area of the environmental exposure. While these new
requirements do not go into effect until two years after OEHHA adoption, landlords should
nonetheless be aware of the potential for changes.
For more information on the NPR:
http://www.oehha.ca.gov/prop65/CRNR_notices/WarningWeb/NPR_Article6.html.
www.oehha.ca.gov
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