09 July 2013
Proposition 65 (Prop 65) was passed by voters in 1986 and requires business operators with ten or more employees to post 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 long (about 750 chemicals) and includes chemicals from sources such as: (1) building materials; (2) tobacco products; (3) furnishings, hardware, and electrical components contained within construction materials; (4) construction and maintenance materials; (5) cleaning products; (6) engine exhaust; (7) pool cleaners; (8) pest control/landscaping products; and (9) office supplies like copy paper, toner, and electronic devices, to name a few. Thus, virtually all apartments contain chemicals on the Prop 65 list.
Over the years, apartment owners and managers have been embroiled in lawsuits for not adequately or properly warning renters and guests that they could be ex posed to chemicals found on the premises. The lawsuits also claim that owners and managers have not posted the Prop 65 signs in the proper places, like common areas and entrances to garages, or sufficiently warned renters about the harms.
The law does not proscribe with any specificity what a warning sign should look like. Instead, the law states that a warning sign must be "clear and reasonable," and must notify the reader that the facility contains chemicals known to the state to cause cancer or reproductive toxicity.
A typical sign reads as follows:
This Area Contains A Chemical Known To The State of California To Cause Birth Defects Or Other Reproductive Harm.
(California Health & Safety Code Section 25249.5)
Some warning signs also include a website or phone number so the reader or tenant can obtain more information.
But simply posting a sign like the one above at an apartment building does not necessarily protect a landlord or manager against lawsuits. Plaintiff attorneys are always coming up with clever ways to challenge the language on warning signs.
Landlords can, however, reduce risk.
How to Reduce Prop 65 Liability
Apartment owners should post Prop 65 warning signs outside primary public en trances, including entrances to parking gar ages. The signs should also be posted in pathways or open areas that lead to individual apartments. Additionally, signs should be posted in common areas, pools, and other open spaces.
In addition, a Prop 65 informational brochure should be distributed to all existing tenants and all new tenants when they sign the lease.
And remember, just because you employ one or two employees, does not necessarily mean you are exempt from Prop 65 mandates. Prop 65 plaintiffs have argued that when apartment owners hire service providers like pest control companies or janitorial services that employ ten more persons, owners lose their exemption.
Finally, the plaintiff must serve you with a 60-day notice. If this should happen, you should consult with an attorney immediately. Insurance companies often do not cover Prop 65 claims, and litigation costs can be as much or more expensive than defending a wrongful eviction claim.
Prop 65 Law May Change
The Governor's Office has started reaching out to various groups impacted by Prop 65 with the intent of reforming the law. Key stakeholders, including AACSC, have been identified and invited to participate in a workgroup. Among other issues, the Governor seeks to address problems with the content of warning signs, and lawsuit abuse.
We will continue to attend these meetings.
We Need Your Help
To best serve the rental and real estate industry at these Prop 65 stakeholder workgroup meetings, we need feedback from you.
Within the next few weeks, please email or contact me to discuss the following questions with us. Answering these questions will assure that the concerns and issues pertinent to apartment owners and managers will be thoroughly and expertly represented throughout the reform process.
- Have you been sued for Prop 65 violations?
- If so, what specifically were you sued for?
- Do you post Prop 65 warnings signs at your apartment building?
- If so, how many, where, and how does the sign read?
- Do you provide Prop 65 informational brochures to your tenants?
- What are common sources of Prop 65 chemicals found in your apartment?