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Kahn, Soares & Conway, LLP
Attorneys At Law
1112 "I" Street, Suite 200
Sacramento, California 95814-2823
Telephone: (916) 448-3826
Facsimile: (916) 448-3850
E-Mail: law@kscsacramento.com

 

March 8, 2001


CERTIFIED MAIL - RETURN RECEIPT

Chuck Cate, Town Administrator
Town of Fairfax
142 Bolinas Road
Fairfax, California 94930

Re: Ordinance No- 686

Dear Mr. Cate:

We are writing on behalf of our client, Pest Control Operators of California, Inc. (PCOC), the statewide trade association for structural pest control operators. Among its many activities, PCOC interacts with state and local agencies on matters which affect its members' businesses. One important role that PCOC plays is to monitor legislative and regulatory enactments around the state to ensure that the body of laws regulating our members are consistent with the state licensing rules under which they operate.

It is within this context that we reviewed the recently enacted Ordinance No. 686, Fairfax Town Code Title 8 Health & Safety, Chapter 8.40 et seq., in regards to prohibitions and notification requirements as they pertain to the application of pesticides.

We feel it is important to bring to your attention the fact that many of the provisions in Ordinance No. 686 are preempted by California State Law. Specifically, Section 11501.1 of the California Food & Agricultural Code provides:

"This Division and Division 7 (commencing with Section 12501) are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, or use of economic poisons to the exclusion of all local regulation. Except as otherwise specifically provided in this code, no ordinance or regulation of local government, including but not limited to, an action by a local governmental agency or department, a county board of supervisors or a city council, or a local regulation adopted by the use of initiative measure, may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, or use of economic poisons, and any of these ordinances, laws, or regulations are void and of no force or effect."

The California Department of Pesticide Regulation is charged with interpreting and enforcing Section 11501.1. Consistent with its authority, DPR has promulgated a variety of regulations. Additionally, the Structural Pest Control Board, part of the Department of Consumer Affairs, is responsible for interpreting and enforcing provisions of California's Business and Professional Code relating to the licensing and practices of structural pest control. These state agencies have primacy (to the exclusion of all other entities local or statewide) in the regulation of pesticides or pest control, including structural pest control. Attached for your reference are copies of selected provisions from the Food and Agricultural, and Business and Professions Code, and the California Code of Regulations promulgated by DPR and the Structural Pest Control Board.

It is clear that many of the provisions in Ordinance No. 686 are preempted by the body of state law cited above. Examples include, but are not limited to, notice requirements, definitions and enforcement procedures. As provided in Food and Agricultural Code section 1 1501 I, cited above, most of the provisions of this Ordinance "are void and of no force or effect." Should you or the Town's legal counsel wish to discuss these issues further, please feel free to contact me. It is important that this conflict in the laws be resolved as soon as possible so that members of our association who engage in, business within the Town of Fairfax can continue their operations in a manner consistent with their state licensing requirements and the pesticide notice and use provisions of state law. If we do not hear from you, we will advise the members of PCOC that the Town of' Fairfax has reviewed this matter and concurs with the legal conclusions summarized in this letter. Thank you for your immediate attention to this important matter.

Sincerely

KAHN, SOARES & CONWAY, LLP


Dale A. Stern

DAS/ehs
Enclosures
cc. Harvey Logan, Executive Vice President
Pest Control Operators of California

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