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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 95-1009 

of : 

: September 11, 1996 

DANIEL E. LUNGREN : 

Attorney General : 

: 

GREGORY L. GONOT : 

Deputy Attorney General : 

: 

THE HONORABLE RUBEN S. AYALA, MEMBER OF THE CALIFORNIA 

SENATE, has requested an opinion on the following question: 

When a mosquito abatement district or vector control district discovers the presence of 

a fly problem involving an agricultural operation, does the district have an affirmative duty to 

determine whether the agricultural operation constitutes a public nuisance in producing "excessive" 

domestic fly larval development and adult fly emergence on the property before initiating a formal 

nuisance abatement action against the agricultural operation? 

CONCLUSION 

When a mosquito abatement district or vector control district discovers the presence of 

a fly problem involving an agricultural operation, the district does not have an affirmative duty to 

determine whether the agricultural operation constitutes a public nuisance in producing "excessive" 

domestic fly larval development and adult fly emergence on the property before initiating a formal 

nuisance abatement action against the agricultural operation. 

ANALYSIS 

The Legislature has enacted a comprehensive statutory scheme (Health & Saf. Code, ''

2200-2360; "Act")1 authorizing mosquito abatement districts and vector control districts to take all 

1 All section references hereafter are to the Health and Safety Code. 

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steps necessary to control mosquitoes, flies, and other vectors2 and abate nuisances involving their 

breeding places (' 2270). We are asked to determine whether such a district may institute a formal 

nuisance abatement action against an agricultural operation for causing a breeding place for flies 

without first determining whether the operation is producing "excessive" larval development and adult 

fly emergence on the property. For the reasons which follow, we conclude that such determination 

need not first be made. 

The board of trustees of a mosquito abatement or vector control district is empowered 

to "[a]bate as nuisances all standing water and other breeding places for mosquitoes, flies, or other 

vectors, either in the district or in territory not in the district but so situated with respect to the district 

that mosquitoes, flies, or other vectors from the territory disperse into the district." (' 2270, subd. (b).) 

It is also expressly authorized to "[e]nter upon any property without hindrance or notice, either within 

the district or so reasonably adjacent thereto that vectors may disperse into the district, . . . [t]o abate 

public nuisances in accordance with [sections 2270-2294] either directly or by giving notice to the 

property owner to abate a nuisance." (' 2270, subd. (f)(2).) 

The Act authorizes abatement actions as follows: (1) the district gives notice to the 

property owner of the existence of the nuisance ('' 2274-2279); (2) the owner may request and obtain a 

hearing before the district board (' 2280); (3) the owner may request and obtain judicial review of the 

board's decision (' 2280.1); (4) if the owner does not abate the nuisance as directed, the district may do 

so "by destroying the larvae or pupae and by taking appropriate measures to prevent the recurrence of 

further breeding" (' 2282); (5) the owner is subject to a $500 penalty for each day of not abating the 

nuisance as directed ('' 2775, subd. (c); 2280); and (6) the owner is subject to costs for abatement 

actions undertaken by the district (' 2283). Alternatively, the district board may follow a different 

statutory scheme ('' 2800-2910), but one which has similar procedures ('' 2856-2868). (' 2273.) 

Section 2274 provides: 

"Whenever a nuisance specified in this chapter exists upon any property, either 

in the district or in territory not in the district but so situated with respect to the district 

that mosquitoes, flies, or other vectors from the territory disperse into the district, the 

district board may notify in writing the owner or party in possession, or the agent of 

either, of the existence of the nuisance." 

Section 2275 states: 

"The notice shall do all of the following: 

"(a) State the finding of the district that a public nuisance exists on the property 

and the location of the nuisance on the property. 

2 "`Vector' means any animal capable of transmitting the causative agent of human disease or capable of 

producing human discomfort or injury, including, but not limited to, mosquitoes, flies, other insects, ticks, 

mites, and rats, but not including any domesticated animal." (' 2200, subd. (f).) 

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"(b) Direct the owner or party in possession to take appropriate steps to 

eliminate, or prevent the recurrence of, the nuisance. 

"(c) Inform the owner or party in possession that failure to comply with the 

requirements of subdivision (b) shall subject the owner or party in possession to civil 

penalties of not more than five hundred dollars ($500) per day for each day the 

nuisance continues after the time specified for the abatement of the nuisance in the 

notice. 

"(d) Inform the owner or party in possession that before complying with the 

requirements of the notice, the owner or party in possession may appear at a hearing 

before the district board at a time and place stated in the notice." 

Section 2280 provides: 

"Before complying with the requirements of the notice the owner or party in 

possession may appear at a hearing before the board at a time and place fixed by the 

board and stated in the notice. At the hearing the district board shall determine 

whether the initial finding as set forth in the notice is correct and shall permit the owner 

or party in possession to present testimony in his behalf. If, after hearing all the facts, 

the board makes a determination that a nuisance exists on the property, the board shall 

order compliance with the requirements of the notice or with alternate instructions 

issued by the board. 

"Any failure to comply with any order of the board issued pursuant to this 

section shall subject the owner or party in possession to civil penalties as determined by 

the discretion of the board which shall not exceed five hundred dollars ($500) per day 

for each day such order is not complied with." 

The appropriate procedure by which a vector control district may abate a public 

nuisance is determined by the cause of the nuisance involved. Section 2272 states: 

"Except as otherwise provided in Section 2272.5, a public nuisance may be 

abated in any action or proceeding by any remedy provided by [sections 2200-2360] or 

any other provision of law." 

Section 2272.5 provides: 

"Section 2272 shall not apply to a public nuisance which exists at an agricultural 

operation by reason of excessive domestic fly larval development and excessive adult 

fly emergence as defined in subparagraph (C) of paragraph (1) of subdivision (e) of 

Section 2200. An agricultural nuisance described in this section may be abated in any 

action or proceeding only by the remedies provided by [sections 2200-2360]. 

[Sections 2200-2360] shall provide the exclusive source of costs and civil penalties 

which may be assessed by reason of the agricultural nuisance against the owner or 

operator of an agricultural operation at which the nuisance is found to exist." 

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Accordingly, while most public nuisances may be abated under the Act's provisions "or any other 

provision of law," a public nuisance at an agricultural operation producing excessive domestic fly larval 

development and excessive adult fly emergence on the property may only be abated under the Act's 

provisions. 

For purposes of the Act, "public nuisance" is defined in section 2200, subdivision (e), 

to mean any of the following: 

"(1)(A) Any breeding place for mosquitoes, flies, or other vectors of public 

health importance which exists by reason of any use made of the land on which it is 

found, or of any artificial change in its natural condition. Presence of immature 

arthropods of public health importance shall constitute prima facie evidence that a 

place is a breeding place for arthropods. 

"(B) If the board determines that an agricultural operation is growing or 

processing crops or raising fowl or animals in a manner consistent with proper and 

accepted practices and standards, as established and followed by similar agricultural 

operations in the same locality, and employing measures for fly control, for manure 

management, removal, and disposal, and for disposal of agricultural crop waste, which 

prevent excessive domestic fly larval development and excessive adult fly emergence 

on the property, then that place shall not be deemed a public nuisance. 

"(C) As used in this paragraph, `excessive' means the presence of domestic 

flies associated with agricultural operations, which do all of the following: 

"(i) Occur in immature stages and as adults in numbers considerably in 

excess of those found in the surrounding environment. 

"(ii) Are associated with the design, layout, and management of agricultural 

operations. 

"(iii) Disseminate widely from the property. 

"(iv) Cause detrimental effects on the public health and well-being of a 

majority of the surrounding population, as determined by the board. 

"(2) Water which is a breeding place for mosquitoes, flies, or other 

arthropods of public health importance. 

"(3) The presence of rodents or evidence of rodent activity, such as rodent 

droppings, trails, or evidence of feeding activity." 

If a mosquito abatement or vector control district thus determines that an agricultural operation, due to 

its management practices, does not produce "excessive domestic fly larval development and excessive 

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adult fly emergence," the operation is not a public nuisance subject to abatement. (' 2200, subd. 

(e)(1)(B).) 

The issue to be resolved concerns the application of these statutes when a district finds 

that an agricultural operation constitutes a "breeding place for . . . flies." (' 2200, subd. (e)(1)(A).) 

Must it then make a determination whether the operation's practices and procedures "prevent excessive 

domestic fly larval development and excessive adult fly emergence on the property" (' 2200, subd. 

(e)(1)(B)) before it undertakes an abatement action? 

In analyzing and applying the provisions of the Act, we rely on various principles of 

statutory construction. "[O]ur first task in construing a statute is to ascertain the intent of the 

Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look 

first to the words of the statutes themselves, giving to the language its usual, ordinary import . . . ." 

(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) 

"`Statements in legislative committee reports concerning statutory purposes which are in accordance 

with a reasonable interpretation of the statute will be followed by the courts. It will be presumed that 

the Legislature adopted the proposed legislation with the intent and meaning expressed in committee 

reports.'" (O'Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 334.) "It is well established that 

statutes must be given a reasonable construction that conforms to the apparent purpose and intention of 

the law makers [citations] and the various parts of the statutory enactment must be harmonized by 

considering the particular clause in the context of the whole statute." (Nunn v. State of California 

(1984) 35 Cal.3d 616, 624-625.) "`" Exceptions to the general rule of a statute are to be strictly 

construed. In interpreting exceptions to the general statute courts include only those circumstances 

which are within the words and reason of the exception. . . . One seeking to be excluded from the 

sweep of the general statute must establish that the exception applies." [Citation.]' [Citation.]" (City 

of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1017.) Finally, "it is presumed 

the Legislature intended reasonable results consistent with its expressed purpose, not absurd 

consequences." (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165-1166.) 

With these principles in mind, we return to the language of sections 2200 and 2272.5. 

It is clear that the Legislature intended for certain agricultural operations (those with fly problems) to 

receive special consideration under the Act's provisions. Such operations are not public nuisances if a 

district is able to make various findings indicating that the fly problem is not "excessive." (' 2200, 

subd. (e)(1)(B).) Section 2200 does not require a district to make a determination before instituting an 

abatement action. Rather, if a district determines that an excessive fly problem does not exist, the 

operation is deemed not to be a public nuisance. 

The owners of an agricultural operation are in the best position to establish that they are 

following "proper and accepted practices and standards" and are employing measures "which prevent 

excessive domestic fly larval development and excessive adult fly emergence on the property." ('

2200, subd. (e)(1)(B).) If they can establish these conditions to the satisfaction of a district, the 

operation is deemed not to be a public nuisance. The Act allows for such demonstration of proper 

practices, standards, and measures by a property owner. As previously quoted, section 2280 authorizes 

a landowner to appear at a board hearing "to present testimony in his behalf." 

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Our construction of the language of section 2200 is consistent with the apparent 

legislative purposes in amending the statute in 1984 (Stats. 1984, ch. 1085, ' 1) which added the terms 

in question. The report of the Senate Committee on Local Government dated August 8, 1984, 

described the proposed amendment as follows: 

"The laws regarding mosquito abatement districts and vector control districts 

define as a `public nuisance' a place where mosquitoes, flies, or other insects breed. 

The presence of their larvae or pupae is prima facie evidence that the property is a 

breeding place. If a district alleges that a property is a public nuisance because it is an 

insect breeding place, current law requires the district to conduct a noticed public 

hearing before ordering the property owner to abate the nuisance. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"Assembly Bill 2811 says that the public nuisance definition does not apply to 

agricultural operations if a district's board determines that the operation is being 

conducted with `proper and accepted practices and standards' and if it uses measures to 

prevent the `excessive' development of flies." 

We view the legislative history of section 2200 as supporting our conclusion that an abatement action 

may be undertaken at an agricultural operation without first determining whether the fly problem is 

"excessive." 

The terms and conditions of section 2272.5 do not change our construction of section 

2200. Section 2272.5 is an exception to a general statute (' 2272) and thus must be narrowly 

construed. It restricts a district's choices in abating a public nuisance at an agricultural operation due 

to an "excessive" fly problem. As previously quoted, no "provision of law" other than the Act's 

provisions may be invoked in such circumstances. We have examined in detail the legislative history 

of the enactment of section 2272.5 in 1987. (Stats. 1987, ch. 112, ' 3.) It is apparent that the 

Legislature was concerned that agricultural operations were being subjected to larger fines than the 

$500 per day penalty allowed under the Act. For example, the report of the Assembly Committee on 

Local Government for its hearing on March 29, 1987, stated: 

"AB 761 is sponsored by the California Farm Bureau Federation. The Farm 

Bureau believes that references to "any other law" in Section 2272 of the Health and 

Safety Code can result in the application of other penalties, such as those of the 

Business and Professions Code, for public nuisances caused by mosquitoes or other 

vectors. Specifically, the Farm Bureau cites a situation in Stanislaus County where 

fines were levied against a ranch under sections of the Business and Professions Code 

relating to unfair business practices, with a maximum penalty of $2,500 per day." 

We construe section 2272.5 in a manner that would limit the amount of the penalty imposed upon an 

agricultural operation for causing a "breeding place for . . . flies" (' 2200, subd. (e)(1)(A)) to $500 per 

day. 

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We conclude that when a mosquito abatement district or vector control district 

discovers the presence of a fly problem involving an agricultural operation, the district does not have an 

affirmative duty to determine whether the agricultural operation constitutes a public nuisance in 

producing "excessive" domestic fly larval development and adult fly emergence on the property before 

initiating a formal nuisance abatement action against the agricultural operation. 

* * * * * 

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