05/24/2018: Court orders Cleveland to post signs warning of lead hazards in homes

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By Rachel Dissell, The Plain Dealer

CLEVELAND, Ohio – The city must placard with warning signs homes it currently knows have lead hazards that have not been fixed, an appeals court ruled late Wednesday.

The Ohio 8th District Court of Appeals, however, said it could not issue general orders to force the city to follow state provisions that outline steps to respond to lead hazards.

The court’s ruling comes a year after The Legal Aid Society of Cleveland asked the court to compel Cleveland Mayor Frank Jackson and Public Health Director Merle Gordon to comply with state laws and rules designed to protect children from being lead poisoned in homes, schools and daycares.

Legal Aid filed the lawsuit on behalf of a toddler who was poisoned in 2016 in the West Side rental home where she lived with her parents and siblings. Legal Aid argued that city health officials failed to notify her parents for months after a city investigation showed extremely high levels of lead dust in the home, including in the child’s playroom.

The case was about more than one child, Legal Aid attorney said at the time.

It alleged that the city “repeatedly and openly failed to enforce” the laws and the result of that inaction left hundreds of children living in the city at potential risk of being poisoned.

“Thanks to the ruling in this case, families looking to rent a home in the City of Cleveland will be better informed of which homes are not safe for children and pregnant woman,” Legal Aid Director of Development and Communications Melanie Shakarian said in an emailed statement on the ruling. Read Legal Aid’s full statement here.

The city has 30 days to comply with the ruling, although it is unclear the exact number of rental units as of May 23 the city had determined were hazards that had not been fully remediated.

An Ohio Department of Health database shows 99 Cleveland addresses as of this month where property owners have not fixed lead hazards for more than a year and are considered “non-compliant.”

The ruling also orders the city to ensure that the warning placards that declare the home is unsafe for human occupation remain posted until the hazard no longer exists.

City spokeswoman Latoya Hunter said the city was still reviewing the court’s decision, which came late yesterday. Hunter said in an e-mail that so far, the city placarded 38 properties in May of 2017, and 42 properties in April of this year.  She added that “the City is beginning its next round of home placarding next month.”

The city said late Thursday in a release it would placard 189 homes in June. Hunter told a reporter that was “just the next round” and separate from the ruling the city was still reviewing.

City had backlog of unresolved cases

In recent years, city officials admitted that for more than a decade it failed to respond, investigate and follow up in all cases where blood tests showed that children under 6 were poisoned by lead.

Since then, the health department has worked to update the status of more than 3,000 lead-poisoning referrals and to hire enough qualified investigators to keep up with hundreds of new lead poisoning cases a year that, under an agreement with state health officials, it is required to investigate.

The city also for more than a decade did not consistently comply with the state requirements to post signs and order that residents vacate homes investigations find pose dangers for young children and pregnant women because of hazardous levels of the toxic metal, often present in older homes with deteriorating paint.

In April 2017, The Plain Dealer, as part of its “Toxic Neglect” series reported that eight months after promising it would start posting the hazard warnings it still had not done so.

The Plain Dealer documented at least 340 instances where the city in a 14-year span had failed to warn the public of a lead hazard. Some of the homes poisoned multiple children, according to state and city records.

City officials initially called the state law optional when, in fact, it was mandatory. Later, city officials cited worries of displacing families, calling placarding a “last resort tool.”

“We continue to work the cases until we get to that point. We’re not there. We just have not placarded,” Chief of Public Affairs Natoya Walker Minor told reporters in 2017. “That’s just the honest truth.”

In May 2017, several weeks after the story ran, the city announced in a Tweet that it had started to placard homes as part of the Mayor Frank Jackson’s Healthy Homes Initiative. The city listed 38 addresses to be placarded, though some of the homes had been demolished.

Legal Aid filed the lawsuit the following day citing the slow pace at which the city was working to address the problems and the huge obstacles parents face in identifying housing without lead hazards.

The city previously had no way for residents to check and see if home they wanted to rent or buy had unremediated lead hazards. The city now includes that information in a searchable web portal that contains information on building and housing permits and violations.

Earlier this month, the city announced a second round of placarding that included 51 homes found to be hazardous, some as long ago as 2003. The owners had ignored repeated orders to fix the hazards, city officials said.

Catching up

In responses to the Legal Aid lawsuit, which the city argued should be dismissed, attorneys outlined its efforts in recent years to more effectively respond to lead poisoning referrals by hiring additional staff, ask state health officials for assistance in investigating cases and to create a tracking system to ensure that reports that document lead hazards and orders to fix them are sent by both certified and regular mail to parents and property owners.

City attorneys also noted that the state’s own rules, contained in a manual, for how to properly follow up on the cases, had changed.

The court also ordered the city to supply the parents of the toddler, referred to as S.P. in the lawsuit to protect her identity, the original investigation health officials failed to provide in December 2016 that identified 38 areas of the rental home with lead hazards. The city didn’t issue orders to control the hazards until March 2017.

The family has since moved from the rental and the city on February 1, 2018placarded the home with warning signs, according to a court filing.

The lawsuit did not request monetary damages and each side was ordered to bear its own court costs.

The court’s opinion, by Judge Mary Eileen Kilbane, also denied a number of Legal Aid’s requests that the court deemed were not permissible under the type of lawsuit filed, called a mandamus action. Such as ordering the city to:

  • Issue lead hazard control orders within a week of identifying lead hazards.
  • To fully comply with other state laws and administrative rules pertaining to the investigation and remediation of lead hazards.

Shakarian said preventing childhood lead poisoning isn’t a problem resolved by a single court decision. Legal Aid would continue to represent families impacted by lead poisoning and work with community partners to educate citizens about their legal rights as tenants, she said.

“Because of the devastating developmental consequences of lead poisoning, no other community investments in children can succeed if children do not live in lead-safe homes,” Shakarian said.

Click here to read the Plain Dealer article.

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