Posted July 19, 20198:12 pm
Written by Rachell Dissell in The Plain Dealer on 07/19/2019
CLEVELAND, Ohio – For months, community leaders have worked steadfastly to build the political will to support a now-proposed lead-poisoning prevention law.
The city’s proposed strategy is built around a mandate that requires landlords to get inspections and lead-safe certificates for rental properties constructed before 1978, the year lead-based paint was banned for residential use.
The legislation is working its way through City Council, with additional hearings set next week, where it will be publicly discussed, debated and tweaked based on feedback received since the ordinance was introduced in June.
Councilman Tony Brancatelli said he’s not yet comfortable greenlighting the legislation and wants assurances that there will be enough city staff to roll out the program and enforce it, and adequate resources committed to help landlords and families.
“My responsibility is to make sure whatever is passed can be implemented,” said Brancatelli. The legislation has to pass through Development Planning & Sustainability committee he chairs before it goes to the full council for consideration.
Mayor Frank Jackson is a co-sponsor of the legislation, and is expected dedicate money to the effort, but his cabinet members have said city can’t be expected to shoulder the costs of such an enormous undertaking alone.
Lead Safe Cleveland Coalition (LSCC) members say they are working hard to drum up investments and donations for a public-private Lead Safe Home Fund that would help pay for workforce training and funnel grants and loans to landlords, tenants and homeowners.
The state budget passed this week allocates up to $2 million to seed the fund over the next two years, distributed as a match to local investments.
Clear and constitutional
City Council’s legislation hinges on landlords who register their rentals paying private inspectors to ensure that their rental units don’t contain lead hazards.
If landlords don’t comply, they can be given a citation, which can be paid like a traffic ticket, Building & Housing Director Ayonna Blue Donald explained at a recent LSCC meeting. The penalty is currently $90 for an individual and $500 for a corporation, she said.
If they still don't comply, they can be cited again or issued a violation notice that can result in a misdemeanor in Cleveland’s housing court, at the discretion of the city’s law department.
Landlords and some LSCC members have asked that the city clarify how the penalties would work. LSCC had recommended the city rely on civil penalties and fines, but city attorneys said criminal penalties would be more in line with existing law for other housing code violations.
Abigail Staudt, a managing attorney for The Legal Aid Society of Cleveland, said it is important for landlords to understand what would happen at each step in the process, including when and how the penalties escalate.
Clarity is also important because attorneys and landlords have raised questions about whether, as written, the law would be targeted in court.
Courts for decades have held that in order to enter a property owner’s home without consent, a warrant is needed, said Jonathan Witmer-Rich, a professor of law at Cleveland State Marshall College of Law.
Imposing criminal penalties for landlords who don’t get the inspections could be challenged as a “warrantless search,” which courts have held as unconstitutional for decades. If there’s no consent or no warrant, the criminal penalty is not constitutional, he said.
Cleveland has a “right of entry” provision in its code that calls for a warrant to be obtained before a home is entered for inspection, but the process isn’t explicitly stated in the proposed law.
Attorney Rebecca Maurer said she struggled with threading that penalty needle when drafting similar lead prevention legislation that Cleveland Lead Advocates for Safe Housing (CLASH) proposed. Initially, the group’s legislation included criminal penalties for landlords who didn’t comply. After talking to local and national housing law experts, studying court decisions and looking at how similar laws played out in other cities, Maurer said she reworked that group’s legislation to first impose civil penalties.
“What is clear is that you can’t simply criminalize the failure of a landlord to let an inspector in,” she said.
That might be true when the inspector works for the municipality. But Cleveland’s proposed law requires landlord to hire private inspectors.
That’s more of a gray area, said Witmer-Rich.
Councilman Blaine Griffin, a sponsor of the legislation, said last month that he “strongly” believed that the law could withstand any constitutional challenge. He also said he was working with council attorneys and others to make any needed changes to the current language.
Building & Housing Director Donald told city council at a June hearing that she and her staff were working on a plan to roll out the lead-safe certificate program to make sure the process is “smooth for all who are involved” by the law’s implementation date of March 2021. Under the current proposal, the city would roll out the program a few ZIP codes at a time.
The Building & Housing and the Law departments already struggle, Brancatelli said, to keep up with enforcing current housing code violations for things like peeling paint.
That’s an issue raised by numerous landlords, including one who answered a recent Plain Dealer and WCPN 90.3/ideastream survey. “Cleveland cannot properly inspect and follow-up on properties now,” wrote one landlord, who said they owned more than 10 single- and multi-family homes on the West Side. “I have no belief the city can properly manage a new program when they have no credibility in administering existing programs.”
One thing council could do, Brancatelli said, is set a date before enforcement is set to begin and make sure everything — the staffing, the funding, logistics — are all in place.
“I’m going to be pretty clear that we have to do that,” he said.
Willingness to enforce
The city’s willingness to use warrants, if needed, to enforce the lead inspection mandate is a big question.
It’s rare for the city to seek a warrant to enter an occupied home in a housing court case, even though courts have created a streamlined standard.
Police criminal investigations require “probable cause” based on individual suspicion and knowledge of a crime.
In housing-related cases, the U.S. Supreme Court in 1967 created a process for what are often referred to as administrative warrants, which allow municipalities to create inspections programs to uphold health and safety standards in housing, while protecting people from government invasions of privacy, the court said.
City officials refused to discuss the warrant issue with The Plain Dealer, including whether the city had a policy on using administrative warrants or how the law department makes those decisions.
The key to successfully preventing lead poisoning in rentals isn’t writing or passing a law – it’s enforcing it, said Emily Benfer, a visiting law professor at Columbia Law School
Benfer and students at Columbia’s Health Justice Advocacy Clinic have studied what they call pre-rental inspection laws in 17 cities and states, all aimed at reducing lead poisoning.
The methods for enforcement differ: from allowing tenants or community agencies to file civil cases against non-compliant landlords to waging high administrative fines or using specialized housing courts or dockets make sure rentals are inspected and remediation is completed.
To work, they have to be uniformly followed. “It's not enough to pass a law,” Benfer said.
Historically, and in recent years, the city has been reluctant to enforce the housing standards it sets.
Cleveland has had a requirement that landlords register their rentals for more than a decade. Only about a half of the estimated city rental units are currently registered — though that is an improvement from 5 years ago when a third or less of the units were registered.
Both the city’s current rental inspection program and the proposed lead-safe certificate are based on that registry.
The rental inspection program started in 2017 is meant to ensure that units meet basic safety standards.
Technically, the inspections are required but the only units inspected are ones where landlords have registered their rentals with the city andproperty owners or tenants let the city in, unless there’s a complaint about a violation filed or an inspection is ordered by the housing court. The city competed 13,733 inspections as of last month. Most homes inspected have passed.
The city hasn’t taken action, however, including getting warrants when landlords decline or refuse an inspection.
Cleveland Housing Court Judge Ron O’Leary said he couldn’t pinpoint the roots of the city’s stance around housing code search warrants.
“As long as I’ve been dealing with things, it’s always been there,” said O’Leary, who previously worked in city’s Law department and headed the Building & Housing department.
O’Leary said he personally understands the reluctance to force entry into an occupied home absent serious conditions.
“I can’t even say how uncomfortable I am with that,” he said.
Often the city tries other avenues first, such as offering help or incentives, he said. Or looking for exterior housing violations, which can create a different route to bring a property owner into court and leverage the court’s ability to order an inspection as a condition of probation.
What is legal and what, from a public relations or community standard are tolerable, aren’t always the same, O’Leary said.
“It’s one of those things that just because you can legally do something, doesn’t mean you should do it,” he said.
That doesn’t mean O’Leary wouldn’t sign such a warrant.
If a landlord refused an inspection, he said, and the city brought him an administrative warrant, he said he would carefully review it to make sure the city took reasonable steps to get the property owner to comply – sending a letter, physically going to the home and knocking on the door.