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Cleveland landlords have questions about lead-safe legislation’s fairness, feasibility. Here are some answers

Posted July 21, 2019
7:23 pm

Written by Rachel Dissell, Jordan Grzelewski, and Nick Castele in The Plain Dealer on 07/21/2019

CLEVELAND, Ohio – What concerns do landlords and property managers have about Cleveland's proposed lead legislation, which would require rentals to be inspected for hazardous levels of the toxin?

We asked, and they answered, sharing their perspectives with The Plain Dealer and WCPN/90.3 ideastream.

The number of landlords we heard from, nearly 80 who answered our survey, 100 including those who called or emailed, is relatively small when you consider the number of rental units in Cleveland is estimated at 85,000 to 100,000.

Collectively, however, they raised a host of concerns and questions about the legislation, which was introduced last month and based, in part, on recommendations from the Lead Safe Cleveland Coalition.

The most common concerns included:

  • Cleveland isn’t capable of carrying out a lead-safe certificate program.
  • The law would be an extra burden on “good” landlords who already register their properties and would have no effect on scofflaw landlords who refuse to register or test their units.
  • Provisions in the law aren’t adequately rooted in local data regarding rentals or sources of lead exposure.
  • The law would put an unfair financial onus on landlords, and not the historical makers of lead paint, or on government entities that failed to enforce housing code in the past.

Many of the landlords also told us they felt they had a responsibility to provide a safe home, and some said they believed that having a lead-safe home could improve the value of their property.

City council will continue its public discussion of the proposal at a July 23 hearing.

Below, we answer some of the most frequently raised questions.

Why does the proposed city ordinance apply only to rental properties and not all homes if the health and safety of children is the issue?

Lead Safe Cleveland Coalition (LSCC) members and city officials shared several reasons for putting the law’s focus on rental properties, though both rentals and owner-occupied properties constructed before 1978 are at risk for lead hazards if not maintained.

Practically, the city and its partners said they decided to build off Cleveland’s rental registry and rental inspection programs. The coalition said it based its recommendations on “science and national best practices.”

There’s no perfect or easy way to compare risks in rentals and owner-occupied homes.

Not all kids are screened for lead poisoning and not all poisoning cases result in an investigation and verification of a lead hazard.

However, there is evidence that rentals pose a higher lead-poisoning risk for young children.

Researchers from Case Western Reserve University’s Center on Urban Poverty and Community Development, who are advising the Lead Safe Cleveland Coalition, calculated high-, medium- and low-risk areas of the city based on the number of children poisoned. In census tracts where the risk for lead poisoning is high, 69% of the housing units are rentals, compared to 42% of the housing units in low-risk areas.

“This idea that neighborhoods with higher proportions of rental housing have higher proportions of children testing positive for lead, that is not just a finding in the city of Cleveland,” said Claudia Coulton, director of the center. “That tends to be found in many places.”

The Plain Dealer looked at nearly 400 Cleveland properties with health department orders to clean up lead hazards from 2014 through mid-2018 and compared them to properties Case researchers flagged as rentals, using multiple factors.

Of the matching addresses, 73% were rental properties in 2018.

Although the legislation’s requirements would apply only to rental units, city council doesn’t want to exclude homeowners from the conversation about lead paint, Councilman Kerry McCormack said.

“We want to make sure that through our Lead Safe Resource Center that homeowners have the ability to learn about lead safety and have the ability to engage in that conversation to ensure that their homes are lead safe as well,” he said.

Owner-occupied homes are not covered under the proposed law. The health department can order remediation if a child is poisoned in an owner-occupied home and lead hazard is found.

How do we know that children are not being poisoned by water that flows through pipes that are made of lead or sources other than paint in their home?

There’s no way to precisely determine the source of lead in a child’s body. From decades of research, we know children most often ingest the toxin by putting a hand that touched lead dust in their mouths or consuming paint chips or other items coated with lead paint or dust.

In Ohio, when blood tests show that a young child is poisoned at a level that requires action from health officials, investigators look for potential sources of the exposure based on where a child spends time. The investigators test to determine where lead hazards might exist, including using a machine to locate lead-based paint and testing dust or soil in a home. They can also collect other items for testing.

In 2016, the Ohio Department of Health took a look at the sources of exposure from investigations health officials conducted and found that lead paint and lead dust were by far the most frequent. Lead paint was a source in 86% of the cases where a source was identified.

Investigators don’t test for all possible sources, though. For instance, a public health investigator might not test water if hazardous levels of lead were already found in paint, dust or soil.

Children can ingest lead by drinking water that has flowed through lead pipes or fixtures. In many Cleveland neighborhoods, more than 30%, and as many as 90%, of city service lines could contain lead. Homes also often have internal plumbing or fixtures that contain the toxin.

Cleveland Water, the public water system, treats the water that leaves its distribution facilities with an additive called orthophosphate, which creates a coating on lead pipes to prevent the lead from leaching into the water.

The water system serves more than 1.5 million customers in 80 Northeast Ohio communities and is required by federal and state law to test drinking water from at least 50 home faucets every 3 years. Testing is done in conditions most likely to identify a problem: during warm weather, from homes with known lead service lines and drawing water that remained in the pipes for at least 6 hours.

Those tests show good results; it’s a rare occurrence to find lead.

However, Cleveland Water relies on volunteers, and in recent years, many of the samples collected have not been in neighborhoods were lead risks are highest and many of the samples are collected by city or water department employees or contractors.

Tests also aren’t automatically done when the risk of exposure is at its highest: during road construction, service pipe or water meter replacement, home demolitions or renovations.

Why will this law apply in rentals where no children live?/Am I allowed to not rent to tenants with children?

It is illegal under federal, state and local law to deny housing because a prospective tenant has children.

Fair housing laws include protections against discrimination based on familial status, which means landlords cannot refuse to rent to pregnant women, families with children under the age of 18 or a person who is in the process of obtaining legal custody of a minor. The only exception to this is for designated senior housing that complies with federal law.

Fair housing protections extend to how landlords advertise and discuss their properties with prospective tenants.

Beyond the issue of discrimination, the city’s proposed lead-safe law applies to rentals where no children live for other reasons.

“While children may not be residents to the unit, they may visit the unit and spend significant time there,” said Abigail Staudt, an attorney with the Legal Aid Society of Cleveland. “For example, perhaps a grandmother, aunt or even a neighbor watches the child while the parents are at work. That unit needs to be free from lead hazards, too, even though those children are not residents.”

Why has the city not held Sherwin Williams and other companies that sold dangerous lead-based paint accountable?

City and community officials have often talked about holding companies that produced and sold lead-based paint accountable to help remedy the lead-poisoning problem.

The company most often singled out is Sherwin-Williams, which was founded here 150 years ago and employs more than 3,000 people at its local headquarters.

Sherwin-Williams is a member of the Lead Safe Cleveland Coalition and company officials have been “actively engaged,” spokesman Mike Conway said.

The company is prepared to commit to help with workforce training, including the U.S. EPA required Lead Renovation, Repair and Painting, Conway said. The company also will donate paint and supplies, he said, though the amounts have not yet been determined, and will offer discounted materials.

The company has collaborated with the Cuyahoga Metropolitan Housing Authority to train people to maintain and replace paint safely and already supports efforts like Habitat for Humanity and Rebuilding Together.

An Ohio law enacted in 2007 made it nearly impossible for municipal or government entities, or anyone, for that matter, to sue paint makers over lead contamination on the grounds that the toxin was a public nuisance.

Before that, several cities, including Columbus, Toledo, Cincinnati and East Cleveland, were gearing up for lawsuits against national paint companies in hopes of securing money to help them fund lead cleanup.

Cleveland declined to sign on to the lawsuits and Mayor Frank Jackson never publicly shared his reason for that decision.

Lawsuits in some other places fizzled, but a 2017 lawsuit in a California court just resulted in a $305 million settlement by Sherwin-Williams and two other companies that used to make lead paint.

In 2016, Sherwin-Williams officials told The Plain Dealer that the responsibility for dealing with lead poisoning rests with landlords and the government — not paint companies that stopped producing lead-based paint decades ago. Sherwin-Williams stopped selling residential use lead-based paint in the United States in 1937, company officials said.

“The fact of the matter is there are a lot of dilapidated homes in Cleveland,” Robert Wells, senior vice president for communications at Sherwin-Williams, told The Plain Dealer.

What can landlords do to hold tenants responsible for upkeep in a home?

State law spells out the obligations tenants have in terms of maintaining properties, including keeping the property “safe and sanitary.”

If a tenant fails to comply with these requirements, the landlord can bring an action against them, according to Staudt. Tenants are not liable for “normal wear and tear” to the property, she said. Most landlords collect a damage/security deposit in case of damage.

Under Ohio law, it is the landlord’s responsibility to comply with “applicable building, housing, health and safety codes that materially affect health and safety” and to make repairs.

Tenants have a duty to inform landlords of any issues with the conditions of the unit so the landlord can make a repair, particularly if it’s an issue that could get worse if left unattended.

But, Staudt said, “The overriding law is that the landlord has a duty to keep the unit in a fit and habitable condition. I don’t think there’s any lack of clarity that a unit with lead hazards is not meeting that standard.”

How did the city arrive at an interval of every 2 years for a lead-paint inspection?

Inspection intervals vary in cities and states with similar laws aimed at reducing lead hazards. Some places require inspections when a new tenant moves in; others require inspections in intervals from 1 to 6 years.

The city looked to federal Department of Housing and Urban Development guidelines for its 2-year requirement, according to Emily Lundgard with Enterprise Community Partners, one of the LSCC partners.

HUD requires reevaluations every 2 years for public housing and multi-family properties that contain lead hazards. The agency requires visual assessments, but not full lead-risk assessments, in properties that accept housing vouchers, unless a child is found to be poisoned there. Public housing and multi-family properties that pass two consecutive 2-year reevaluations can be exempt from further ones.

Cleveland’s proposed law doesn’t have that type of exemption, though council members and coalition partners have stressed plans to examine data and make adjustments over time. The legislation would require the city to evaluate the program each year “to determine if tenants have been unduly displaced and to identify any other negative unintended consequences.”

Under Cleveland’s proposed rules, landlords do not have to obtain a lead certification every 2 years if they provide the city with a comprehensive report showing that they’ve fully abated lead paint. That means contractors have removed lead paint and dust, replaced surfaces and fixtures painted with lead, permanently enclosed remaining lead paint and removed or covered lead-contaminated soil. The abatement report must have been completed within the last 20 years.

The reason inspections need to be repeated, according to Akbar Tyler of Environmental Health Watch: Paint deteriorates over time on surfaces exposed to regular impact and friction.

The opening and closing of windows grinds layers of paint into dust. Paint on staircases wears away as people walk up and down them. Water leaks can break down paint on walls.

“If you’re not doing all abatement, removing all the lead, interim controls require ongoing monitoring,” Tyler said. “You have to consistently make sure the paint is intact and it’s not creating a hazard.”

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