Mayor Vetoes City Council's Lead Paint Bill Cites Difficulties for Landlords

Mayor Michael R. Bloomberg last month vetoed the New York City Childhood Lead Poisoning Prevention Act, which was intended to replace Local Law 38 and correct lead-based paint hazards in housing, schools, day care facilities and playgrounds.

The bill, commonly referred to as Intro 101A, was an effort by city council members to adopt a new lead paint abatement law following a state Court of Appeals decision July 1, 2003 that invalidated the current Local Law 38. The City Council will next determine if they have the votes necessary to override Mayor Bloomberg's veto or if an override fails, alternate legislation would need to be drafted, according to Lupe Todd, a council spokesman.

Local Law 38 was one of a series of local laws that govern how property owners address the health hazards that result from the presence of lead-based paint in residential buildings. Local Law 38, which was passed by the council in 1999 and signed into law by former Mayor Rudolph Giuliani, replaced Local Law 1 of 1982. New York City was the first municipality in the country to ban the sale of lead-based paint in 1960.

Bill Useful But Flawed

Bloomberg notes in his veto message that the incidence of lead poisoning cases has significantly declined over the past three decades, calling it a "remarkable public health success story."

"For instance in 1970, there were 2,649 children with blood lead levels that were 60 micrograms per deciliter or greater, a level that requires immediate medical attention; by last year, cases at that level had plummeted to 8," the mayor wrote. "More recent statistics are also impressive - from 1995 to 2002 alone, the number of children with blood lead levels of 100 micrograms per deciliter or greater declined almost 80 percent - from 21,575 to 4,876 children."

While applauding the improvement, Bloomberg says he realizes that in some communities, elevated blood lead levels persist. Safe remediation of lead paint hazards is a critical component to eliminate childhood lead poisoning, Bloomberg pointed out. The bill does contain some useful elements in that it would require worker training and lead dust testing requirements, but also contains several troubling elements, he says. Passage of the bill, says Bloomberg, would not only have been a tremendous hardship to landlords but would also have adversely affected the city's affordable housing stock.

"First, this bill may result in negative unintended consequences that will affect the affordable housing stock of the city. Increased demands on landlords (such as difficult and probably unachievable timeframes and unreasonable tort liability exposure) as well as the possible unavailability of insurance may result in the deterioration of the city's housing stock," Bloomberg says.

Stricter Compliance

Intro 101A was tougher on landlords and recognized lead dust as a hazardous substance. The legislation would also have required that peeling lead paint be removed from public schools and day care facilities; that lead-painted playground equipment be entirely removed, and that trained workers in full compliance with federal safety guidelines perform all labor involving lead paint remediation and removal. Additionally, dust clearance tests would have been necessary as part of an owners' certificate of correction of a violation. Inspections would have examined underlying causes of deteriorated, peeling paint or evidence of friction or chipping, and made owners correct those conditions.

The proposed legislation, explains Todd, was much stricter in that it would have corrected more types of dangerous conditions, and made it easier to sue landlords for non-abatement. Intro 101A also raised the age of children covered back to less than seven years of age. The bill also would have required additional action by landlords each year if residents fail to respond to the annual notice inquiring whether or not a young child resides in their unit. For non-compliance with the distribution of notices and inspection provisions, owners would have been hit with fines and penalties - including imprisonment for up to six months. Inspections, in some instances, could have been required more frequently.

Local Law 38, on the other hand, was more limited in that it only monitored renovation projects and required landlords to regularly inform tenants about lead safety guidelines and to inquire about the residency of children under age six. Building owners had to apply safety precautions when preparing all vacant units and any apartment in which families with children under six resided had to have been annually inspected for lead paint. Opponents criticized Local Law 38 because it lacked provisions to monitor and remove lead dust and set no time frame for owners to complete repairs.

Bloomberg expressed concern that families with children would be discriminated against because of the strict lead paint provisions and that the city's housing agencies could be sued for failing to mitigate lead paint hazards.

"The bill may expose the city to numerous tort actions stemming from its regulatory conduct in inspecting for lead paint hazards, and in performing emergency repairs when owners fail to do so. It is estimated that the city's tort exposure in this regard could easily exceed $200 million per year," Bloomberg says. He adds that the bill placed strict mandates on Housing Preservation and Development (HPD) to successfully conduct the thousands of inspections and repairs that the agency performs on an annual basis. The bill would have required that HPD inspect a private apartment within 14 days after a violation correction date to determine whether the violation was, in fact, corrected. If that does not occur or HPD is denied access to the apartment, the agency conceivably could be sued, says the mayor.

The bill also called for covering up or repainting deteriorated window sills, requiring owners to immediately abate or cover every window sill accessible to a young child. This could be prohibitive as up to 2.8 million window sills could be included under this mandate, Bloomberg says.

"Finally, the bill fails to protect conscientious owners from potential tort liability even when they comply with all components of the bill. Specifically, lead paint may be presumed in tort liability cases even when owners have complied with all aspects of the annual notice, investigation and remediation requirements and thereafter are not notified of a new lead paint hazard in a dwelling unit," the mayor says.

Lead Paint Prevention

The New York City Coalition to End Lead Poisoning, Inc. (NYCCELP) has filed various lawsuits against the city over the years in an effort to improve compliance. Matthew Chachere, an attorney with the Northern Manhattan Improvement Corporation, who represents NYCCELP in its current action against the state and the city and supports Intro 101A, called Bloomberg's veto "off-base."

Chachere believes that given the support for the bill in the city council that an override is certainly possible. He cites Bloomberg's arguments against the bill depleting the affordable housing stock as "unsupported and logically absurd." He says that the belief that the city can't provide safe and affordable housing with stringent lead paint regulations in place is a fallacy and the exact same argument was presented when the window guards law and similar safety measures went into effect. "I think it's certainly possible for the city to require certain safety measures in housing without dramatically affecting its availability. The same issue came up over window guards. The same issue came up over disability access. And in addition, the actual research that's been done on the enforcement of housing codes concerning lead hazards has never shown that to be the outcome. They found out that, in general, the housing did not become unaffordable, unavailable or deteriorated but, in fact, improved."

Chachere also said at no time during the six public hearings on the bill did anyone testify that insurance rates would increase, insurance coverage would be unavailable, or that the city would suffer from additional liability should the lead paint legislation pass. "The same standards of liability in [Intro] 101 have been in the city law for the last 21 years," he says. Local Law 1, for example, required the complete removal of all lead paint or the covering of all lead paint in a dwelling, and that was passed in 1982, he says.

Additionally, Intro 101A requires reasonable efforts by landlords to mitigate lead paint hazards and they will not be held liable unless strong proof exists that a child was poisoned because of their inaction, he adds. "You need to prove causation in a lawsuit. You need to prove there was lead and you need to prove that it caused the poisoning of a child. That's no change. It's the exact same language that's there. And frankly, it makes no sense to put that spin on it."

The majority of property owners maintain their buildings properly and in a safe manner, he says. "Responsible, conscientious property owners are not the problem. They're not held liable because they don't poison kids. If they are irresponsible, who is supposed to pay for it - the parents, the kids, the taxpayers?"

Chachere says the stated time frames in the bill regarding code enforcement were adjusted to meet the city's request. "It's extremely difficult to hold the city responsible in code enforcement efforts to liability. Cases like that are few and far between and generally they involve cases of outrageous conduct by the city. It's not just your average code enforcement effort. The only kind of cases where the city has been held liable is where they sat on things for years," he says. "It's beyond just a straight code enforcement issue."

One important aspect, he says, is making sure that common areas and hallways are free of lead paint. Those are areas where children can become poisoned or where lead dust can be tracked into people's apartments, he says. Common area maintenance, he adds, is typically the purview of the landlord and the co-op and condo board. Neither Local Laws 1 or 38 account for lead paint removal in common areas, says Chachere.

"To a large extent, Intro 101A doesn't have a tremendous impact on co-op corporations. I don't think there's much of a ramification other than they should be keeping the hallway in good repair, which one would assume a co-op would be doing anyway," says Chachere. "Obviously they should be required to do repairs in common areas using appropriate measures to contain the dust if it involves lead paint - which, of course, makes a lot of sense. A reasonable, responsible board, in any event, would want to make sure they didn't create any exposure to any of the occupants of the building, whether it's a proprietary leaseholder or a tenant." And, Intro 101A, while a tougher standard in certain instances, doesn't give the city specific enforcement powers to cite for a violation within a common area, he says.

An override and eventual passage of this bill could lead to chaotic circumstances, believes Robert Grant, director of management at Midboro Management. Grant notes that a recent language change in the bill actually strips the entire lead paint law of its liability and enforcement power as that it no longer applies to co-ops or condos if the units are owner-occupied. "This is the stupidest, most bizarre thing I've ever seen. There is no lead paint law for co-op owner occupants or condo owner occupants. You could have a shareholder being told now 'tough luck' if their kid is poisoned," because of a peeling paint problem or a water leak that causes paint damage, which is potentially the responsibility of the co-op or condo. "They tricked the whole City Council."

Debra A. Estock is Managing Editor of The Cooperator.

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