Toledo's proposed lead paint rental inspection law

The City of Toledo is considering an ordinance that would create an inspection law for rental properties that might contain lead paint.

The EPA's lead paint rental notice required for
all leases when property is rented.

Lead paint was outlawed in 1978 and Toledo has a number of homes built before then that could still have lead paint in them. Exposure to paint dust or ingesting paint chips could cause lead poisoning, especially in children. In 2014, the lastest year for which information is available, there were 239 children less than 6 years old that had lead poisoning, according to The Blade.

Under the proposal, rental properties would have to be "deemed safe" of lead paint. Owners/landlords would have to get a "lead safe certificate" - and, of course, pay a $45 fee. There would be a visual inspection and testing of dust.

If lead was found, it would have to be abated (completely removed) or interim measures would have to be taken (like painting over the old lead paint). If the lead is abated, the certificate would have to renewed every 20 years. If only interim steps are taken, the certificate would have to be renewed every four years.

This is the first time the dangers of lead paint have been addressed in Toledo. According to Toledo Parent:

In 2012, the Toledo-Lucas County Health Department received a grant for $2,480,000 from the Department of Housing and Urban Development for Lead Based-Paint Hazard Control. The Health Department contracts with the City of Toledo, Department of Neighborhoods, to provide the funds for removing lead, budgeted at approximately $10,000 per dwelling, each taking three to four weeks. The 3-year program, received a one-year extension until June 30, 2016. Its goal: to treat 175 units and make them lead-free, with priority given to households with children under age six or a pregnant female.

Robert Cole, attorney for Advocates for Basic Legal Equality, reports that the program did not meet its goals. Between 2013 and the present, there were 559 intakes (people who expressed an interest in the program). Of those 186 received applications, and 157 of those met the eligibility requirements Of the 157 , only 62 have received clearance to be occupied.  With  typical removal time at 3-4 weeks, and with less than six months until the unused grant money must be returned, it is unlikely the goal will be met.

Toledo Parent also says that the city's proposed ordinance was drafted with help from the Toledo Lead Poisoining Prevention Coalition. That group, under the auspices of ABLE includes Toledoans United for Social Action, Toledo Public Schools, The Cherry Street Legacy Project, the NAACP and representatives of the University of Toledo nursing school.

But landlords are not happy about the proposed requirements - or the costs. As the Toledo Parent article mentions, the cost to remove lead paint is approximately $10,000. Certainly, painting over the lead paint is cheaper, but whichever option is selected, the additional costs will eventually, in some form or another, be passed on to the tenant, raising the cost of rent in the area.

There's another potential problem for Toledo and their efforts: Baker v. Portsmouth. 

In that case, a group of landlords sued the Ohio city of Portsmouth over its rental inspection law. The city's position was that many homes were being occupied by renters without knowing if the buildings were safe or up to existing building codes. Portsmouth had a large number of code complaints from rental properties. The solution, the city decided, was to require a Rental Dwelling Certificate of all properties available to rent. In order to get the certificate, a dwelling had to be inspected and any defects corrected. The fee for the inspections/certificate ranged from $50 up to $480 depending on how many rental units the dwelling contained.

Any owners who failed to schedule their properties for inspection were threatened with having the property condemned.

The lawsuit maintained that such inspections were a violation of the owners' Fourth Amendment rights by mandating warrantless inspections without probable cause. The court agreed and found for the landlords, requiring Portsmouth to return all inspection fees it had collected.

In making the decision, the court considered the goal of the city was the health and safety of the public, but ruled that such "special needs" were not sufficient to overcome the owner's Fourth Amendment rights.

However, in the Portsmouth case, it was the city doing the inspecting. Toledo's proposal requires private inspections, so it may not rise to the level of a Fourth Amendment violation.

But there is a federal requirement that requires disclosure to purchasers or lessees of property, including a 10-day period the purchaser or lessee to inspect for the presence of lead-based paint hazards.

One has to wonder how so many children are getting lead poisoning if the parent(s) are notified upon renting about the potential for lead-based paint in the property. Do they just gloss over the information? Do renters understand the ramifications of the notice? Do they decide to go ahead and rent because they don't understand the dangers or because they really want the unit?

If that is the case, this would seem to be an issue of education rather than of requiring a governmental action.  But this is Toledo where the mayor and council routinely create laws whenever the problem is one of individual ignorance or lack of education.  Heaven forbid that city officials believe individuals can be responsible for themselves.