Lawmaker calls Toledo lead ordinance unconstitutional

Budget bill would void local rules

4/29/2017

Anthony Weaver, a lead clearance technician with Lead Paint Detectives, demonstrates a home test on a window in March.

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The Ohio lawmaker responsible for a House Republican budget bill provision that would give the state sole authority on lead abatement said the city of Toledo’s lead ordinance is “unconstitutional” and “targeted discrimination against a small minority of property owners.”

State Rep. Derek Merrin (R., Monclova Township) in a statement Friday said Toledo “plans to generate millions of dollars in revenue from fines on property owners who are unable to comply.” He declined to return phone calls seeking comment.

David Welch, the environmental services director at the Toledo-Lucas County Health Department, said the law does not create a profit-making situation for the city or health department.

“We will create a grant system to offset the cost of maintenance for conditions identified by lead inspectors,” he said. “If there is money, we would put that into a grant fund to offset the costs so it goes back into the program. ... The whole goal here is to make sure we take care of lead poisoning in children and if there are fines, we can take that money and set up a grant fund for landlords.”

Although Toledo’s law does not require abatement — but rather mandates that affected properties undergo lead-safe inspections, cleaning, and repairs — Mr. Merrin’s addition is seen as a possible attempt to usurp or weaken the city’s law, as it voids “any law or rule governing the abatement of lead, lead-based paint, or the employment or licensing of lead abatement professionals.”

The language calls regulation of lead abatement “a matter of general statewide interest” that should be handled uniformly.

The city law, passed by Toledo City Council in August and revised earlier this month to stagger implementation based on census tracts, requires rental buildings built before 1978 with up to four units and day-care centers to be certified “lead-safe.”

City spokesman Janet Schroeder said it is “ridiculous” to state the city would make millions from the lead law.

If property owners don’t comply, the fine would be $50 a day up to $10,000, said Shannon Lands, spokesman for the Toledo-Lucas County Health Department.

Blake Springhetti, a legislative aide for Mr. Merrin, declined to make the representative immediately available.

Mr. Merrin’s proposal would give the Ohio Department of Health “sole and exclusive authority to compel, prohibit, license, or regulate lead abatement activities within the state, including the licensing of lead abatement professionals and excepting only those activities for which oversight has been delegated by the Revised Code to boards of health.”

His statement Friday said: “The language reaffirms the Ohio Department of Health’s statutory authority and historical governance of lead issues. Lead safety is a statewide issue that requires uniform and comprehensive regulation.”

Mr. Merrin in the statement called Toledo’s law discriminatory, unenforceable, and poorly written, and claimed it would “decrease affordable housing options, increase tenants’ rental rates, depress property values, and illegally undermine state efforts to protect children from lead poisoning.”

His statement added he supports local control, but he would “not tolerate blatant discrimination by a city council.”

The Republican state representative is a real estate investor and former mayor of Waterville.

Mr. Merrin received at least $12,025 in campaign donations from real estate investors, Realtors, and a real estate political action committee the past two years. His campaign donations included contributions of $5,500 in September, 2016, and $5,000 in March, 2016, from a group identified as “Realtors PAC.”

Toledo’s lead law has been unpopular with many real estate agents and landlords, who packed city council meetings in the past year to call for its repeal or to ask that the provision requiring dust wipe tests be removed — efforts that were both ultimately unsuccessful.

Toledo Mayor Paula Hicks-Hudson pointed out Mr. Merrin is a landlord and claimed he “profoundly misunderstands” the problem, the inadequacy of existing state law, and what Toledo’s law actually says.

“Toledo would fully support a proactive state-law approach to prevent lead poisoning in children,” she said. “Unfortunately, Representative Merrin’s amendment does nothing to prevent lead poisoning or address worsening health threats. In fact, the amendment guarantees that thousands of Toledo’s children will become lead-poisoned in the future.”

The mayor also accused Mr. Merrin of catering to the interests of landlords.

“Representative Merrin is trying to give himself, and other landlords, safe harbor to keep unsafe and unregulated rental properties in the market,” she said. “Representative Merrin’s attempt to put profits ahead of the health of children is shameful.”

Toledo Councilman Peter Ujvagi, who has monitored updates on the implementing the law, blasted Mr. Merrin’s statement.

“He is wrong on every point,” Mr. Ujvagi said. “This legislation has been proposed and implemented in other cities — Rochester, N.Y., being the primary example — and it has not reduced the number of affordable units, it does not increase the cost of housing, and it has significantly improved the health of children.”

Mr. Ujvagi called it “an attack on Toledo’s home rule authority” that was reminiscent of the “knee-jerk reaction against the city when it tried to deal with predatory lending.”

Mr. Ujvagi said it would usurp the city’s law because it refers to all lead-related activity.

Council passed an amendment to the law on April 18 that extended the compliance dates for property owners with staggered deadlines of June 30, 2018; June 30, 2019, and June 30, 2020, based on the census tracts.

About 15,000 properties must be registered by June 30, 2018, officials said.

Ohio Department of Health spokesman Russ Kennedy said Thursday the department did not propose the budget item. He said Friday that department officials were still studying the language and declined further comment.

Contact Ignazio Messina at: imessina@theblade.com or 419-724-6171 or on Twitter @IgnazioMessina.