Area lawyers confident in city lead laws

State Rep. Merrin disputes ordinance’s constitutionality

5/29/2017

Loukx

THE BLADE
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State Rep. Derek Merrin’s contention that Toledo’s lead ordinance is unconstitutional would be difficult to prove, the city’s attorneys and a legal scholar at the University of Toledo say.

They say it doesn’t have to cover all property owners if the city can show it had a “rational basis” to focus just on one to four-unit rental properties in the city.

However, a conservative nonprofit law group in Columbus says it would have a better than 50 percent chance of having it struck down.

In a guest column published recently in The Blade, Mr. Merrin (R., Monclova Township) attacked the city’s law as providing unequal protection, something the Constitution frowns upon. He said that was why he submitted an amendment — adopted in the state House of Representatives — to override Toledo’s bill.

“It targets a small minority of property owners and treats them unequally under the law. Toledo’s law applies only to rental properties with one to four units built prior to 1978 but exempts apartment complexes and owner-occupied homes built prior to 1978,” Mr. Merrin wrote.

He contended that the law is also unconstitutional because only some, not all, children are protected from lead poisoning.

“Can you imagine Toledo officials convincing a judge that children living in a duplex-rental property should be protected differently than children living in a five-unit apartment building?” Mr. Merrin wrote. “Toledo’s law is intellectually inconsistent and undercuts its own premise by seeking to protect only a select group of children. All property owners and children should be protected equally under the law.”

Toledo’s ordinance, adopted last year by city council and amended in April 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” in order to rent to tenants.

Mr. Merrin, a real-estate investor whose district includes western Lucas County and most of Fulton County, inserted an amendment in the state budget bill on the House side that would pre-empt the city’s use of home-rule power to regulate lead paint poisoning. It awaits action in the Senate.

Several lawyers contacted by The Blade said Toledo’s law doesn’t violate the Constitution — or at least the Supreme Court’s interpretation of it.

City Law Director Adam Loukx said that argument is disproved easily because of the evidence collected showing small, older homes split up into apartment units are responsible for most of the lead poisoning.

“It’s an absurd point. A judge would say, ‘I can’t believe you would come in here and try to make an equal protection argument,’ ” Mr. Loukx said. He called Mr. Merrin’s guest column published May 20 “puerile.”

Lee Strang, a UT law professor, said the Supreme Court has approved laws that don’t tackle a huge problem in one bite but approach it in increments.

“What the U.S. Supreme Court has said is that state and local governments can go one step at a time,” Mr. Strang said. “Let’s say the problem is children being exposed to lead. Toledo would say we’re going after one-to-four units, and then we’ll go to the next ones later.

“Representative Merrin would have to come up with arguments that Toledo’s choice of addressing the problem one step at a time would be irrational,” Mr. Strang said.

Maurice Thompson, executive director of the 1851 Center for Constitutional Law, a public interest law firm in Columbus, said a good case could be made under the state Constitution for unequal protection.

He said apartment-building owners had the political power to be exempted from the ordinance.

“The apartment association is a very powerful lobbying group in most cities and single-family [rental] home owners don’t have an effective lobbying group. They don’t have the same influence at city hall,” Mr. Thompson said.

Robert Cole, managing attorney for Advocates for Basic Legal Equality, a public interest law firm and a member of the Toledo Lead Poisoning Prevention Coalition that proposed the legislation, said he’s very confident that the Toledo ordinance will be upheld.

“It was pretty clear to us that there was well beyond a rational basis for the city of Toledo to take the action, especially when you look at all of the risk assessments done over the last three to four years in terms of where children are being lead-poisoned,” Mr. Cole said.

He said assessments show virtually 100 percent of lead poisoning of children occurs in homes that have one-to-four rental units or owner-occupied single-family homes.

Advocates of the ordinance say single-family rental homes and duplexes are more prone to be older and not as well-maintained as apartment buildings.

The state Senate health and Medicaid subcommittee is to meet Tuesday to decide which amendments stay in the Senate version of the budget bill.

Andy Herf, a lobbyist for the city of Toledo, said he hopes the amendment is deleted.

“There is a lot of opposition to doing this in the budget bill and to pre-empting something that’s designed to help children,” Mr. Herf said.

Contact Tom Troy: tomtroy@theblade.com or 419-724-6058 or on Twitter @TomFTroy.