Property investors sue Toledo, health department over lead ordinance

11/2/2017

A sign posted by the Toledo-Lucas County Health Department covers the door at 530 Acklin Avenue, warns people to stay out Thursday, May 4. The home's residents were given orders to vacate by the Toledo-Lucas County Health Department due to ongoing excessive lead contamination.

THE BLADE
Buy This Image

A Toledo landlord and the Property Investor’s Network have filed a lawsuit against City of Toledo and the Toledo-Lucas County Health Department board calling the city’s lead safe ordinance unconstitutional. 

The suit, filed Thursday afternoon in Lucas County Common Pleas Court, states the city does not have the authority to compel the health department to enforce the law, as it is outside the powers given to the department or its board by the Ohio General Assembly.

“The city cannot willy-nilly go around outside agencies and tell them what to do. It doesn’t work that way,” said attorney Andrew Mayle. “If [the city] thinks this legislation is a good idea, they should enforce it.”

Read the lawsuit filed against the City of Toledo and the Toledo-Lucas County Health Department

The suit cites a 2002 Ohio Supreme Court decision that stated the Toledo-Lucas County Health Department board did not have authority to enforce a county-wide indoor smoking ban. 

Mr. Mayle said this is a similar overstepping of authority.

“There has to be a line drawn somewhere,” he said. “If city council has the power to require a state agency to act, then city council will have the same power toward other state agencies.”

Mr. Mayle on Oct. 23 sent a letter to Toledo law director Adam Loukx asking him to file an injunction on behalf of the city calling the law unconstitutional and said he would take legal action if the city failed to do so.

In a written response Oct. 24 provided to The Blade by Mr. Mayle, Mr. Loukx said his initial impression was that the arguments were “meritless,” but said he will look into it and respond “on or before November 7,” which is Election Day. 

The lead ordinance, which City Council approved in August, 2016, requires rental properties with one to four units built before 1978 and home day care centers to pass a visual and dust wipe inspection and be certified “lead-safe.”

Enforcement authority was given to the Toledo-Lucas County Health Department. Council revised the law in April to create three staggered deadlines based on census tracts. The first deadline of June 30 affects approximately 12,500 properties. All properties subject to the law are to be registered by June, 2020. 

The suit also states the law creates “an irrationally unequal playing field” because not all residential properties are subject to it.

Paul Syring, general counsel for the city, said Thursday he had not yet seen the lawsuit but the city was “familiar with the constitutional arguments are being asserted.”

“We will give it our prompt, professional and due attention in the coming days and weeks.” he said. 

Health department spokesman Shannon Lands called the lawsuit “unfortunately another distraction from the real issue of protecting our children from lead poisoning.”

Mr. Mayle said his clients, the investor group and Toledo resident Cheryl Mack, who owns property subject to the law, declined to comment further.

The lead ordinance has faced fierce opposition from real estate and landlord interests, as well as some renters of older properties who have spoken out against the law in public forums. 

It is not the first legal challenge to the ordinance. Earlier this year State Rep. Derek Merrin (R., Monclova Township), unsuccessfully tried to attach an amendment to the state budget that would give all lead-related authority to the state, potentially usurping Toledo’s local control. 

Mr. Merrin, who owns investment rental properties in Toledo and in nearby suburbs, has since introduced a stand-alone House bill that attempts to do the same.  

Contact Lauren Lindstrom at llindstrom@theblade.com, 419-724-6154, or on Twitter @lelindstrom.