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Cleveland not yet enforcing lead cleanup, legal action gets results elsewhere

July 15, 2018

Cleveland not yet enforcing lead cleanup, legal action gets results elsewhere

CLEVELAND, Ohio—Now that hundreds of Cleveland property owners and tenants have received orders to vacate homes deemed dangerous due to unaddressed lead hazards, many are asking: What happens next?

It’s a question city officials are still working through, too.

In some Ohio cities over the past year, health officials have started sending some, or all such cases to court for potential legal action, and say they’re seeing results. Problematic homes, some that posed a threat to public health for years, are being cleaned up.

Cleveland, which has been reluctant to follow state law and issue orders to vacate due to concerns about displacing residents, has not yet taken any of its recent non-compliant property owners to court.

The city, through a spokeswoman, said that it will “work with the Law Department to determine the best course of action for each noncompliant property.”

It’s unclear how many of the more than 300 recently-placarded homes would qualify for potential legal action. The city is still working to correct an error that led to 30 properties, which had already been cleaned up, receiving orders to vacate. Officials also did not provide a deadline for proving compliance, but said that the health department is reviewing reports submitted by property owners who say their homes have been cleaned up.

The city has, however, gotten some results based on its placarding efforts, which started in May 2017. Though the city could not provide an exact number, a Plain Dealer search of addresses found at least a dozen homes that the city placarded were remediated or demolished in the past year. The number does not include homes remediated with federal grant money.

State law requires local health authorities to issue an order to vacate a property in which a lead hazard has been identified but not cleaned up when the owner has been given ample time (usually a year) to do the work. While the law is less clear about what must happen after this, the Ohio Department of Health’s regulations require a local health department to refer for potential legal action property owners who fail to vacate homes after receiving the order. Health departments have to check to see if a home is still empty at least twice a year.

Cleveland has little experience with enforcing such orders and has struggled with effectively communicating with the residents who received the notices last month.

While letters sent to landlords and residents said they had to leave the property, city officials also told affected families while posting the required warning signs on their front doors that they would not be removing people from their homes.

City officials in a recent meeting with The Plain Dealer said they will follow “normal nuisance enforcement policy procedures” against property owners who are “truly non-compliant” with lead hazard orders, meaning those who are not in the process of applying for grants to clean up their homes, actively cleaning up hazards, or waiting for contractors to begin work, among other scenarios.

City public nuisance law allows the Building and Housing commissioner to ask police to enforce an order to vacate, or to board or demolish a home that has not been cleaned up and poses a danger to public health. The city could also use the law to clean up the home itself, but said it will not do so.

The city also could charge property owners with a criminal misdemeanor violation of its health code, which carries up to a $1,000 fine and a six-month jail sentence. City prosecutors filed those charges, albeit erratically, in the past, with under 100 cases filed against property owners from 2010 through July 2015. In some of those cases, the lead was cleaned up by landlords or home owners who enrolled in renovation safety classes. The city dropped some of the cases after the properties were transferred, and some properties were later cited for again poisoning children.

When cases involving health code violations, like lead hazards, are filed, a judge can prohibit the property owner from re-renting the property. Violating that order can result in an owner being held in contempt of court and fined or jailed.

Legal strategies, outcomes vary

Columbus and Toledo, like Cleveland, had little to no experience with taking legal action against residents in non-compliant lead hazard cases before last year. When the state health department in May of 2017 released a list of 540 homes across Ohio that were noncompliant with lead hazard control orders and had received orders to vacate, Columbus had the biggest share, at 51 homes.

Toledo had 27.

Cleveland’s share was smaller, at 23, mostly because the city had not, to that point, been issuing many orders to vacate.

Some of the Columbus cases had been open for 10 years, meaning property owners were in theory aware of the problems and supposed to be working to fix them. Ohio health department regulations allow for 90-day extensions up to a year, in total, after an initial lead hazard control order is issued before a home must be ordered vacated.

In Columbus, all 51 cases have been referred to the city attorney’s office under civil nuisance code violations, city officials said. To date, 25 have been filed. Columbus began pursuing the cases in court in batches of ten to fifteen at a time, starting in October of 2017.

Since then:

Five cases have been cleared, meaning the home is cleaned up;One home is nearing clearance, with three-quarters of the work complete;Four homeowners have applied for grant assistance to fix the problems, and two have been accepted into Columbus’s U.S. Department of Housing and Urban Development (HUD)-funded grant program to help pay for their abatement;15 cases remain in some stage of the court process, with property owners either documenting progress on fixing the hazards in their homes, facing contempt hearings for not appearing in court, or awaiting pre-trial hearings.

In Toledo, where health authorities say they are filing both civil cases and pursuing criminal prosecutions, three of the 27 cases went to housing court last year, according to Toledo Lucas County Health Department Environment Director David Welch. In two of the cases, the hazardous homes were cleaned up, and in the third, the home was demolished.

Among the other cases, Welch said, were five homes that were owner-occupied and were not sent to court because the health department has decided not to pursue legal action in such cases. “We’re not going to send a homeowner out of the house,” Welch said.

Welch and a health department spokeswoman were unable to say if there are children currently living in those homes. 

ODH guidance on referring noncompliant cases for legal action “does not distinguish between occupied and vacant properties under an order to vacate because state law does not make a distinction,” spokesman Russ Kennedy said. Kennedy said ODH will “remind delegated local boards that there is no uncertainty about it.”

The remaining Toledo cases included nine that were cleared of hazards before reaching court, eight which are still placarded with warning signs and are vacant, and two homes where property owners have applied for extensions to complete necessary work.

Cincinnati had 47 properties with orders to vacate in May of 2017 and has been sending non-compliant lead hazard cases to court “for over a decade” according to health officials. City health department officials could not provide specific information on the current status of the 47 homes. The city has used both civil and criminal routes to pursue such cases.

The Ohio Department of Health, whose investigators handle lead poisoning cases for many cities and counties across the state, has referred 12 properties since November of 2016, to the Attorney General’s office for noncompliance with an order to vacate, according to spokesman Kennedy. Property owners agreed to keep the homes vacant in five cases, four cases have not yet been filed, two homes have been cleaned up, and the court ordered one to remain vacant, according to ODH records.

Another tool in the toolbox

Eric Zgodzinski, Toledo Lucas County health commissioner, said using the court has been helpful in getting action on homes with longstanding problems.

“You’d like to be able to say that everybody wants to do the right thing and as quickly as possible relative to getting a house up to code... but let’s face it, some do and some don’t,” he said. “So unfortunately, you have to use the court system to meet that expectation of that house being safe for kids to live in.”

Chris Grubb, program coordinator for Healthy Homes at Columbus Public Health, said reaction to the placarding and court process has been mixed.

“Tenants are typically unhappy with the scenario because they’re in a property that is now been deemed unsafe for human occupancy. I think that could be frustrating to any tenant,” he said. Owners are also frustrated, Grubb said, but many “knew it was coming.”

Before any legal proceedings begin, representatives from Columbus Public Health, the city attorney’s office, the city’s department of development (which offers relocation assistance), and Columbus Legal Aid try to help homeowners and tenants who enter the court process clean up the home and find temporary or permanent new housing, if necessary, Grubb said.

Ann Tomlinson, section chief of disease prevention in the environmental health division of Columbus Public Health, believes these “pre-meetings” with residents are making a big difference in helping clear cases.

Both she and Bragg say the placarding and prosecution process is speeding up the cleanup of these problematic homes.

Columbus and Toledo health officials said the process of sending lead cases to court for the first time wasn’t simple but that it improved over time.

“Looking back, I’d have to say that it wasn’t as daunting a task as we all thought at first,” Zgodzinski said. “I think any tool that you can put in your toolbox helps. This is just one of them.”

Plain Dealer reporter Rachel Dissell contributed to this story.

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