Edgar, Charles M., Jr.

Romley, Mark Ted

Taft, Jill A.

English

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2002 Survey of Rhode Island Law: Legislation: Public Health and Safety: An Act Relating to Health - Lead Hazard Mitigation

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Roger Williams University Law ReviewVolume 8 | Issue 2 Article 30Spring 20032002 Survey of Rhode Island Law: Legislation:Public Health and Safety: An Act Relating to Health- Lead Hazard MitigationCharles M. Edgar Jr.Roger Williams University School of LawMark Ted RomleyRoger Williams University School of LawJill A. TaftRoger Williams University School of LawFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Survey of Rhode Island Law is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion inRoger Williams University Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationEdgar, Charles M. Jr.; Romley, Mark Ted; and Taft, Jill A. (2003) "2002 Survey of Rhode Island Law: Legislation: Public Health andSafety: An Act Relating to Health - Lead Hazard Mitigation," Roger Williams University Law Review: Vol. 8: Iss. 2, Article 30.Available at: http://docs.rwu.edu/rwu_LR/vol8/iss2/30596 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 8:421Public Health. An Act Relating to Health - Lead Hazard Miti-gation. On June 25, 2002, the general assembly amended manysections of the Rhode Island General Laws as they relate to leadpaint mitigation. This is in effect a broadening of these laws. Ef-fective June 25, 2002. 2002 R.I. Pub. Laws ch. 187.SUMMARYReal Estate Brokers and SalespersonsSection 5-20.5-6 of the Rhode Island General Laws wasamended to require real estate brokers and sales persons who seekan initial license or a first renewal of their license after July 1,2004 to show proof of a reasonable familiarity and knowledge ofthe duties and responsibilities established by the Lead PoisoningPrevention Act and the Lead Hazard Mitigation Act of the RhodeIsland General Laws.1 This requirement will apply to the first re-newal of licenses issued after July 1, 2004.2Lead Poisoning Prevention ActNumerous sections of 23-24.6 were amended to broaden thepurpose of the statute.3 The new purposes are aimed at protectingthe public health and interest and seek:to establish rigorous, systematic enforcement of requirementsfor the reduction of lead hazards in properties where childrenhave been lead poisoned; and[ ]to define the role of the de-partment of health as the lead state agency charged with: (i)defining lead poisoning, (ii) establishing programs for screen-ing persons, especially children under the age of six (6) years,who are at risk of lead poisoning, (iii) setting standards foreliminating and reducing lead hazards in buildings andpremises, including dwellings where a child under the age ofsix (6) years who has been lead poisoned resides, (iv) provid-ing information to the public and segments thereof about therisks of lead poisoning, and (v) initiating enforcement actionsagainst persons who violate the provisions of this chapter orregulations promulgated pursuant to this chapter. The goal of1. 2002 R.I. Pub. Laws ch. 187 (codified as amended at R.I. GEN. LAWS § 5-20.5-6(c) (2002)).2. R.I. GEN. LAWS § 5-20.5-6(c) (2002).3. Id. § 23-24.6-3.SURVEY SECTIONthis chapter is to reduce the incidence of childhood leadpoisoning in Rhode Island to the greatest extent feasible.4The Act amends section 23-24.6-6 by establishing within thedepartment of health the interagency coordinating council on envi-ronmental lead, which became effective January 7, 2003.5 Thenew council will be comprised of six individuals and will coordinatethe activities of its member agencies.6 Its responsibilities will in-clude environmental lead policy, the development of educationalmaterials, drafting regulations aimed at reducing or preventinglead poisoning, and enforcement of laws, regulations, and ordi-nances pertaining to lead poisoning and its prevention.7The amendment requires the council to make a report to thegovernor, the speaker of the house, and the president of the senateon or before March 1 of each year on the progress of the lead pro-gram and recommendations for any potentially necessary changesin legislation." The report shall describe at a minimum, for eachcity and town, the occurrences and severity of lead poisoning inthose locations; a description of educational programs; and anyregulations adopted. 9 The report must also state the number ofenforcement actions undertaken; the number of enforcement ac-tions closed or completed by successful remediation or other rea-sons; and the number of enforcement actions remaining open. 10Amendments to section 23-24.6-17 concern lead hazard reduc-tion. Effective July 1, 2004, the change to this subsection removesthe innocent owner status previously accorded to dwelling own-ers. 1 As of that date, limitations on the liability of an innocentowner will no longer apply where any incident of childhood leadpoisoning is reported to the department of health.12Amendments to section 23-24.6-23 speak to compliance andenforcement and require the department of health to establish acomprehensive, integrated enforcement program.' 3 The program4. Id.5. Id. § 23-24.6-6(a).6. Id. § 23-24.6-6(b)(1).7. Id.8. Id. § 23-24.6-6(b)(4).9. Id.10. Id.11. Id. § 23-24.6-17(a)(6)(b).12. Id.13. Id. § 23-24.6-23(b).20031 597598 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 8:421must ensure effective enforcement aimed at reducing the occur-rence of childhood lead poisoning by: focusing efforts on areas orstructures where childhood lead poisoning has a high incidence; onidentifying and prioritizing areas where multiple instances ofchildhood lead poisoning have occurred, and consistent with thelaw, to prosecute those persons on whose properties the multipleinstances have taken place, and on whose property lead hazardsremain uncorrected. 14 The powers of enforcement created by theseamendments do not limit or override any other enforcement availa-ble under existing law. 15Additionally, this section requires the attorney general tomaintain an office of lead advocate. 16 The advocate shall have thepower to investigate compliance with lead hazard reduction and toimpose civil or criminal penalties, fines, and injunctions. 17 Moreo-ver, the advocate is charged with establishing protectionist guide-lines to shield any tenant who reports the presence of lead in his orher home from retaliatory action by a landlord.' 8For rental dwellings inhabited by children under six years ofage or women who are pregnant, the act allows that following asecond notice of violation, rental property failing to meet the appli-cable lead hazard reduction standards shall be deemed abandonedand declared a public nuisance, "which is a menace to publichealth."' 9 In such an instance, the attorney general, certain non-profit corporations, the department of health or the city or townwhere the unit is located has the specific power to request that thecourt appoint a receiver for the property.20 The receiver is author-ized to apply for funding, including loans and grants that will beused to address the lead hazards and meet the hazard mitigationstandards. 2' The receiver may hold such property for as long asthe funding source requires, ensuring compliance with the purposeof the funding.2214. Id.15. Id. § 23-24.6-23.16. Id. § 23-24.6-23(c).17. Id. § 23-24.6-23(c)(1).18. Id. § 23-24.6-23(c)(4).19. Id. § 23-24.6-23(d).20. Id.21. Id.22. Id.SURVEY SECTIONHigh-risk properties are also addressed by the amendments. 23The department of health is required to notify an owner whoseproperty meets the following conditions:(i) there have been three (3) or more at risk children underthe age of six (6) years with at least environmental interven-tion blood levels and (ii) fifty percent (50%) of children underthe age of six (6) years from the premises who have beentested have had at least environmental intervention bloodlead levels, that the premises present a high risk of leadpoisoning. 24Any owner of property who fails to abate the lead hazard afterreceiving notice that the dwelling is high risk may be subject tofelony prosecution. 25State Affairs and GovernmentTitle 42 of the Rhode Island General Laws entitled "State Af-fairs and Government" has been amended by adding chapter 128.1- Lead Hazard Mitigation, to be known as the Lead Hazard Miti-gation Act.26 The purpose of this legislation is to promote the pre-vention of childhood lead poisoning in Rhode Island, specifically:(1) To increase the supply of rental housing in Rhode Islandin which lead hazards are, at a minimum, mitigated; (2) Toimprove public awareness of lead issues and to educate bothproperty owners and tenants about practices that can reducethe incidence of lead poisoning; (3) To resolve disjointed in-surance practices arising from lead liabilities exclusions. 27Section 42-128.1-6 adds amendments establishing an educa-tional program.28 In order to achieve the purposes of the LeadHazard Mitigation Act this section creates a comprehensive educa-tional program targeted at those who should be informed of thehazards of lead paint.29 The section provides that the Governor,the department of health, and the housing resources commissionshall together sponsor a series of public service announcements23. Id. § 23-24.6-23(e).24. Id.25. Id. § 23-24.6-23(e)(5).26. Id. § 42-128.1-1.27. Id. § 42-128.1-3.28. Id. § 42-128.1-6.29. Id.5992003]600 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 8:421about the nature of lead hazards, the importance of lead hazardcontrol and mitigation and other information about the act.30Section 42-128.1-8 addresses amendments directed at dutiesimposed on property owners of rental dwellings constructed priorto 1978. 31 Property owners of pre-1978 rental dwellings, whichhave not been made lead-safe now must mitigate lead hazards andmust comply with numerous requirements including:(1) Learn about lead hazards by taking a lead hazard aware-ness seminar; (2) Evaluate the dwelling unit and premises forlead hazards consistent with the requirements for a lead haz-ard control evaluation; (3) Correct identified lead hazards bymeeting and maintaining the lead hazard mitigation stan-dard; (4) Provide tenants: (i) basic information about leadhazard control; (ii) a copy of the independent clearance in-spection; and (iii) information about how to give notice of de-teriorating conditions; (5) Correct lead hazards within thirty(30) days after notification from the tenant of a dwelling unitwith an at risk occupant, or as provided for by section 34-18-22.32The section also addresses duties of new owners of pre-1978 rentaldwellings. 33 If the rental unit is occupied by an at-risk occupant,these owners have up to sixty days to comply with the require-ments for lead hazard mitigation, as long as the new owner hasarranged to have the property visually inspected in cases wherelead hazard mitigation requirements had not been met by the pre-vious owner. 34 The requirements for lead hazard mitigation shallapply to the first change in ownership or tenancy after July 1,2004. 35Section 42-128.1-9 addresses insurance coverage. Providers ofinsurance to rental property owners may not exclude coverage fordamages arising from lead poisoning.36 As of July 1, 2004, insur-ers issuing commercial and personal lines of insurance must in-clude coverage for liability arising from lead poisoning that isequal or greater than underlying policy limits for personal injury/30. Id. § 42-128.1-6(1).31. Id. § 42-128.1-8.32. Id. § 42-128.1-8(a).33. Id. § 42-128.1-8(b).34. Id.35. Id. § 42-128.1-8(c).36. Id. § 42-128.1-9.SURVEY SECTIONbodily injury coverage provided under such policies issued to resi-dential rental owners.3 7 Insurance companies may, however, re-quire rental owners to prove compliance with the strictures of thisact.38 Rates for lead poisoning coverage will be reviewed by thedepartment of business regulation to ensure that they are not "ex-cessive, inadequate, or unfairly discriminatory."39Section 42-128.1-10 of the act addresses the right to housingwhere lead hazards have been corrected. This subsection grantspregnant women and families with children under the age of sixthe right to live in housing that has been lead-abated. 40 A right toprivate action has been established for "households that include anat-risk occupant" that will allow injunctive relief against owners ofrental dwellings who fail to comply with the standards of lead haz-ard mitigation.41 Relief in these cases may include reasonable at-torneys' fees.42Section 42-128.1-11 states that lead hazard control standardsand mitigation standards in pre-1978 housing are to be considereda basic housing standard and will be enforced by the provisionswithin this chapter.43 Additionally, this section has as its goal,consistency between state and local programs for enforcing certainhousing standards, establishing a means of identifying cases ofnoncompliance, and providing for consistent enforcement of the re-quirements of this act.44 These standards shall go into effect onJuly 1, 2004.4 5Charles M. Edgar Jr.Mark Ted RomleyJill A. Taft37. Id. § 42-128.1-9(c).38. Id.39. Id. § 42-128.1-9(e)(1).40. Id. § 42-128.1-10.41. Id. § 42-128.1-10(1).42. Id.43. Id. § 42-128.1-11(a).44. Id. § 42-128.1-11(b).45. Id.20031

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2002 Survey of Rhode Island Law: Legislation: Public Health and Safety: An Act Relating to Health - Lead Hazard Mitigation

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