A Lucas County judge has sided with Toledo in its ongoing efforts to enact a lead-safe certification rental law.
Judge Gary Cook of Lucas County Common Pleas ruled Oct. 31 that the city’s ordinance, which in part grants the Toledo-Lucas County Health Department the authority to inspect properties for the purpose of issuing a lead-safe certificate, should be allowed under the law.
In his decision, Judge Cook wrote that the ordinance “does not create an unconstitutional delegation of municipal powers under the facts presented in this case.”
The summary judgment came in response to plaintiff and landlord Charmarlyn Strong’s challenge to the lead law. The judge denied Ms. Strong’s motion to permanently enjoin the city from enforcing its lead ordinance.
“The judge agrees that we have the ability to work with the health department to enforce our lead safe laws,” said Dale Emch, Toledo’s law director. “We’re going to keep fighting to enforce this because at the end of the day, we are trying to protect children from being poisoned by lead.”
The facts of the case were not in dispute and the city along with Ms. Strong’s attorney, Andrew Mayle, had sought a summary judgment, a legal mechanism intended to resolve the matter short of a trial. The arguments by the involved parties rested on whether or not the ordinance can legally be enforced. Both the city and the Toledo-Lucas County Health Department say the law should be enforced, while Mr. Mayle maintained that it should not.
As a result of this decision, Mr. Mayle has appealed the case to the Sixth District Court of Appeals.
In a recent interview, he said an outside agency cannot be charged with enforcing the laws that an elected body — in this case, Toledo City Council — has enacted. Mr. Mayle argues that a system of government in which a municipality outsources enforcement of its ordinances to an outside agency is contrary to the structure of the statute and Ohio law in general.
“It’s just a back to the basic theory of government,” Mr. Mayle said. “An outside agency that is not elected cannot enforce the laws of a municipality. It’s just a fundamental issue of political governance.”
Since 2016, Mr. Mayle has challenged Toledo’s lead law. Throughout the lengthy legal process, the lead ordinance has been modified three times.
In the latest version, owners of residential rentals with four or fewer dwellings built before 1978 are required to have their properties inspected for lead paint while also obtaining lead-safe certificates from the health department.
In addition, a local lead inspector must visually inspect properties’ interiors and exteriors and collect dust wipes to test for compliance with U.S. Environmental Protection Agency standards.
Potential fines for violations could reach $10,000 annually. Lead-law violations would be handled in housing court as first-degree misdemeanors, similar to other building nuisances.
The city will likely wait to implement the ordinance as litigation continues, Mr. Emch said.
“We’re going to keep on doing what we need to do in the courts until eventually we are going to get to enforce our law,” Mr. Emch said.
There is no safe blood lead level in children, according to the Centers for Disease Control. Lead exposure can cause damage to the brain and nervous system, slow growth and development, and affect learning and behavior problems, and hearing and speech problems. It can also cause lower IQ and decreased ability to pay attention, leading to underperformance in school.
Lead paint was banned in 1978 but is still found in many homes, especially in Toledo, where 92 percent of the city’s owner-occupied housing stock was built before 1980.
Local health officials have long pointed to residential rental properties in Toledo’s blighted housing stock as being the primary source of the poison.
Mr. Mayle said he doesn’t want children poisoned and does not support blight, but is skeptical of the manner in which this ordinance is being implemented.
“I think that they are using a sledge hammer here when they should be using a scalpel,” he said. "Ms. Strong is a responsible citizen and belongs to a responsible local trade association of property owners.
“This ordinance, even if it were legal, is bad policy because it does not focus on the truly bad actors. Simultaneously, entire groups of property owners are excluded," Mr. Mayle added.
First Published November 17, 2023, 6:41 p.m.
