Philadelphia City Council, at the end of 2011, passed an ordinance that will dramatically effect some of our major clients, and hopefully will have an impact some of the work we do. Philadelphia City Ordinance 100011-A, colloquially called the “lead based paint disclosure ordinance,” amends the city code to require that a rental property be certified as either “lead free” or “lead safe” before it may be rented.
The law takes the approach of being a disclosure ordinance; landlords are required to disclose this certificate that says that the rental unit is lead free or lead safe to their prospective tenants, and such a certification must have been acquired no more than two years prior to the start of the lease. However, what the law is actually accomplishing is something different. Essentially, as I read the text of the bill, it is requiring that the owner/landlord must have the unit inspected by a certified lead paint risk assessor and declared “lead safe” or “lead free” by the assessor. Lead free means that the house has no lead-based paint at all and is a permanent designation. Lead Safe simply means that the unit is free of lead based paint hazards and is only valid for 2 years. It should be noted that part of the requirement for “lead safe” certification includes the collection of lead wipe samples to assess any potential lead dust hazard. Lead wipe samples are a quantitative way of determining lead paint hazard, rather than the mostly qualitative methods of a risk assessment.
Of course, as we know, most properties in the city with lead-based paint are not free of any lead-based paint hazards. Therefore before a “lead safe” certification can be granted the owners will have to institute lead remediation or intermediate control measures, as determined by the risk assessor, after which the property will need to be reassessed before it can be certified lead safe.
And this brings us to the interesting part of the story.
While sitting in a café off of Logan Circle recently (doing work, of course), I was having a conversation about this ordinance with a friend, in particular regarding how it is suppose to take affect this December and yet we have not seen any indication that there has been widespread movement to come into compliance. I was allegorically discussing the nature of Philadelphia politics and regulations, and was overheard by a man sitting at the table next to me.
He informed me that he was one of the (former) council staffers who helped write the ordinance, and being a policy geek myself, we began discussing the nature of the political process. According to him, the primary purpose for this ordinance was to basically coerce L&I to enforce existing lead paint safety standards in the rental properties in the city. While L&I will do a nominal “inspection” of some rental properties as a requirement to their license, they mainly react to tenant complaints. As such, the ordinance was written so that when landlords apply for their rental license through L&I, the agency will look to see if the property is “lead safe” before issuing the license, thus completing a kind of proactive inspection. This is quite similar to how asbestos inspections work in the city; the asbestos inspection report form is due to L&I along with their permit applications.
However, due to the nature of Philadelphia politics, the Ordinance was instead held up in court, changes were made, parties were appeased, and the wheels continued to turn.
Regardless, the ordinance as it stands now was left largely intact, and is scheduled to go into effect in December. It will apply to all rental housing, with the following notable exceptions:
- Housing built after March 1978
- PHA housing (and Section 8 vouchers)
- Housing exclusively rented to college students
- Housing where no child 6 years or younger will be residing during the length of the lease
The last point brings up some significant points. First, the risk assessment only needs to have occurred a maximum two years prior to the START of the lease. Therefore, in large multi-unit housing, it would not be inconceivable for each unit to have a different inspection date, based on when it is leased out. I would hope landlords would realize the logistical challenges to this approach, and the benefits of economies of scale, but who knows? Second, the wording of the bill does not require the landlords to identify the age of the tenants in order to determine if their rental unit meets the above criteria. If the city discovers that the landlords are in violation, then they will be subject to penalties, but there may not be a reporting requirement as written
Copies of the inspection and the “lead safe” or “lead free” certification must be provided to the Department of Public Health and the tenant with every new lease, along with a notification that the tenant will contact the owner or the owner’s agent if they see any deteriorated paint. The owner must promptly make any necessary repairs. Penalties for not complying with the lead free or lead safe certifications include an order to provide the required certification and to do the work to make the property lead safe; damages for any harm caused; fines up to $2,000; refund of rent for the period the property is occupied without the certification; and attorneys fees and costs.
Do you have any comments or questions about this new ordinance? Feel free to leave a comment below or contact me at email@example.com.