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A civil lawsuit seeking to block Toledo’s lead ordinance has forced the city to push back its deadline for residential properties to be certified as lead safe as landlords face the potential of $10,000 fines.
After a similar 2016 ordinance was struck down by the court system, Mayor Wade Kapszukiewicz worked with city council to craft an updated version of the Toledo Lead Ordinance, which then passed in December, 2020.
The ordinance requires that owners of 1-4-unit residential rental properties or family childcare homes built before 1978 have their property inspected and certified lead-safe, as well as register their property with the county auditor. Inspections must be completed by a local lead inspector who visually inspects the interior and exterior of the property and collects dust wipes to ensure it’s up to U.S. Environmental Protection Agency standards.
The lawsuit was filed Monday in Lucas County Common Pleas Court.
The city has agreed to not enforce the lead paint ordinance until Aug. 1 after the original deadline to get certified and register properties with the Lucas County auditor was June 30. The ordinance would apply to about 6,000 Toledo properties.
Gretchen DeBacker, the city’s director of marketing and communications, said that the city is still actively working to resolve the issues that have been raised in the complaint.
“The parties have agreed to meet and try to resolve issues that are potentially outstanding in the plaintiff’s claim and trying to avoid any protracted litigation,” she said.
Ms. DeBacker added that even with the deadline, the ordinance “is going to be implemented.”
“Residents and landlords are encouraged to still take steps to ensure that their properties are lead safe and begin the process,” she said.
Judge Gary Cook of Lucas County Court of Common Pleas signed a consent order on Tuesday confirming the deadline extension. The plaintiff, listed as Charmarlyn Strong of Toledo, has agreed not to pursue a temporary restraining order hearing.
Her representation, Perrysburg-based attorney Andrew Mayle, said that he does not believe that the ordinance should be enforced at all, but that the parties agreed that the lawsuit does not need “immediate attention from the court” if the ordinance is not enforced.
Mr. Mayle said that the lawsuit was filed in an effort to bring issues forward before enforcement of the ordinance began.
“We could have sat back and just not complied and waited for them to try to cite somebody and raise this then, but we didn’t think that was the right way to go about it,” Mr. Mayle said. “We just wanted to be upfront. We asked the city to fix it themselves, they did not, so we filed our lawsuit.”
The city and the Toledo-Lucas County Board of Health are the listed defendants.
Along with the complaint Mr. Mayle included a letter from himself to Toledo law director Dale Emch dated for June 21. It asks the city to “restrain the abuse of Toledo’s corporate powers.”
The letter goes on to list three primary issues being alleged with the ordinance: there is no “coherent” penalty for violations, it assumes the health department has “statutory powers” that it does not, and that it offends the “exclusive jurisdiction” of the Toledo Municipal Court. Mr. Mayle called the ordinance a case of “legislative malpractice”.
“If this is truly a public health issue, why are most residences being left out? Why are owner-occupied [units] being left out? Why are big apartment units being left out?” he said. “We think if they’re going to do this to be a level playing field, just make everyone play by the same rules.”
Although there is only one plaintiff listed in the complaint, Mr. Mayle said that the ordinance would likely impact “hundreds or thousands” of property owners, should it go into effect.
Those who don’t comply could be subject to fines of up to $10,000 per unit, according to the ordinance. Mr. Mayle’s letter argues that individuals cannot be in violation of section of the code in question because it “merely describes the process for obtaining a so-called ‘Lead-Safe Certificate.’”
The letter also argues that the health department does not have the ability to issue such a certificate, because it is a “creature of statute with limited enumerated powers.”
The initial deadline only applies to properties in the most at-risk census tracts. According to the ordinance, deadlines are set for units in various tracts on June 30 and Dec. 31 for every year until the end of 2026.
According to Judge Cook’s order, parties must update the court on the status of the issue by late July.
