After decades of advocacy from community groups and dogged reporting by the local press, Cleveland adopted its lead law in July of 2019. The Lead Safe Cleveland Coalition–a public-private partnership with hundreds of active participants, all of whom share a vested interest in lead poisoning prevention–launched in January of 2019 with the goal of making Cleveland “lead safe” within 10 years. The lead law reflects this deep engagement between grassroots and community groups, landlords and realtors, the philanthropic community, educational and medical institutions, as well as public agencies. Its holistic, systems-based approach, along with the fact that there is a broad swatch of interests with skin in the game, make it one of the most robust programs passed to date. We will have to monitor as the law gets implemented to ensure it lives up to its promise.
Program Design
Who does the inspection? Licensed, third-party inspectors
Which units are inspected? All “residential rental units” (i.e., any dwelling with someone living there) built before 1978. Law does not apply to unoccupied units where the owner does not receive any compensation for the unit, or owner-occupied units.
What do they look for? All residential rental units provide a clearance examination report or lead risk assessment in order to obtain a required Lead-Safe Certification.
But the Certificate of Rental Registration, established by § 365.02 and described below, can be revoked for any non-compliance with various aspects of the housing code. § 365.09 of the lead law does give the city authority to conduct inspections to determine compliance with all applicable laws.
How often are the inspections? Lead-Safe Certification required every 2 years beginning in March of 2021. Initial phase-in based on a quarterly schedule to be developed by the Department of Building and Housing
What do you do if you find a lead hazard? A unit must submit a clearance examination report or a lead risk assessment in order to obtain its Lead-Safe Certificate.
Accountability and Enforcement
Presume lead in pre-1978 buildings and prohibit lead hazards Yes, the law presumes lead hazards in pre-1978 buildings and declares lead hazards a nuisance. It prohibits various activities causing lead hazards, including renovation without complying with lead-safe work practice or activities that circumvent the inspection and disclosure requirements.
Require Inspection as a Condition of Renting No city inspection is required, but landlords are responsible for subjecting the property to a clearance examination report or lead risk assessment to obtain Lead-Safe Certification, which is required every other year for all residential rental units built before 1978.
Rental registration with fees to identify who city should inspect and to fund the program
Landlords must annually get a Certificate of Rental Registration, which costs $70 for each rental unit. The application must include the owner’s and the managing agent’s name and contact information, including email addresses. The Certificate includes the Lead-Safe Certification status of the unit. The purpose of the Rental Registration requirement is to ensure that the City has contact information for all landlords so that periodic rental inspections can be scheduled.
Ensure adequate staffing and technology to support the program
The Lead Safe Cleveland Coalition notes the need to develop a workforce to inspect and remediate homes in order to implement the lead law. It is not yet known how many assessors/contractors will be required, but the phase-in approach of the law, on a quarterly basis, was intended to create a year-long supply of jobs for potential contractors. The Lead Safe Cleveland Coalition emphasizes the need for contractors to come from the neighborhoods where they will be doing the work, so as to build trust with renters in the communities. Cultural competency was a key underlying principle.
Escalating administrative fines/tickets for non-compliance that city collects and deposits in fund to support the lead program.
No escalating fee structure, but the law has several hooks for enforcement. The ordinance gives city staff a right of entry to inspect residential premises for purposes of ensuring compliance with the law. City staff can revoke a Certificate of Rental Registration for failure to comply with any provision of the city’s lead law. Building and Housing officials may issue a notice of violation to correct the violation. If the violation constitutes a nuisance that may endanger health, they may order immediate abatement of the nuisance. The officials may take steps to control the nuisance. A Violation of a lead hazard prohibition is a misdemeanor.
Any person who violates the disclosure rule is liable to the purchaser or lessee for one month’s rent or one month’s mortgage payment. Cleveland can charge up to $200 to landlords who fail to update information in the rental registry.
Tenant protections Landlords must disclose the lead status of a rental unit before leasing it and give the tenant a copy of the most recent lead clearance examination or risk assessment. The Commissioner may relocate the occupants until the residential unit, child day-care facility, or school passes a clearance examination. The costs and expense of the relocation may be recovered by certifying those costs to the County Auditor, to be placed on the property as a lien to be collected as other taxes and returned to the City. Cleveland prohibits retaliation by landlords where a tenant complains of violations, but it does not limit eviction proceedings to units without violations. Landlords are explicitly authorized to increase rents in response to additional costs related to the lead-safe certification program. The lead law requires the City to conduct an annual review of the lead-safe certification program to “determine if tenants have been unduly displaced” and to “identify any other negative unintended consequences.” Upon a finding that negative impacts are occurring, the provision requires the City to “re-evaluate the program and work toward eliminating any negative impacts.”
Legal mechanisms: Create private right of action for tenants whose landlords violate the law and Limit eviction proceedings to units with no violations (clean hands law)
The law creates a private right of action for tenants whose landlords violate the lead disclosure requirements and allows a non-profit environmental health or housing rights organization to bring an action on behalf of an aggrieved individual or individual(s) for violations of this section. If successful, the organization can recover its costs, including staff time. Also, any person damaged by a nuisance caused by a violation of the lead law may sue to prevent, terminate or otherwise remedy the violation. The law also attempts to limit the City’s liability for damages for personal injury related to lead poisoning by claiming it does not create a duty to the public that would give rise to a negligence lawsuit.
Public database of all rental units and inspection results No. The lead law states all applications, certifications, and other documents submitted for lead-safe certification are public records, but it does not require the maintenance of a public-facing database.
The Lead Safe Cleveland Coalition (see below) recommended to City Council that additional funds be appropriated to the Department of Building and Housing to create a platform for a “publicly accessible database with [a] list of Lead Safe homes.” In December of 2019, as part of a package to implement the new lead law, the City allocated $100,000 to upgrade the Department of Building and Housing’s software system, which is accessible to the public and will allow residents to track lead-safe certification status, among other things. (https://www.cleveland.com/metro/2019/12/5-million-investment-in-lead-safe-home-fund-funding-for-lead-safe-auditor-signed-by-mayor-frank-jackson.html) This portal builds off data that was collected by the city’s previous registry, which was established prior to the creation of the new proactive rental registration regime and relied on voluntary registration, therefore failing to cover all rental units in the city.
Periodic reporting of number of units inspected and results + metrics to determine effectiveness A Lead-Safe Advisory Board is charged with, among other things, quarterly reporting on the lead-safe certification program “and other lead poisoning prevention related efforts.” The quarterly reports are to be submitted to City Council, certain city departments, and a non-governmental organization such as the Lead Safe Cleveland Coalition. The Lead Safe Cleveland Coalition has established a range of metrics and data points that they will be monitoring to evaluate the program.
Public oversight mechanisms The 7-member Lead-Safe Advisory Board consists of at least two representatives from the Lead Safe Cleveland Coalition or similar organization, one representative from the landlord community, and one from the realtor community. The Lead-Safe Advisory Board is, among other things, tasked with issuing “recommendations for improvements to the City’s Lead-Safe Certification Requirement.”
Auditing processes Cleveland’s lead law requires that the Department of Building and Housing designate a Lead-Safe Auditor who is charged with monitoring the lead-safe certification process to ensure efficiency and effectiveness. The Lead-Safe Auditor is responsible for maintaining a list of certified inspectors and contractors, and may be assigned additional responsibilities by the Department of Building and Housing.
The Lead-Safe Advisory Board is required to commission an external entity to produce an impact analysis of the lead-safe certification program. The Lead-Safe Advisory Board is required to review and report out on the findings of that impact analysis.
Revolving Fund to help landlords with repairs Yes. The lead law authorizes the city to create a program to loan equipment related to removing or controlling lead hazards. Outside of the text of the law, the Lead Safe Cleveland Coalition has secured funding from the philanthropic community and from the City of Cleveland for a Lead Safe Home Fund. The Lead Safe Home Fund provide a suite of financial mechanisms, including incentives, loans and grants for interim controls, to property owners to ensure compliance with the new law. The expected budget for the initial 5-year period is expected to be around $100M, which the coalition touts as an unprecedented reinvestment in neighborhoods that have been historically disinvested in. As of December 2019, the Coalition has successfully secured over $10M for the fund, including City invested a $5M investment by the City, $2M from the state, and $3.1M from the local philanthropic community.
The Lead Safe Cleveland Coalition is also coordinating the creation of a Lead Safe Resource Center which they envision as the “operating hub” for the entire lead-safe certification system. The Lead Safe Resource Center will provide services like outreach and education, resource navigation, a 24-hour hotline, and workforce development, among other resident and property owner services.
Ecosystem considerations
Meaningful stakeholder input in design and oversight Lead Safe Cleveland Coalition (a public-private partnership), which was instrumental in pushing the law over the finish line, boasts over 400 active members. This includes community groups, foundations, non-profits, medical institutions, public agencies, and landlords/property owners as well.
Do the math: budgeting and reducing harm The law requires landlords to register each rental unit on an annual basis with the City’s Department of Building and Housing. The application for a Certificate of Rental Registration is $70.
