City exempts itself from lead paint law

I want to lose my new job.

No – not my job as a columnist at I love that job. But another job that I have.

Specifically, I want my brand spanking new “EPA Certified Lead Dust Sampling Technician” license to become worthless – a license I spent $195 on and a full day of my life in a classroom and lab in North Philadelphia acquiring last month.

I don’t want my technician’s certification to become null and void because Philadelphia’s housing stock is lead free or lead safe. It isn’t. In fact, it’s very possible that the lead levels in our properties are elevated and quite dangerous to a young person’s brain and developing nervous systems, causing learning disabilities and behavioral problems. And that could hurt our children.

Our “children.”

How many times do we hear our politicians talk about “our children?”

I want my license to resign in shame because our City Council and Mayor approved the draconian “Lead Paint Disclosure and Certification Law” – a misleading, confusing, and anti-landlord law that gives Philadelphians a false sense of physical safety for "our children.”

The truth is that the most vulnerable of “our children” – the truly poor and the disadvantaged – are not worth a damn according to this new law because, guess what, they are excluded, unprotected, and vulnerable to lead poisoning.

And, as I said when testifying against this legislation, the politicians who passed this law “have blood on their hands.”

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On Dec. 21, 2012, the Lead Paint Disclosure and Certification Law went into effect. It mandated that all private landlords in the City of Philadelphia would have to ensure that properties rented to families with children 6 years or younger were lead safe. The legislation, sponsored by Councilwoman Blondell Reynolds Brown, and passed a year earlier, forces landlords of properties built before 1978 to conduct lead paint testing each and every time a new tenant with children 6 years or younger moves in – even if no dangerous traces of lead were found during earlier tests. The logic is that traces of lead paint can chip away over periods of time and exceed the safe levels determined by the EPA. The testing is good for 24 months, and must be repeated if a new tenant enters into a lease after the 2-year expiration.

Got that?

By the way, these tests are expensive (averaging about $300-$400), few people are licensed to conduct them, and, most likely, only a small percentage of those with the license have any meaningful experience with lead other than taking and passing a one-day course that I did.

I may have an MBA from Columbia University, but as my wife could tell you, I have no handyman skills. Paraphrasing the late Texas Sen. Lloyd Bentsen from his famous Vice Presidential debate with VP Dan Quayle, “Featherman, you’re no Mr. Home Improvement.”

“If a landlord is forced to pay for this, it becomes an economic issue. If the landlord rents to someone it doesn’t have to pay extra fees for, it may be construed as discrimination,” said Michael Sher, the real estate broker of Pine Realty. “This will put a real hardship on landlords who rent in low income areas.”

And for everyday that a tenancy is created without the City of Philadelphia receiving a lead free or lead safe certificate signed by the technician and the tenant, there is up to a $2,000/day penalty assessed to the landlord, with the landlord unable to legally collect rent during that period.

“Money talks,” former Philly Congressman Michael Ozzie Myers once said.

Harvey Spear, the president of HAPCO – the Homeowners Association of Philadelphia – agreed that the new law will hurt landlords in the pocketbook, which, in turn, will trickle down to tenants. “60% of all people [in Philadelphia] are tenants. This is a real concern in lower-to-moderate housing, where the tenant can’t afford an increase in rent.” Will it mean that landlords will simply get out of the rental business? “I’m not sure they can sell,” said Spear, adding that the tax increases from the Actual Value Initiative and the lead paint exams will price many tenants out of an affordable home. A study by HAPCO released in May 2011 found that the lead safe legislation would significantly raise rents, force landlords to remove their properties from the market, and cause a “severe interruption” in the market for residential rentals, leading to anywhere between 21,000 to 52,000 rental properties being taken off the market – either temporarily or permanently.

Allan Domb, a Center City broker specializing in luxury condominiums, currently serves as the President of the Greater Philadelphia Association of Realtors – an advocacy group for Realtors that serve private property owners. “The law is not perfect but it is much more amenable that originally presented," he said. "GPAR, HAPCO and the Apartment Association worked with the sponsor of the bill, Councilwoman Blondell Reynolds Brown, to amend it. While some victories were realized, we understand the legislation is not perfect.”

Chris Artur, a Northeast Philadelphia Realtor and past president of the GPAR, wasn’t as diplomatic. “This city is anti-landlord and only the people who run their rentals professionally like a business will survive. The rental business is no longer for the passive dabblers.”

Jared Gruber, broker/owner of JG Real Estate in Fishtown, sees this legislation as disastrous for Philadelphia landlords. “This legislation is going to have a few different effects on my business, all negative," he said. "First, it is going to increase the turnover period between tenants. Typically, I am able to have most of my properties roll directly over into another rental with a 5-day period in-between for normal painting, cleaning, etc. When renting to families covered by this legislation, I am going to need to possibly double that turnover period to allow for scheduling with the lead based sampling technician.

"If the test is positive, it will open a whole different can of worms, which could lead to weeks, if not months, of lost rent and additional expense," he continued. "This takes money out of both my pocket and my client's pocket. In cases where there are multiple applicants, landlords are going to rent to the individuals which they believe will provide them with the highest return. Of course, the highest return isn't always dictated by the highest rent. It includes factors such as likelihood to pay rent on time, least likely to cause destruction to the property, etc. However, this legislation just adds another layer of expense which landlords will need to contend with, making it that much less likely a family with a child 6 or under will win the rental.”

Which brings us back to “our children.”

On its website, the Philadelphia Department of Public Health – which is assigned with enforcing the lead paint law – says, "The goal of the new law is to prevent all children who live in Philadelphia rental properties from becoming lead poisoned."

Hmmm. What exactly does “all” children mean?

Well, it doesn’t mean “all” children. Instead, it sadly means “some” of them.

You see, the legislation excludes “all” commercial properties (which means schools, doctor’s offices and daycare centers – among other places your young children visit). It also excludes “all” owner-occupied properties. I guess the children of the middle class don’t matter?

But most importantly, it exempts Section 8 housing, PHA housing, and other city-owned residential properties in which the poorest of the poor and the neediest of the needy live with “our children.”

What? The City of Philadelphia has created a law that it won’t enforce upon itself?

Nah. Our city government wouldn’t employ a double standard, right?

“If what you are saying here is accurate, then this is a travesty,” said Jonathan Orens, a real estate instructor at Temple University’s Real Estate Institute. “The only reason I can think of that the city exempted itself is because they don’t want to spend the money or deal with the aggravation. If this is the case, then this is simply a tax on the private sector for trying to do business in the city and not a battle cry to save the children.”

Nan Feyler, the chief of staff for the Office of the Health Commissioner, says that may change: “The City is currently reviewing the lead paint requirements of PHA and Section 8 housing to determine if it will be appropriate to recommend an amendment to the law or a regulation to include these residences.”  

That would probably please tenant advocates such as the Tenant Union Representative Network’s (TURN) executive director, Phil Lord.  “We at TURN are disappointed by the many exceptions to this disclosure requirement. We understand the belief by some that subsidized rentals have their own comparable inspection requirements which adequately address the lead paint issue. In our experience, this is not always the case. This law, like most, is small step in the right direction. Hopefully, at some point, more comprehensive and cost effective protection will be something all of us can agree upon.”

But will this new law result in landlords illegally refusing to rent to families with young children?

Paul M. Schmidt, an attorney who co-chairs the Zarwin Baum environmental practice group, doesn’t think so. In fact, he feels it’s already benefiting renters with small children. “I have not seen an indication that the new law is causing or will cause illegal refusal to rent to families with children 6 and under. In fact, I think the new law has spawned much greater education of landlords concerning what does and does not constitute discrimination; therefore, I would not be surprised if such discrimination is actually decreasing.”

That would be a good thing, as familial status discrimination is one of the fastest growing forms of illegal discrimination in rental housing in the United States.

TURN’s Lord is not convinced, though. “We at TURN do expect to see an increase on familial status discrimination as a result of how this law was finally passed," he said. "In our opinion, limiting its applicability to families with children under six was a mistake. We have seen a couple of cases where we had reason to believe tenants were being rejected because of the inspection requirement. However, this is very difficult to prove and we were able to resolve the situation by educating the landlord instead of filing a complaint.”

For now, though – there are two sets of children. There are the children covered by this law (only those that live in non-subsidized, investor-owned housing). And then there’s everyone else.

And “everyone else” includes pregnant women, who are especially at risk from exposure to lead. As I learned in my licensing class, lead is passed from the mother to the fetus and can cause miscarriage, premature birth, brain damage and low birth weight.

Artur already knew this. “This just shows the enormous task in drafting lead legislation that covers the most-at-risk person, but the group failed to take women and the unborn into account. The EPA office in Philadelphia was never consulted in drafting the ordinance; otherwise I think they wouldn't have made this mistake.”

Either the law should apply to all, or, it should apply to none.

So until “our children” are all treated equally under the law, my license is worthless.