M AURER L AW LLC
R E B E C C A M AUR E R , E SQ ., OH #0095401
June 5, 2019
Re:

Comparison of City Legislation 747-2019 and CLASH Proposed
Ordinance for a Lead Safe Housing Mandate

To Whom It May Concern:
At the request of my client, Cleveland Lead Advocates for Safe Housing
(CLASH), I have prepared this letter to inform the public, Cleveland City
Council, the Office of the Mayor, the Lead Safe Cleveland Coalition and any
other concerned citizen of the key differences between the CLASH lead safe
housing legislation and the newly proposed lead safe housing bill
introduced on June 3, 2019 by Council Members Griffin, Kelley, McCormack
and Mayor Jackson.
By way of background, I was an attorney at the Legal Aid Society of
Cleveland when that organization helped to draft an initial lead safe housing
bill that was proposed in August 2017. Over the last two years, I continued
to research and update the legislation on behalf of CLASH, a community
coalition focused on passing a lead-safe housing law in Cleveland. As an
attorney in private practice, I was the primary drafter of the CLASH’s
legislation proposed for a ballot initiative. In the last four months, I have
also observed the development of a new lead safe housing recommendations
through the Lead Safe Cleveland Coalition (LSCC) process.
Through this work, I have become familiar with the standards and practices
for a municipal lead-safe housing law.
Given my background, I have reviewed the legislation proposed by City
leaders on Monday night: Proposed Ordinance 747-19. I am writing this
letter to compare Proposed Ordinance 747-19, which is now pending in City
Council, with the most recent version of CLASH’s legislation, which is the
subject of a current petition drive to get on the March 2020 ballot.
It is important to note, at the outset, that Proposed Ordinance 747-19 has a
core vision that closely tracks CLASH’s legislation. Both bills create a
preventative lead testing standard for rental properties in Cleveland. Both
bills would require that landlords in pre-1978 homes preventatively test
their homes for lead in order to get onto the rental registry.
However, the two bills differ in significant ways that the public and
City officials should be aware of.

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 I.

Proposed Ordinance 747-19 relies exclusively on criminal
penalties, while the CLASH legislation relies on combined
civil and criminal penalties. If passed as written, Proposed
Ordinance 747-19 will likely be struck down as
unconstitutional due to its penalty structure.

Any ordinance to increase standards for housing must have a
comprehensive enforcement structure. This enforcement structure
is key not only for the sustainability and feasibility of the bill, but
also to address constitutional limitations on penalties for property
owners.
A line of caselaw has been evolving during the years I’ve been
working on lead safe housing and a recent decision from the federal
district court in Ohio has led to a clear conclusion: if the City does
not first obtain a warrant to inspect the premises, it is a violation of
the Fourth Amendment’s search and seizure requirements to
criminally punish a landlord for refusing to obtain a lead inspection.
While the connection between a lead inspection and the Fourth
Amendment may seem unclear at first, the two are clearly connected
under a burgeoning set of cases. If a landlord’s only choice is
between consenting to a warrantless search of a property (i.e. by
allowing a lead inspector, even a private one, into the property) or
face criminal penalties, the landlords Fourth Amendment rights will
be violated.
In late 2018, the Federal District Court in the Northern District of
Ohio – which has Cleveland in its jurisdiction – decided Pund v. City
of Bedford, 339 F. Supp. 3d 701 (N.D. Ohio 2018). That case
concerned the City of Bedford’s requirement for homeowners to
consent to a warrantless home inspection before property sales.
Homeowners that refused an inspection could be found guilty of a
misdemeanor. The court ruled that Bedford’s law was facially
unconstitutional. The law violated the individual’s Fourth
Amendment right to withhold consent to warrantless inspection.
Moreover, the court found that the threat of criminal penalty made it
impossible to voluntarily consent to inspection. See also City of Los
Angeles v. Patel, 135 S. Ct. 2443 (2015).
While this case law was not as well settled when CLASH initially
drafted its legislation, the conclusion after Pund is clear: a structure
that relies exclusively on criminal penalties opens up the legislation
to a serious constitutional challenge.
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 Because of this new case law, CLASH updated its legislation to
utilize a combined civil and criminal penalty model. CLASH uses
civil fees to address landlords who violate the lead safe mandate
initially, and does not escalate to criminal penalties until after the
Department of Building and Housing obtains an administrative
warrant to inspect the property.
By comparison, Proposed Ordinance 747-19 currently criminalizes
refusal to obtain a lead inspection, which raises the same issue
discussed in Pund. If Proposed Ordinance 747-19 is passed as
drafted, it will be subject to a compelling challenge on constitutional
grounds.
II.

Proposed Ordinance 747-19 will not create a lead safe
housing mandate for all homes until March 1, 2023. The
CLASH legislation creates a lead safe housing mandate for
all homes as of March 1, 2021

The CLASH legislation creates a uniform enforcement date for all homes in
the City of Cleveland: March 1, 2021. After March 1, 2021, Building and
Housing will have the full suite of enforcement tools available to it in all zip
codes and all regions of the City.
By comparison Proposed Ordinance 747-19 envisions a two-year rollout
period with only a fraction of Cleveland rental properties being required to
be lead safe as of March 1, 2021. Thereafter, Proposed Ordinance 747-19
envisions a roll-out schedule where portions of the city are added
piecemeal. The entire City is not subject to the lead safe housing mandate
until March 1, 2023.
III.

Proposed Ordinance 747-19 does not address daycare
centers in the City of Cleveland, whereas the CLASH
legislation ties the lead safety process to daycare
registration under Chapter 227 of the City of Cleveland
Codified Ordinances.

Fundamentally, daycare centers are regulated at the State and County level.
CLASH knows that comprehensive regulation of lead hazards in daycares
will require regulation beyond the municipal level. Nevertheless, CLASH
believes that acknowledging the importance of lead safety in daycares is a
critical part of comprehensive, sustainable lead safe housing legislation at
every level of government. As a result, CLASH included a lead safety status
requirement to all daycares registered under Chapter 227 of the Cleveland
Municipal Code. Under this chapter, daycare centers with 7 or more
children are supposed to obtain municipal permits before operating within
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 City limits. You can read more about the City’s regulation of day care
facilities here:
http://www.clevelandhealth.org/network/health/day_care_centers.php or in
Chapter 227 of the City of Cleveland Codified Ordinances.
Proposed Ordinance 747-19 does not address day-care centers and does not
tie the lead safe certificate process to daycare permits under Chapter 227 of
the City of Cleveland Codified Ordinances
IV.

Proposed Ordinance 747-19 does not require the Mayor to
include renters, healthcare professionals, or those directly
affected by lead poisoning on a Lead Advisory Board. The
CLASH legislation does.

CLASH’s legislation envisioned a Lead Advisory Board to oversee the
implementation of the new lead-safe standard via quarterly meetings and
quarterly reports. Proposed Ordinance 747-19 includes a similar Board that
also operates on a quarterly basis. Both bills lay out requirements for the
members of the board, but Proposed Ordinance 747-19 does not include key
constituent members. Proposed Ordinance 747-19 merely requires that
two (2) shall be representatives from the Lead Safe Cleveland
Coalition or similar organization one (1) shall be the Lead-Safe
Auditor, and one (1) shall be a current member of the Cleveland Area
Board of Realtors or similar organization of realtors.
By comparison, CLASH’s bill has requirements that include key
constituency groups such as renters, children’s healthcare professionals,
and those directly affected by lead poisoning:
At least two (2) members of the board shall rent residential real
property in the City of Cleveland and reside in that rental as their
primary residence. At least two (2) members of the board shall own
real property in the City of Cleveland subject to registration under
Chapter 365.02. At least two (2) members must work at organizations
or public entities which advocate for public health, civil rights, racial
justice or youth achievement. At least one (1) member of the board
shall be a children’s health professional with an Registered Nurse,
Medical Doctor, Masters of Public Health or Doctorate of Public
Health certification. At least one (1) member of the board shall be the
legal parent or guardian of a child who has had an elevated blood lead
level test above 5 micrograms per deciliter. At least one (1) member of
the board shall be a contractor certified in lead safe renovation, repair
and painting.
4

 CLASH’s bill also more clearly lays out the requirements and duties of
the Lead Advisory Board in its first few years than the language in
Proposed Ordinance 747-19.
V.

Proposed Ordinance 747-19 does not require lead risk
assessments, and instead allows clearance examinations to
be used at any stage of the process. The CLASH legislation
requires lead risk assessments to be used for initial
determinations of lead safety.

The CLASH legislation requires that at least one lead risk assessment take
place on the property, followed by clearance examinations in subsequent
years. By comparison, Proposed Ordinance 747-19 allows clearance
examinations to be used at any stage on any property, even before lead
hazards have been identified. A clearance examination is less
comprehensive test which provides limited specific information to landlords
or tenants about where, exactly, lead-based paint hazards are on the
property. Although Proposed Ordinance 747-19 allows landlords to opt for a
lead risk assessment, it does not require assessments at any point.
VI.

Proposed Ordinance 747-19 does not have all of the
protections included in the CLASH legislation

The CLASH legislation has a suite of protections included in the legislation
that are missing from Proposed Ordinance 747-19.
First, CLASH is explicit in its legislation that rental units’ lead safe status
must be accessible to the public through digitals platforms and be
searchable by address and zip code. CLASH believes this is important for
helping Cleveland residents utilize the newly available lead-safe information
in their housing search. While Proposed Ordinance 747-19 properly lists
lead safe certificates as public records, there are no provisions in regarding
accessibility of that data.
Second, because of these same concerns over tenant education, CLASH also
includes a provision regarding disclosure of lead safe status in rental
advertisements. While Proposed Ordinance 747-19 does include disclosure
requirements at the point of lease similar to CLASH’s legislation, Proposed
Ordinance 747-19 does not require that lead safe status be made clear at
the point of advertisement.
Third, CLASH’s legislation explicitly ties lead safe status to tenant
protections such as rent depositing and temporary relocation. For instance,
under CLASH’s bill, if a tenant must leave a property for her own safety
during lead safe repairs, the landlord must provide either alternate
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 accommodations, or a rent abatement. These key tenant protections are not
included in Proposed Ordinance 747-19.
Fourth, CLASH’s legislation prohibits conflicts of interest between owners
of the property and the lead risk assessors or clearance technicians
performing the lead tests. Proposed Ordinance 747-19 does not have this
protection that is so critical for the independence and integrity of lead
testing.
Fifth, CLASH’s legislation provided a desirable protection for landlords: a
safe harbor for property owners who do the right thing. Under CLASH’s
bill, proof of lead safety entitles the owner to a rebuttable presumption that
a child poisoned while in contact on the property was not poisoned by the
lead safe property. This protection is not included in Proposed Ordinance
747-19.
Finally, CLASH’s legislation created a fund that could accept both public
and private dollars to administer to landlords for testing and remediation of
the property. By creating the fund through the public sector, CLASH’s
legislation ensures public oversight. Proposed Ordinance 747-19 does not
appear to anticipate a public funding mechanism, which is in line with the
LSCC recommendation that the funding mechanism be housed through a
private entity.
There are, of course, provisions in Proposed Ordinance 747-19 that are not
in CLASH’s legislation. For instance, the 747-19 modifies outdated
Renovation, Repair, and Painting (RRP) provisions in Chapter 240, which
CLASH has long believed are better addressed through a traditional
ordinance process because of the complex overlay of federal law. Proposed
Ordinance 747-19 also makes modification to point-of-sale provisions and
requires City Council to review the lead safe housing ordinance after 1 year,
among other differences.
There are also many provisions of both bills which are similar: protections
from retaliation, disclosures to tenants at the point of lease, statutory
damages for the violation of EPA disclosure requirements, and a two-year
renewal period for lead safe status. I am aware of these aspects of
Proposed Ordinance 747-19 and have identified them as part of my review
of the legislation.
VII. Conclusion
In sum, while these bills have similar goals at the outset and some similar
provisions, there are key differences the public needs to be aware of when
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 considering whether Proposed Ordinance 747-19 is the best fit for
Cleveland’s children.
For all the differences I have identified in the legislation, there’s one
difference that should not matter: how this bill gets passed. Whether
through City Council or through a ballot initiative, the most important thing
is that Cleveland constructs legislation that protects kids in the best way we
know how. I hope that by highlighting key differences between CLASH’s
legislation the Proposed Ordinance 747-19, I have contributed to this goal.
Sincerely,
/s/ Rebecca Maurer
Rebecca Maurer

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