Decision in Maryland Lead Paint Case Could Poison Entire Program

FSC Lead Services
November 1, 2011 — 1,395 views  

Maryland Court's Decision to Invalidate Limited Liability Protection Under MDE Lead Based Paint Regulations Could Undermine Program

"On Oct. 24, Maryland's highest court, the MD Court of Appeals, ruled in Zi'Tashia Jackson v. The Dackman Company (No. 131, September Term 2008) that provisions in Maryland's Reduction of Lead Risk in Housing Act (the Act) which granted owners of certain rental properties immunity from personal injury law suits, under specified conditions, are invalid because they violate the Maryland Constitution."[1] 

Maryland's lead based paint regulations are a model of success for the rest of the country, and have been at the vanguard of the struggle to make lead poisoning a thing of the past.  However, this recent decision threatens to throw the system out of balance.

Participation in the MDE lead paint program is required for buildings constructed before 1950, but for buildings constructed before 1978, participation is optional.  The decision to throw out limited liability protection removes one of the most important incentives for pre-1978 property owners to follow the strict procedures for compliance with MDE lead paint laws.

In order to qualify for the limited liability protection that existed before this decision, property owners had to take extraordinary measures to use lead safe practices in every aspect of their renovations. To be considered compliant, and therefore eligible for limited liability, they had to ensure that every renovator they employ was properly certified and accredited, and have documentation for every worker, on any given day of the project.

Property owners who took all the steps necessary to qualify for this risk protection were responsible and law-abiding. These are landlords who were taking all of the necessary steps to protect their tenants from dangerous lead paint.  This decision punishes those compliant and law-abiding property owners with pre-1978 buildings, who decided to opt in to the MDE program, and spent the money necessary to qualify.

"This decision affects the property owners who are compliant, and it's part of a disturbing trend we've seen since we started doing lead paint renovations in '98," said Free-Spirited Contractor's Owner, Michael Spangler, "the state can be very slow to prosecute the blatantly non-compliant property owner.  You have the rare exception of a case like Cephus Murrell, who was pursued for years and eventually became the first and only landlord to ever be incarcerated for lead paint violations.  To prosecute a landlord who is blatantly defiant is extremely costly for the state, and there's often no compensation available for the victim or their family.

"Compliant and responsible property owners, on the other hand, will pay the costs necessary to participate in the MDE program. They're the ones who make the program work, because they opt in if they have a pre-1978 property, and they take all of the steps to be compliant with Maryland's regulations, and Maryland has some of the strictest lead paint laws in the country.  This already raises their costs, which forces them to raise their rent, which lowers their occupancy and puts the lead safe housing they manage out of reach for many low income families.

"With this decision, they don't even get the benefit of limited liability protection, which puts their costs even higher.  Many property owners with pre-1978 properties will opt out of the entire program without limited liability protection, because it won't make any sense for them financially."

The Baltimore Sun published an article October 27th about this decision and argues that the next step should be further compromise, perhaps an agreement to bring back limited liability protection in exchange for making enrollment in MDE's lead program mandatory for properties built between 1950 and 1978.

"…property owners will surely come to Annapolis in January to beg the General Assembly for relief. Lawmakers and lead paint advocates should hear them out and look for an opportunity to make a deal. In 1994, both they and the landlords, who were then facing mounting legal bills, needed a law, so they were forced to agree to compromises. Now the advocates are in a strong bargaining position.

Legislators should be willing to consider some reasonable limits on liability, but they should demand further concessions in return. For example, the thresholds of lead poisoning that are a cause for action in the 1994 law are higher than health officials now say are acceptable. Advocates could push for them to be lowered. The current law only mandates remediation for homes built before 1950, when Baltimore outlawed lead paint. But it was legal elsewhere until 1978. Advocates could push to get units built between those years included in the registration program as well. They could also seek some kind of financing mechanism for more lead paint inspectors"[2].

We hope that an agreement, like the compromise proposed by The Sun, is made in the future.  The current decision to offer no protection to property owners who opt in will drive many out of the MDE program and raise costs for everyone, across the board.  This new decision punishes responsible property owners who have taken strenuous efforts to abide by Maryland's stringent lead paint laws, and threatens to put the cost of lead-safe housing out of reach for many low-income families. 

Unless there's a new compromise, this decision could undermine the way the MDE lead paint program works, leaving poisoning prevention and enforcement entirely in the hands of personal injury lawyers.

Free-Spirited Contractor will continue to watch the developments in this case very closely.  Let us know what you think by posting a comment on Free-Spirited Contractor's website.  Do you think that this was a fair decision?  Do you think there should be further compromise?

[1] Apartment and Office Building Association of Metropolitan Washington. (2011, October 28) Maryland's High Court Invalidates Limited Liability Protection for Property Owners in Reduction of Lead Risk in Housing Act [Blog post] Retrieved from http://aoba-metro.org/news/204/85/Maryland-s-High-Court-Invalidates-Limited-Liability-Protection-for-Property-Owners-in-Reduction-of-Lead-Risk-in-Housing-Act.html

[2] The Baltimore Sun (2011, October 27) Lead paint case: A poisoned compromise [Op-Ed Blog Post] Retrieved from http://www.baltimoresun.com/news/opinion/editorial/bs-ed-lead-paint-20111027,0,1743090.story.

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FSC Lead Services


We're a general contractor in the Baltimore, Maryland area. Our specialty is lead paint renovation, and we've dedicated the company to compliance with EPA and MDE regulations, and we're trying to help increase awareness about lead poisoning. Renovations in multi-housing are our specialty, but as a general contractor we regularly work in both commercial and residential projects. We do windows, doors, kitchen remodeling, bathroom renovations, and have our own concrete division specializing in stamped concrete designs. Contact Free-Spirited Contractor at our website... Read more: http://www.articlesbase.com/remodeling-articles/decision-in-maryland-lead-paint-case-could-poison-entire-program-5355958.html#ixzz1d8Jx36PX Under Creative Commons License: Attribution No Derivatives