Judge rules lead-hazard law violates Constitution
But Judge Stephen J. Fortunato Jr. doesn't strip the state's ability to require that landlords' properties are certified as lead-safe every two years.

01:00 AM EST on Wednesday, January 11, 2006

BY BRANDIE JEFFERSON
Journal Environment Writer

A Superior Court judge has ruled the Lead Hazard Mitigation Law unconstitutional, but did not restrict the state's ability to enforce the law.

Judge Stephen J. Fortunato Jr. said there was "no rational basis" for the exemption of two- and three-unit owner-occupied buildings in the state's new law.

Although the law still stood, Fortunato wrote, "It is the hope of the court that the legislators will promptly revisit" the issue.
The Lead Hazard Mitigation Law, which went into effect in November, requires landlords to take a three-hour lead-hazard awareness class and prove that their properties are up to state Health Department requirements by having them certified as lead-safe every two years, or each time a new tenant moves in.

The law exempts owner-occupied two- and three-unit properties, housing legally restricted to people 62 and older, temporary housing and housing certified as lead-safe or lead-free.

A lawsuit filed by a landlords' association founded by Rep. Joseph A. Trillo, R-Warwick, claims that the two- and three-unit owner-occupied exemption violates landlords' guarantees to equal protection under the state Constitution.

"This is pretty much what we hoped would happen," Trillo said in response to the decision, "that [Fortunato] would rule but wouldn't necessarily try to stop the law."

The lawsuit was filed Oct. 4, less than a month before the law was scheduled to take effect. Although the plaintiffs had asked for an injunction to stop the law from going into effect, Fortunato denied the request and it became law Nov. 1.

Roberta Hazen Aaronson, executive director of the Childhood Lead Action Project, had mixed feelings about the decision.
"The law has been retained for the time being, that's good news," she said, and added "the future is uncertain."

The law was passed in 2002 and initially scheduled to go into effect in June 2004. It was delayed twice while stakeholders such as Hazen Aaronson and Trillo worked toward a compromise.

"We have to figure out what our next step will be," Hazen Aaronson said, speculating that she will likely find herself back in the legislative arena.

Attorney General Patrick C. Lynch's spokesman Michael Healey said Lynch will have to wait to hear from legislators before he takes action. Russell Cole, vice president of RI Lead Technicians Inc. isn't concerned about the decision. Cole is a landlord, teaches the landlord class and does home inspections.

Required lead-safe standards for landlords have been in place since the 1991 Lead Poisoning Prevention Act.

Landlords that are exempt from the new law, he said, "just don't have to prove that they have adhered to prior laws."

Brandie Jefferson has a fellowship with the Metcalf Institute for Marine and Environmental Reporting.
bjeffers@projo.com / (401) 277-7133