Judge: City Dragged Feet On Lead

A Superior Court judge ordered the city to pay for the relocation of two West River tenants to an area hotel through late July in the court’s latest rebuke of the city Health Department’s handling of child lead poisoning cases.

That happened Tuesday afternoon on the third floor of the Connecticut Superior Court building at 121 Elm St., where housing Judge Walter Spader, Jr. ordered the city to relocate West River tenant Jennifer Williams and her 2‑year-old son, Elijah Hall, to an area hotel until lead abatement work is complete at their second-floor apartment at 75 Sherman Ave.

Spader also ordered the city to ensure that the Sherman Avenue property’s owner, Abdullah Soliman, pick a lead abatement contractor by the end of this week, and that the lead abatement work be completed within 30 days of the order.

The judge refused to grant a motion by the city to transfer the case to a lead-specific docket in another courthouse, and ordered both parties to return to housing court on July 24 to provide an update on the case.

Such was the outcome of the first hearing in the New Haven Legal Assistance Association’s (NHLAA) lawsuit against the city and its Health Department on behalf of Hall and Williams.

NHLAA filed the suit on June 7. In the suit, NHLAA alleged that the city’s Health Department neglected to follow city law in providing timely and adequate protection of a child with an elevated blood lead level who was living in a home with known lead paint, dust and soil hazards.

The lawsuit is one of two recent legal actions taken by NHLAA against a city Health Department that it argues moves too slowly in holding landlords accountable for properly abating properties with known lead hazards.

NHLAA is also currently involved on behalf of the defense in another court case focused on the same Sherman Avenue property. In that third court case, the landlord’s attempted eviction of his ground-floor tenants for non-payment of rent quickly transformed into a referendum on the city’s lead inspection and abatement protocols.

In the lead cases currently before the court and in previous, similar cases, the city has argued that the landlord, not the city, is primarily responsible for the timely and complete lead abatement of his or her properties.

New Haven’s lawyers have also argued that children with blood lead levels just above 5 micrograms per deciliter (mg/dL), which is the threshold set by the city and the federal Centers for Disease Control (CDC) for an ​“abnormal” and dangerously high child blood lead burden, do not necessarily merit the same kind of urgent public health response as a child with a blood lead level above 20 mg/dL, which is the state’s threshold for poisoning.

Section 16 – 61 of the New Haven Code of Ordinances defines lead poisoning as ​“a blood lead concentration equal to or greater than twenty (20) micrograms per deciliter of whole blood, or any other abnormal body burden of lead as defined by the Centers for Disease Control and Prevention.”

Since city law’s definition of an ​“abnormal” lead burden tracks with that of the CDC according to the ordinance, the legal threshold for an ​“abnormal” blood lead burden in New Haven has been 5 mg/dL ever since the CDC set that level as its own definition for ​“abnormal” in 2012. 

Hall tested as having a blood lead level of 6 mg/dL in December 2017. In May 2018, his blood lead levels had increased to 7 mg/dL.

The CDC refers to any child blood lead level above 5 mg/dL as ​“elevated,” or dangerously high and presenting an undue risk for the development of long-term mental and behavioral disabilities.

In court on Tuesday, NHLAA attorney Amy Marx sought to convince the judge that the city had failed in its legal obligations to move quickly enough to protect Hall from any further exposure to lead hazards in his home.

“Enough is enough,” she told the judge. ​“Elijah must be safe, and we need judicial orders to make sure this gets done.”

Corporation Counsel John Rose, Jr., representing the city, argued that the Health Department has acted legally and responsibly in its actions to date in inspecting the Hall’s apartment for lead, writing up a lead abatement plan for the property, and coordinating lead abatement contractors for the landlord to pick between.

“We deal with this every day,” Rose said about the expertise the city’s Health Department has developed in its regular encounters with the tens of thousands of lead hazardous apartments that exist in New Haven.

Tuesday’s hearing was not about the city more broadly, but about one specific lead hazardous apartment and one specific timeline of events. Ultimately, for the judge, the case came down to just how quickly, or slowly, the city’s Health Department moved in meeting its legal obligations to protect Hall.

Fighting Over Jursidiction

In NHLAA’s original June 7 lawsuit, Marx requested that the court provide injunctive relief for Hall and Williams by requiring the city to move the mother and son to a nearby hotel and expedite the lead abatement of their second-floor apartment at 75 Sherman.

In a June 15 motion to transfer, the city responded to NHLAA’s complaint by requesting that the judge move the case from the housing court and over to a Lead Paint Litigation (LPL) docket across the street at the courthouse at 235 Church St.

On Tuesday afternoon, Rose continued the city’s argument for moving the case out of housing court.

“If the court doesn’t have jurisdiction, it doesn’t have jurisdiction,” he said as he flipped through a thick book of Connecticut case law. He said the case rightfully belonged at LPL, as that docket had been established decades ago specifically with the intent of handling civil suits alleging damages from lead poisoning.

Marx responded that she and her clients ultimately had no concerns with where the case was heard. But, she said, the LPL docket is reserved specifically for plaintiffs seeking monetary damages for lead poisoning, and Williams and Hall did not want money. They wanted immediate protection for a child with an elevated blood lead level. Moving the case to LPL would only delay matters, she argued.

“We need orders today to protect Elijah Hall,” she said.

Judge Spader allowed Marx to ​“show cause” and make her case for the contents of the lawsuit. She and Rose spent the next three hours in a heated debate over the merits of the suit and their respective judgments of city actions.

Ultimately, Spader rejected Rose’s request to transfer the case to LPL, noting that housing court’s jurisdiction includes hearing cases concerning the health, safety and wellness of occupants. He said NHLAA’s lawsuit met those standards, and so it would remain in his court room.

Filling Out The Timeline

Most of the contentious three-hour hearing was dedicated to figuring out the timeline of city, landlord and tenant actions between when Hall first tested as having an elevated blood lead level nearly seven months ago and the present day.

Marx and Rose spent a good deal of their time before the judge figuring out the timeline by cross-examining Glenda Buenaventura, the 14-year-veteran city lead inspector assigned to the Sherman Avenue property. A few weeks ago, Marx spent almost an hour cross-examining Buenaventura in the court case involving 75 Sherman Ave.’s ground-floor tenants.

During that hearing, Buenaventura admitted that she approved the ground-floor apartment as fully abated after the lead abatement contractor had finished their work, even though she did not fully reexamine every part of the unit that she had previously identified as hazardous.

Judge Anthony Avallone ultimately decided in that case that the city had to engage an independent expert to assess the quality of the abatement work on the ground floor. According to Marx and Buenaventura, that independent assessment was done last week. The ground-floor tenant court case will resume once the independent expert files her report on the conditions that she found in the unit.

But on Tuesday, Buenaventura’s testimony was less focused on the quality of her inspection work and more on fleshing out the timeline of her actions, as well as providing more detail on the heath department’s overall process for dealing with lead hazardous apartments.

Over the course of the hearing, the following timeline emerged. Alongside key date are notes and excerpts from the Marx and Rose’s cross-examinations of Buenaventura.

• In November or December 2017, Buenaventura learned that Malik Muhammad, a 1‑year-old tenant living in the ground-floor apartment of 75 Sherman Ave., had tested as having a blood lead level of 11 mg/dL. Marx asked Buenaventura if she notified Williams that her downstairs neighbor’s child had tested as having an elevated blood lead level soon after finding out. Buenaventura said the department does not notify other tenants about potential lead hazards until a lead hazard inspection of an apartment has been done. In the case of the ground-floor unit, the Health Department conduct its first lead paint inspection of the ground-floor unit on April 10.

• On Jan. 9, 2018, Buenaventura learned that Hall had tested as having a blood lead level of 6 mg/dL. She said she received the notification in the same way that she always receives elevated blood lead level notifications: Andrew Koslowski, a computer programming assistant in the Health Department’s Bureau of Environmental Health, pulls a report from the state’s Maven database that indicates the names, addresses, and blood lead levels of children who have tested above 5 mg/dL. When a child tests above a 5, his or her doctor must report that information to the state, which then passes the information back to the city.

Buenaventura said she tried to make contact with Williams and Hall, but the initial address on the blood lead report notice was wrong (it read 175 Sherman Ave., as opposed to 75 Sherman Ave.) When she realized the mistake and found the right address, Buenaventura said she reached out once per month in January, February, and March, but never heard back from the tenants.

She said she didn’t make contact with Williams and Hall and Williams’ mother Brenda, who also lives in the second-floor apartment, until April 28. That was nearly two weeks after Buenaventura issued her lead paint abatement order to Soliman for the hazardous conditions she had found in the downstairs apartment during her April 10 inspection.

• On May 9, Buenaventura received a second elevated blood lead notice for Hall, this time putting him at a 7. She inspected the second-floor apartment that same day, and issued a lead paint hazard and abatement order to Soliman for the second-floor apartment on May 14.

Over four months after she first received the first elevated blood lead notice in early January.

• On June 6, Buenaventura wrote up a lead abatement plan for Williams’ and Hall’s apartment. Marx pointed out that city law requires the landlord to have a lead abatement plan in place five days after receiving a lead abatement order, which, in this case, was sent out on May 14. Buenaventura responded that the city does not start that countdown until the landlord has sent back a confirmation that he has received the lead hazard order. She said she didn’t receive that confirmation from Soliman until June 4.

Marx was incredulous that the city waits on a potentially negligent landlord’s response before taking action in drafting a lead abatement plan for an apartment know to be hazardous to children.

• Since Soliman indicated that he would like to apply for federal Housing and Urban Development (HUD) funding that the city manages to support landlords abate their properties of lead hazards, Buenaventura said that on June 6 she sent the lead abatement plan she had drafted to Jennifer Sanjurjo, the city employee who manages the city’s HUD lead hazard remediation program.

She said Sanjurjo sent the lead abatement plant to 12 city-approved lead abatement contractors on June 12. Those contractors came by the property on June 18 to do a walkthrough of the unit. Buenaventura said she amended the lead abatement plan after the June 18 walkthrough, and set a deadline of June 22 for any contractors wishing to bid on the abatement work. She said the landlord ultimately has the final say on which contractor is picked to do the work, though she does assess and make recommendations based on contractor cost and reliability.

Although the final bid date for the work was June 22, last Friday, neither Buenaventura nor Public Health Director Paul Kowalski, whom Marx cross-examined for only a few minutes, knew if Soliman had chosen a final contractor to do the work.

Nearly six months have passed since Hall’s first elevated blood lead level test came to the attention of the city’s health department and, as of the court hearing on Tuesday, the lead abatement contractor had not yet been picked, let alone the abatement work itself completed.

Marx repeatedly pointed out that city law requires landlords to initiate have an approved lead abatement plan in place five days after receiving a lead hazard order from the city; to initiate lead abatement work within seven days of receiving that order; and to complete lead abatement work within 30 days of receiving that order.

“Not Awful”

In her final plea for injunctive relief, Marx told the judge that Williams and Hall had waited long enough for the city and the landlord to act on abating the lead hazards in their property, and that they now needed to be relocated to a different temporary location so as not to prolong Hall’s exposure to any dangerous conditions.

Rose said Marx was ​“completely off the wall” in her assertions that the city was not taking adequate actions in inspecting the property, drafting a lead abatement plan, and coordinating with lead abatement contractors.

Plus, he added, ​“the child has a lead level that is not awful.” When Williams, who sat patiently alongside Marx and NHLAA Attorney Shelley White for the duration of the hearing, burst into tears at hearing the city counsel imply that her child’s elevated blood lead levels were ​“not awful,” Rose backtracked a little.

“It’s always awful,” he said. ​“But it’s not awful.”

Awful or not, Spader decided that what he had heard from the city was not a convincing defense of their adequate response to the situation.

He said the city’s health department should have moved ​“more expeditiously” and ​“with more concern for the child” considering that they knew as early as the first two weeks of April that a young child in the the ground-floor apartment of the same home had reported as having a blood-lead level over double the CDC’s threshold for ​“elevated.”

“It took a court order in that other case to start moving the city,” he said in reference to the downstairs apartment. He said it looked to him like the second-floor lead poisoning and abatement case would also require a court order to get the city moving with enough urgency.

So, in addition to footing the hotel bill for the displaced ground-floor tenants, the city will now have to pay to relocate Williams and Hall to a hotel through late July while the lead abatement work is done on their second-story unit.

Previous coverage:

• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead