City Blames Landlord For Poisoning

Christopher Peak Photo The city told a judge that a 5-year-old’s lead poisoning is the landlord’s fault — not the city health department’s fault — and that it is seeking the landlord’s arrest.

John Rose, Jr., the corporation counsel, made that argument before Judge Anthony Avallone in state housing court on Tuesday afternoon, as he sought to deflect a lead-paint lawsuit filed last week by New Haven Legal Assistance Association that charges the city health department isn’t doing its job.

The suit argues that the health department broke state law and local ordinances in the way it handled Jacob Guaman’s lead poisoning in an apartment at 1321 Whalley Ave. in the Amity section of town. In 2015, after lead levels in the boy’s blood far surpassed dangerous levels, the city failed to conduct a thorough inspection and monitor the landlord’s abatement, leaving him “suffering irreparable harm,” the complaint contends.

The suit asks a judge to grant injunctive relief, forcing the city to remove the child from the apartment and fix up the lead-paint problems directly. No monetary damages are being sought.

But Judge Avallone won’t be ruling on the case. City lawyers successfully convinced him that procedural guidelines prohibit him from ruling on the litigation in Housing Session, leading him to refer the case to a separate, little-used docket in the state court system.

“We’re extremely disappointed that the city was confrontational in response to our very serious concern about the health of a child. It was our hope that raising the fact pattern of this case would have allowed us to get the city’s attention to sit down and engage in conversations regarding what seem to be serious defects in the functioning of the Health Department,” Amy Marx, a staff attorney for NHLAA, said after Avallone’s action. “Instead of coming to court as stewards of the public’s well-being, they came to court to block us at all costs.”

City Threatens Landlord’s Arrest

Shortly after noon Tuesday on 121 Elm St.’s third floor, a cadre of six lawyers —  three for the city, two for legal aid, and one for the landlord —  crowded around a table for the first hearing on the case. In the front row, Paul Kowalski, the environmental health director in charge of lead-paint inspections, hunched over, seated beside Jong Hee Heo, the landlord in question, and Shelley White, NHLAA’s litigation director.

In a motion submitted the night before, city Corporation Counsel Rose asked the judge to consolidate the case with a related suit against Heo and to shift all the liability onto him rather than the city. After the Health Department cleared the property in a December 2008 inspection, Heo was “charged with maintaining and monitoring the premises thereafter,” Rose argued in a filing.

The brief skips over the city’s response in 2015, when inspectors cleared the apartment, despite blood tests showing dangerous lead levels, at nearly twice the levels required to trigger state law and seven times higher than city ordinance — the central episode in legal aid’s initial complaint, which focuses on whether the city does its job in enforcing lead-paint regulations.

The filing jumps right to this August. After legal aid sent a demand letter about the lead-paint problems, the city claims it tried to send written notice to Heo that he needed to make repairs. “Having heard nothing” in reply, the city applied for an arrest warrant, which is still pending, according to the city’s “best information,” Rose wrote.

“If you kick a door or slam a window, some of the encapsulated lead paint will come off,” Rose said in court. “The city’s being blamed for his not having complied. That’s what this is about.”

Heo told the Independent in a previous interview that he was trying to follow the city’s orders. Around the same time the health department came by, inspectors from the Livable City Initiative cleared his apartment on separate violations, including a wobbly toilet, a leaky pipe and missing smoke detectors. In court Tuesday, Heo said he was flabbergasted by the city’s attacks, saying he wasn’t feeling well, after the judge left the courtroom.

Kevin Casini, Heo’s new lawyer, said he’d fight Rose’s motion. “The city plans to claim that they’ve done nothing wrong and have zero liability, and that if anybody’s liable, it’s my client,” he said. “Obviously, I have contention with that.”

State courts have diverged on who should foot the bill for lead-paint poisonings — a question related to NHLAA’s request for injunctive relief. In a foundational case in 1990, the Superior Court awarded $1 million in damages to the mother of a sick 6-year-old in the Hill, ruling that the landlord had violated her obligation to keep the building free of lead paint. But by 1993, the court chose to ignore that precedent, saying it ignored the entire purpose of having a procedure in the health code to deal with poisonings. In a case that year, the court concluded that owners should be liable for damages only if they find out that lead-painted surfaces are defective and then choose not to make repairs within a reasonable time.

City Requests New Judge

Casini won’t have a chance to argue his defense for at least a week, because another one of Rose’s motions successfully moved the case elsewhere in the judicial system.

Based on his interpretation of a standing order issued by Judge Linda Lager in Nov. 2014, which sets out rules for civil cases involving lead paint, Avallone transferred the case from Housing Session into Superior Court. He expected the suit would land before Judge James Abrams, who he said is out on vacation this week.

The standing order requires plaintiffs to submit documents about their residency and medical care and places the case on a fast track in which no continuances can be granted.

Marx argued that, because legal aid isn’t seeking any money, the standing order didn’t apply. She pointed to a provision that says the special designation for lead-paint litigation should be stamped on a case only when “a claim of damages … is made.”

Rose, however, pointed out that another provision seems to broaden the order’s scope. Its rules about venue “apply to all civil actions related to lead paint,” a subsequent provision reads.

Marx argued that, regardless of the order, the boys in the Guaman family need urgent help.

“There’s chipped paint on the floor in the bedroom, and their blood levels are dangerously high,” she told Avallone. “The issue is we need immediate relief.”

“Hold it!” Avallone yelled, as the two lawyers veered into arguments about the Health Department’s workings. “The sole issue is whether Housing Court is the appropriate venue for this case.”

Avallone eventually sided with Rose’s interpretation

“I would love to be the judge and handle that,” he said, but “it belongs in Superior Court with its companion case. It’s best handled by one judge,” he added, in reference to his planned retirement before the year’s end.

The last time that a lawyer submitted the required paperwork to mark a New Haven case with the special lead-paint designation was in 2015, said Krista Hess, manager of the Superior Court’s operations unit. Transferring a case is even more unusual, since lead-paint litigation usually involves damages, meaning it starts in Superior Court anyway.

Marx accused the city of judge-shopping, saying, “We can’t think of any reason the city would want it there, other than to delay and to avoid Judge Avallone, who has been forceful voice in protecting children in the face of lead hazards.”

Compromise Sought

After kicking the matter from his court, Avallone invited corporation counsel and legal aid lawyers into his chambers to see if they could broker some kind of compromise about what to do in the meantime. After discussion, the health department agreed to conduct another property inspection, while the Guamans said they’d take their boys in for further blood tests.

The city refused to move the boys. In court, Rose objected to legal aid’s “use [of] the city as a relocation agency to move them from house to house.”

Marx called that response seemed callous. “There seemed to be a true lack of concern for a sick child in an emergency situation,” she commented after the hearing ended. “Instead, they just asserted that they’d done everything properly and that they’re the experts.”

As he left the courtroom, Rose declined comment, saying the city doesn’t comment on active litigation.

Yale-New Haven Hospital once offered a safe house for children with elevated blood levels, but that’s since closed down; Ronald McDonald House of Connecticut is now supposed to take poisoned kids in, according to state-issued recommendations. On Wednesday afternoon, a Ronald McDonald House employee said the safe house is fully booked and suggested calling back next week about availability.

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posted by: robn on November 9, 2017  8:37am

I find it sickening that these parents, having known there was a problem for now many years, have not only remained in this house for years but also had more children there. And to those who say the poor have few choices, I respond in advance that there are 45,000 households in New Haven alone. Add to that the surrounding suburbs and there’s are more than sufficient choices. I’m not saying the landlord is right but these parents have willfully subjected their kids to lead exposure for far longer than reasonable.

posted by: Kevin McCarthy on November 9, 2017  10:32am

Robn, most apartments and homes in New Haven and the inner suburbs have lead on the premises. Even if a unit was built after lead paint was banned, yards routinely contain lead-contaminated soil.

posted by: 1644 on November 9, 2017  10:39am

Robn:  The only person who has offered to help this family move to a different apartment is the landlord.  As someone (you? Kevin?) said, lead paint is the problem from hell.  Abatement to the level NHLAA and the city want would mean the loss of up to 70% of New Haven’s housing.  Yes, it’s ridiculous that these parents have knowingly continued to expose their children to lead poisoning and refused help to move to a safer, post-1978 place. One would think the primary responsibility for the safety of the children would lie with the parents, not the city of the landlord.  Again, this strikes me as Munchausen by proxy syndrome, where the parents are harming their children to gain attention and sympathy for themselves.  DCF should intervene.

posted by: robn on November 9, 2017  10:45am

KM

Sorry but I just can’t accept your premise that every unit in the city has lead and that these parents have no choice. If that we’re the case, every child in the city would be poisoned:

posted by: Realmom21 on November 9, 2017  10:45am

ROBN I agree 1000% with you . Why is this not neglect on the part of the parents. If I knowingly leave my child somewhere that is a danger then I am the one who gets charged with reckless endangermen, risk of injury to a minor etc. Hell now there is a law on the books that if you smoke in the car with a child you can loose your child to the system but these people want to live in a certain neighborhood and at a specific price so they use the law to screw the landlord. . They are not related so he owes them nothing but if he had evicted them then he would be in trouble because they were still paying rent. He didn’t renew their lease. He offered them full security refund and moving cost but they wont leave because they want to stay in that neighborhood at that price so they wont leave. This is like being held hostage by a tenant. I wish the landlords of new haven would start a go fund me page for this poor guy. ANy other family would have been forced into a shelter so that they could qualify for emergency family housing but these people wont do that because they dont want to end up in the hill,newhallville or fair haven etc they only want westville, This is disgusting abuse of the legal system!!!!!!

posted by: LookOut on November 9, 2017  10:50am

@Kevin:  Considering the volume of both major reconstruction and new construction in New Haven since 1978 (remember, we had Elm Haven back then), I seriously doubt that ‘most’ is true but even if we say 20,000 houses are ‘clean’ and knowing that 5% turn over each year, then there have been 2,000 options in the past 2 years.  Yes, some may not be desirable or
affordable but I have to agree with Robn that, if you are taking care of your children and there are 2,000 other options, there must be a way.

My thought is that we are creating a society that depends upon government for services which should not be provided by government.  This inevitably leads to bloated and inefficient government that cannot even provide basic services well.  (Think public safety, safe roads, building inspection….all things are governments are doing at a poorer level every year)

posted by: manofthepeople on November 9, 2017  11:26am

The tenant at any point could pick up and leave and find alternative housing. They choose not to, despite the illness, despite the landlord offering to assist them in moving. Its hard to feel anything but sad for the landlord for having to deal with such unreasonable people. On top of that, they don’t seem to have bothered teaching their children “Do NOT eat paint”. Which is what most people do. I am frankly surprised that Child Protection Services has not gotten involved and removed the kids from what is obviously an unsafe parental situation.

Here is to hoping that common sense prevails.

posted by: robn on November 9, 2017  12:38pm

Another bottom line issue is this. Connecticut’s Housing Courts are so heavily biased towards tenant rights and it is so notoriously hard to evict a bad tenant that landlords are generally overly cautious about who they will rent to. in effect, the overly protective court system is having an effect that is opposite of what’s intended…. making it harder for people to rent.

posted by: 1644 on November 9, 2017  2:07pm

robn: Very true.  I was just in Housing Court yesterday, and the take-away was “don’t ever be a landlord.”  We could vastly increase the supply and affordability of housing if we made evictions easier and defunded organizations like NHLAA that work against affordable housing.  There are vast numbers of units left vacant because owners fear tenants like the Gaumans.  Now the city wants to jail well-meaning landlords like Heo !

posted by: Not Telling on November 14, 2017  3:13pm

I am an expert on this subject.  Not long ago I bought a two family home in East Rock.  We had it inspected and stretched, used all our savings, and did work ourselves to make the house our home.  At our daughters two year old physical the Dr. said she was very healthy, “Did we want to run an extra tests?”  Worst decision ever, we said “Like which?”  He suggested A, B, and a lead test.
Well the next day the call comes “you must be in my office e this AM.”  Your daughter has Severe Toxic Lead Poisoning. o Fuck.
Q. What can we/Should we do? A. wait
Q. What? A. it will dissipate over time.  but you need to fix what caused this.

I had sanded a staircase two weeks prior so I knew the cause. also the remedy, don’t sand that stair case.

But our hell was just starting.  The next day, by certified mail, we received a demand letter to open our home to inspectors, immediately and at their convenience.  The fun was just beginning.  My Remediation report came a few days later telling us we needed to replace every window, every door, all floor boards… basically replace the house and paint what is left with Lead encapsulating paint.  It also listed the Approved list of contractors.  The only people who can do the work in the state of CT. 

I thought a good start would be to get a contractor in to get an idea of price.  It turns out the city of New Haven has a more exacting standard than the already exacting standard of the state and NO ONE on the list would work in New haven.

As for the already stated, healthy child, she is fine but the Yale Lead clinic is another story..  One is automatically enrolled there if your child tests “hot.”  so every two weeks you go and are forced to have the kids blood drawn until it is below a stated level.  and they try to insist you enroll in a “study,” to find the damage done by the lead.  I was all for the “study,” originally, until I realized there was nothing to test against. there was no personal Baseline.

posted by: Not Telling on November 14, 2017  3:18pm

In the end it cost us 35% of the cost of the house to comply with the order.  We had to sell to repay the home equity loan.  we were so frustrated with our treatment by the lead people, the city people, and the Lead clinic we ended up leaving New Haven.