Grilled by a judge about how an apartment’s lead-based paint became unsafe enough to poison a child, a landlord testified in court Wednesday that a city-recommended contractor won an abatement project through a bid-rigging scheme and then did a shoddy job in order to pocket the federal dollars.
That allegation of fraud was the most dramatic moment in a full day of testimony in Superior Court, as Judge Sheila Ozalis tries to determine who bears statutory responsibility — the city or the landlord — for remedying a 5-year-old boy’s lead poisoning.
The case is scheduled to continue in Ozalis’s court on Friday.
Lawyers from New Haven Legal Assistance Association (NHLAA) filed a case on behalf of the sick child, Jacob Guaman, last month. The initial complaint contends that the city violated both state law and local ordinances in its response to toxic lead levels in Guaman’s blood, which, in May 2015, tested seven times higher than the level experts at the Centers for Disease Control and Prevention say should trigger a response.
After being notified of that blood work, the city’s Health Department conducted a perfunctory inspection of 1323 Whalley Ave., let the landlord off without submitting an abatement plan and didn’t properly reinspect the premises — an inadequate response that’s left Jacob “suffering irreparable harm,” including still-elevated lead levels known to cause neurological damage, the complaint argues.
The suit doesn’t ask for any money. Instead, NHLAA requests a preliminary injunction against the Health Department and its top two employees that would force them to remove the family from its Amity apartment and conduct a proper cleanup.
From the six hours of testimony at the first hearing, a picture emerged of an earnest landlord who didn’t fully comprehend the order letters he was receiving and trusted Health Department employees to guide him.
Jong Hee Heo, a Korean immigrant, tried to quickly fix up the property but didn’t follow the law as he did so. He failed to submit paperwork and didn’t adequately guard against lead chips and dust in the renovation. But as he navigated the abatement process himself, the Health Department also didn’t pressure him to stick to the regulations, he said.
Throughout a long day in the new courthouse at 235 Church St., with testimony translated through Spanish and Korean interpreters, the two teams of lawyers tried to clear up a confusing record of what work Heo had completed and how the city had monitored it.
Amy Marx, an NHLAA staff attorney, spent hours in court mining the tedious process of submitting evidence, introducing letters from the Health Department and recent photographs that suggested the city had ignored clear problems at the apartment. Then city Corporation Counsel John Rose, Jr. tried to undercut witness testimony with tough questioning and a few side comments that earned him reprimands from Judge Ozalis.
Dissatisfied with the answers both attorneys were getting, Ozalis eventually took over the questioning herself.
She focused, at first, on the simple matter of paperwork. Had Heo submitted a plan before work began, Ozalis asked. He admitted he hadn’t, but he said that the Health Department’s inspector, Jomika Bogan, had never bugged him about getting it in.
“She didn’t check,” Heo said.
“When you didn’t [write one], what was her response?” Ozalis asked.
“Nothing,” he said.
In fact, Heo added, employees continued to give him advice on how to conduct repairs without the plan in hand. They told him where to sign up for a class on lead-paint renovations, where to buy a special brand of paint and how to wipe up lead dust. This week, Bogan and Heo walked around the perimeter of the house picking lead paint chips off the ground, he testified.
“Shocked” By These “Tricky Things In America”
Near day’s end, Ozalis started a second round of questioning about why Heo had continued to work with America One Abatement, even if he didn’t like its work.
In April 2008, before the Guamans moved in, a Health Department inspection identified toxic lead levels in 69 interior locations, most so high that they surpassed an X-ray gun’s measurement capacity. The city ordered Heo to conduct an abatement the following month, directing him to apply for a forgivable loan through a city-administered program, which drew funding from the U.S. Department of Housing and Urban Development.
“The contractor told me about some tricky things,” Heo said. “I was a little shocked in America there are these kind of tricky things around.” He said that three contractors had to submit bids, but he didn’t know to whom. After he found out America One Abatement was selected as the lowest bidder, one of its employees told Heo that all three firms had worked out prices ahead of time. “They had some deal,” Heo said.
Heo continued to use its services in 2015, saying the company knew the history of what had been done at 1323 Whalley Ave. and had a relationship with the Health Department. But fed up with the work, Heo testified, he has since taken a class and conducted initial repairs himself.
America One Abatement did not respond to multiple phone calls from the Independent this summer, and the company did not return an after-hours voicemail message Wednesday night. In court, Heo said he believed the employee who tipped him off no longer works at the company.
City employees will get a chance to respond when the case continues on Friday. Both Paul Kowalski, the environmental health director, and Bogan, the inspector, are expected to take the witness stand.
In his opening statement, Rose also suggested the city had done all it needed to years ago, when another child was poisoned at the Whalley Avenue apartment and when Heo suspected corruption. In December 2008, after America One Abatement finished up, the Health Department sent Heo a lead management plan, which stated he needed to “closely monitor all liquid encapsulated areas, including both interior and exterior surfaces.” That line is where Rose intends to focus all liability.
(Heo, for his part, said he didn’t remember reading that. Or if he did, he might not have comprehended it. His English is better now, he explained, but he didn’t understand the Health Department’s lingo. Only last month did he learn the definition of “abatement,” he said.)
Rose also suggested, in his opening statement, that the abatement work had been completed already. “As of this moment, as a result of what the Health Department has done, we’ve solved the issues,” he said.
Ozalis remained skeptical. “You’ll put on witnesses to say it’s completed, in full compliance with the statute?” she asked.
“Absolutely,” Rose said, “if it so please the court.”
“It’s not what pleases the court,” Ozalis shot back. “That’s the statute.”
The city, meanwhile, is trying to get Heo arrested. Prosecutors rejected the city’s initial warrant application, refusing to submit it to a judge, but a revised version is still being reviewed, according to Judith Dicine, the supervisory assistant state’s attorney for housing matters.
In the past, state courts have offered divergent opinions on who should foot the bill to remedy a lead-paint poisoning — a question of damages that’s distinct from NHLAA’s request but could offer guidance to Judge Ozalis.
In a foundational case in 1990, a Superior Court judge 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, another judge chose to set that precedent aside, saying it ignored the entire purpose of having a procedure in the state health code to deal with poisonings. 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.
NHLAA’s litigation poses a new twist: Who’s at fault if the lead-painted surfaces remain defective, but the city signs off on the building anyway?
Judge Ozalis gave a hint about her thinking in denying Rose’s motion to consolidate a separate lawsuit against Heo with NHLAA’s litigation against the city. And the judge should provide a complete answer soon. Recognizing the imminent risk of continued lead exposure, she agreed to fast-track the initial hearing and will likely issue a ruling with the same speed.