Judge To City: Get Moving On Lead

Paul Bass PhotosNo more excuses: Get in the building. Get out the lead. Protect poisoned kids.

Superior Court Judge Walter Spader Jr. issued those marching orders to the city Thursday.

Spader specifically ordered the city Health Department to take over removing lead paint from a flaking-paint-filled 969 Elm St. apartment where two little boys have been found to have high lead levels in their blood.

He ordered the city to have an abatement plan ready by July 16 and to begin work by July 31, at which point it must pay to put up the poisoned children’s family in another location until their apartment is safe.

More broadly, Spader ordered the city to change its approach to tackling what he called New Haven’s lead paint “public health crisis.”

Spader started presiding over New Haven’s housing court only last month; already he has heard a series of cases accusing the city of inaction, including one in which an inspector admitted clearing a home that was still riddled with unsafe code violations.

In these cases, the health department’s handling of lead cases has in effect been put on trial. The cases have forced officials, who have otherwise refused to speak publicly about their work, to explain themselves on the stand.

It hasn’t gone well. Including on Thursday.

“We have to have a point where the city moves more practically in this cases,” Spader said in issuing his order at the end of a four-hour hearing in the sweltering third-floor housing courtroom at 121 Elm St.

“You guys are going to do this remediation. It’s not an excuse that the city lacks money.”

TJ’s Lead Level Spikes

New Haven Legal Assistance Association (NHLAA) has been behind the lawsuits, including Thursday’s, which it filed on behalf of TJ Mims, who turns 3 years old in August.

The health department learned last August from a state database that TJ tested at 6 micrograms of lead per deciliter of blood — just over the warning level set by public health experts. The Centers for Disease Control say that no lead exposure is safe. Even at moderate levels (between 10 to 25 micrograms of lead in a child’s blood), the neurotoxic metal can cause irreversible damage to intelligence and memory and can result in permanent hyperactivity disorders and learning disabilities. The state uses a 10 microgram cut-off for mandatory reporting; the city uses the CDC’s recommendation of taking action beginning at 5.

By December — during which time the city failed to take legally required action, the lawsuit charges — TJ’s lead level had skyrocketed to 17 micrograms of lead per deciliter of blood.

His 11-month-old brother, Traymar, tested at 9 in June.

Eleven months after the city learned of the problem, the apartment remains unabated. The landlord has not undertaken a city-ordered abatement. NHLAA attorney Amy Marx asked Judge Spader Thursday to order the city to undertake the abatement itself and move the family temporarily to safer surroundings. The city’s attorney, Deputy Corporation Counsel Roderick Williams, responded that it had no legal obligation to do so, and that it has taken appropriate action to date.

To challenge the city’s argument, Marx called Health Department lead inspector Jomika Bogan to testify. Bogan has handled the 969 Elm St. case.

As she fielded questions, Bogan fanned herself with a copy of her written case file. She had good reason to: The third-floor courtroom was steamy. Two portable Koldwave air-conditioning units helped — during breaks. But they couldn’t be left on during the four hours of testimony. Thanks to the room’s hopeless acoustics, it was hard enough to hear people speak from inches away. In fact, Judge Spader leaned over from his perch to try to make out what Bogan was saying. (At one break, a clerk brought two cupcakes over to a temporarily running Koldwave cool them off.)

Marx gave Bogan a second reason to sweat as she walked her through her actions in response to the poisonings.

Bogan had a written case file because, she testified, the health department doesn’t have a computerized system to store and monitor cases.

Bogan testified that she learned of TJ’s initial blood level on Aug. 14, 2017, when a colleague passed along a finding from a state database. The next day, Bogan called TJ’s mother, Latesha Jones. She didn’t reach her.

On Sept. 1, Bogan swung by the property unannounced. Jones wasn’t home.

Bogan said she left her business card at the multi-family house so Jones could contact her. Jones testified that she never saw the card.

Where did you leave the card? Marx asked.

“I think I went to the [front] door,” Bogan responded.

Soon after, she closed the case.

Bogan said she had tried again to reach Jones by phone. Jones said she never got a message from Bogan. Jones also said she called the health department 20 times to seek information, to no avail.

Jones brought TJ back for another test on Dec. 8, when his blood level came back at 17 micrograms of lead per deciliter.

Bogan reopened the case after learning about the spiked level.  She went to the house again to inspect —on Jan. 28. She took dust wipes. She didn’t have time to finish that day, she said. So she returned — on Feb. 12, when she tested the walls with an X-ray gun. In total, she found lead in 126 different places in the walls.

The Health Department sent the landlord an order on Feb. 13 to remove the lead.

The landlord did not comply with the order to submit a lead abatement plan to the city. He did do some painting on his own, but did not address most of the contaminated areas.

On May 26, after NHLAA filed the suit, Bogan discovered she had never issued an order to clean up contaminated soil at the property. She testified that the original order had gone missing from her paper file. She issued an order to abate the soil in the lead on June 26. Under questioning from Marx, she acknowledged that she had received the lab soil results on Jan. 24.

The Health Department revealed prior to Thursday’s court session that it took one other step: On April 4 it applied to the state’s attorney’s office for a warrant to charge the landlord with failing to obey the order to abate the lead.

But that application has yet to make its way to a judge for his signature. So no warrant has ever been served. Bogan said she doesn’t know why the state hasn’t acted on the application.

Yet Bogan also testified that the same landlord she sought to have arrested was a “good guy” who was thwarted in efforts to submit a lead plan, because Jones allegedly wouldn’t let him in the apartment. She also praised the landlord for working on his own to start doing some repainting. Under questioning from Marx, Bogan acknowledged that the order called for him first to submit an abatement plan for approval to the city before beginning any work.

Under friendlier questioning from Williams, the city’s attorney, Bogan noted that she has around 60 lead cases to monitor at one time.

Clock Ticks

Mom Latesha Jones had her eye on the clock on the courtroom wall when she began testifying at 2 p.m. following a lunch break.

Jones works as a licensed practical nurse at an East Haven rehabilitation facility; her shift was starting at 3.

Under questioning, Jones spoke of how she ended up in a rent dispute with her landlord (leaving her in too much debt, for instance, to be able to move elsewhere). She had to leave her job for a while because of health problems encountered during her pregnancy with Traymar. Back problems left her bedridden. After delivery, she suffered from disseminated intravascular coagulation (DIC),  a rare and potentially life-threatening blood clotting condition.

At first she and the landlord worked out a repayment plan. Then he sued for eviction in court. That suit is ongoing.

City attorney Williams asked Jones if she has tried to clean out the paint chips on her window sills. She said she regularly sweeps and, under advice from a health department nutritionist, uses a wet cloth to prevent swept-up chips from spreading. She said she tries to keep the windows closed. But when it gets hot, she needs to crack open the window — and new chips break off, she testified.

“If the landlord were to contact you now and ask permission” to come into the apartment to do abatement, is Jones “willing to provide access?”

Yes, Jones said.

He asked Jones if she speaks with the landlord. She sometimes does, she said, but not about the lead; she said he told her, “you’re a very nice person. But I just want you and the kids out.”

“I was very scared,” Jones said.

After describing the lead paint found in photos Marx presented, Jones finally was dismissed to go to work. The clock read 2:38. The clock was four minutes slow.

Jones bolted out with her mom, Dolores Townes, who was holding 11-month-old Traymar. On the way to East Haven, she got stuck: A traffic accident had backed up traffic as she tried to get onto I-95. She called her boss to let him know she’d be late. She arrived at work around 3:30, hoping she wouldn’t get written up.

“Trying To Help Kids”

Meanwhile, back in the courtroom, Marx questioned Bogan’s boss, Paul Kowalski.

Marx had tried to get Kowalksi’s boss, city Director of Health Byron Kennedy, on the stand. Kennedy has yet to make any public statements about his department’s handling of lead cases. Marx reported that she had subpoenaed him to court. The marshal she hired made three trips to Kennedy’s office and couldn’t find him there to serve the warrant.

Kowalski was here to testify, Williams told the judge, so the point was moot.

As Kowalski proudly told the judge, he has overseen lead-paint cases for 38 years as the city’s environmental health director. He said he helped craft the city ordinance. “We [lead-abated] about 1,700 homes in this town over the past 20 years” with the help of millions of federal dollars he helped bring into the city, Kowalski said. He noted that the department is seeking a new $4.1 million infusion from the feds.

“This publicity,” he complained, referring to articles critical of his department’s work, “isn’t helping, We’re trying to help kids.”

Marx grilled Kowalski and what steps his team took in the case of 969 Elm.

She asked if he has tried to find out why the state’s attorney still hasn’t gotten the arrest warrant signed three months after Kowalski’s office submitted the application. Yes, Kowalski responded: He has sent at “at least two” emails and made “at least two phone” calls.

Attorney Williams asked Kowalski how long it would take the city to do the abatement job itself, as Attorney Marx was requesting. Three months, Kowalski said. “A homeowner could probably do it in two to three weeks.”

One big reason: The city has to put the work out to bid. That takes time.

“Why,” Amy Marx followed up, “would it not take 24 hours to put a bid out to contractors” and then get them started soon after?

“Contractors can’t just drop” what they’re doing, Kowalski responded.

Kowalski also testified that the city just doesn’t have the money to do the abatement.

Marx followed up by invoking a city ordinance that allows city government’s Livable City Initiative (LCI) to put liens on blighted properties. LCI uses that tool to clean up public health hazards that private property owners refuse to address.

Marx asked Kowalski what plan the city has to protect the health of the lead-poisoned children at 969 Elm. Kowalski’s response: It has to wait for the state’s attorney to act on the arrest warrant application.

Not Buying

No you don’t, Judge Spader concluded when both sides rested and he prepared to announce his decision on Marx’s request for an order.

“I don’t think you can rely just on an arrest warrant” to tackle cases like this, Spader told the city. “Your ordinances allow you to step in.”

“I don’t think you can use the excuse: ‘We don’t have the money for it.’ The safety of the children is too important.”

Spader, in genial and respectful tones, told the city that “it does seem as though [in] these cases that more effort could be placed in pushing property owners” to obey abatement orders.

He also referenced remarks Bogan and Kowalski had made that, because Bogan never got inside the apartment during her initial attempt, the city couldn’t be sure children really lived there: “There are obviously children in this house.”

He told the city it must indeed carry out the abatement at 969 Elm. After setting the July 16 deadline for submitting a plan, Spader gave the city until Aug. 16 to begin the work and relocate the family. Marx argued that there’s no reason the city can’t begin work sooner than that.

Spader agreed and changed the second deadline to July 31.

Outside the courthouse afterward, Marx said she’s hoping that, rather than having to keep filing these cases, she can work with the city to address its broader problems with lead paint abatement. NHLAA succeeded in doing that at Church Street South: It had to file a suit first and embarrass the city, and then officials worked hard alongside legal aid to help all 288 families living in the now-under-demolition apartment complex to find new homes where they could breathe the air without getting sick.

“We can only begin to address this public health crisis if the Health Department acknowledges that there is a problem. To date, the Health Department has insisted in court and in statements to the press that they are doing a ‘spectacular’ job, that the lawsuits are ‘off the wall,’ and that the cases brought are ‘lies and distortions,’” Marx said. “The Health Department has also consistently blamed the tenant victim for the child’s lead poisoning. In the five cases in which a lead poisoned child has sought help from the court, the undisputed facts were that the Health Department had been notified of a lead poisoned child a long time prior and at the point the case reaches court the child is still living with lead poisoning in an unabated unit. These children will continue to suffer irreparable harm until the Health Department either chooses, or is forced by judicial action, to take a serious look at how it can do better by the children of our city.”

Marx was shaking her head at the revelation in court earlier that day about the department’s reliance of paper files to keep track of lead cases.

“It’s rather inconceivable,” Marx said, “that we are in the year 2018 and children’s health is being endangered because a city agency can’t computerize its records.”


Previous coverage:

City-OK’d Lead Fixes Fail Independent Inspection
Judge: City Dragged Feet On Lead
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

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posted by: 1644 on July 6, 2018  8:53am

So, the court is ordering a city which cannot even do a proper lead inspection to do the abatement? 

As for: Jones spoke of how she ended up in a rent dispute with her landlord (leaving her in too much debt, for instance, to be able to move elsewhere). She had to leave her job for a while because of health problems encountered during her pregnancy with Traymar. Back problems left her bedridden. After delivery, she suffered from disseminated intravascular coagulation (DIC),  a rare and potentially life-threatening blood clotting disorder.

It sounds more like health problems prevented her from paying her rent, rather than a “rent dispute”.  Then he sued for eviction based on non-payment in October 2017.

The landlord got a default judgment, The landlord then agreed to a repayment plan, which she failed to comply with, but the landlord agreed to an out of court modification and allowed her to be reinstated as a tenant in good standing. http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NHHCV176006015S

posted by: Noteworthy on July 6, 2018  9:25am

Kennedy AWOL Notes:

1. So where oh where has our Dr. Kennedy gone?

2. Why is he not in the office?

3. Why is the city so delinquent on its lead abatement program? We’re certainly paying for it and the city has gotten grant money for it.

4. And now, our Dear Dr. Kennedy, the recipient of some of that $500K in bonus money the city found laying around, wants to get more federal grant money presumably to do a better job than the one he’s been doing.

5. The judge says - it’s about time.

posted by: mmrmike1 on July 6, 2018  10:36am

Can someone please explain to me why the Health Department does not have computers to keep records. I just checked my calendar and it is 2018,not 1988 at which time would have been a worthy excuse. This kind of nonsense has to come to an end. Can we please get a new ringmaster for this 3rd rate circus.

posted by: robn on July 6, 2018  11:08am

It’s not possible to get a good contractor in at the drop of a hat for anything, never mind lead abatement. And its not a cheap process; not $100s, not $1000s; its tens of thousands of dollars ...and if the city is getting hardass about outside soil removal that will escalate those costs even further. I see an immediate future of drastic rent escalation where abatement is done and property abandonment where it isn’t.

posted by: Ryn111 on July 13, 2018  11:10am

Can someone please explain to me why the city is paying to abate private propert