More than two months after the Health Department was notified about a lead-poisoned child in an Amity apartment, chipped paint is still flaking outside the two-story building — an ongoing health hazard that has prompted legal aid lawyers to drag the city to court.
New Haven Legal Assistance Association filed the lawsuit in state Housing Court on Monday claiming that the city violated both state law and local ordinances in its response to off-the-charts lead levels in the blood of Jacob Guaman.
The suit alleges that after the 2-year-old’s blood first tested over the legal limit in 2015, the city conducted a perfunctory inspection, let the landlord off without submitting an abatement plan and didn’t properly reinspect the premises. That response has left Jacob “suffering irreparable harm,” including still-elevated lead levels known to cause neurological damage, the complaint argues.
The suit asks a judge to grant injunctive relief, forcing the city to remove the child from the apartment at 1321 Whalley Ave. and fix up the lead-paint directly.
In addition to the city government, the suit names two employees as defendants: the Health Department’s director, Byron Kennedy, and head of environmental health, Paul Kowalski.
“The city needs to immediately begin removing the lead from the apartment,” said Amy Marx, a staff attorney who’s handling the case. “We need the city to protect the health of this child.”
NHLAA is also pursuing more information about the city’s health department inspection in general, arguing that this case reflects a broader problem of a lack of enforcement. “It’s our hope and expectation that we do not need to devote the resources of a class-action suit to get attention to this issue,” Marx said. She and other NHLAA lawyers filed the original complaints that led to the resettlement of families from the Church Street South apartment complex, plans to demolish and rebuild the property, and a class-action suit filed by another attorney.
“If necessary, we will take any legal action required to make sure the Health Department meets the requirements of state law,” she said of this latest case.
“With regard to this matter, it is the policy and practice of the City of New Haven to withhold comment on pending litigation,” said city mayoral spokesman Laurence Grotheer.
After dangerously high levels of lead were detected in Jacob Guaman’s blood in a May 2015 test — 36 micrograms per deciliter, about seven times above the threshold for alarm — the Health Department dust-wiped the apartment’s interior to try to identify the source of the lead paint. The department also sent a letter notifying the landlord of the issue, which was largely copied from a 2008 investigation of the property.
This response “followed none of the standard lead poisoning prevention and control procedures,” the complaint says.
According to state law, any blood test with over 20 micrograms of lead per deciliter is supposed to trigger a response from the Health Department, requiring it to “order action to be taken … to prevent further exposure of persons to such poisoning,” the statute reads.
Regulations go on to set out a very specific protocol that must be followed, including assessing all lead-based surfaces, dust, drinking water and outside soil a using spectrophotometric test (usually with an x-ray fluorescent gun); ordering the correction of all defective surfaces with liquid encapsulation to prevent chipping or removal, not simply painting over; ensuring a lead abatement plan is submitted within 15 days of a violation and begun within 45 days; conducting a post-abatement inspection; and reporting the results to the state.
The city failed to follow those regulations, the lawsuit alleges. “The landlord neither submitted an abatement plan nor conducted any abatement. The Health Department imposed no fines nor criminal punishment for such landlord non-compliance with the January 2016 order.”
A spokeswoman for the Connecticut Department of Public Health said law prohibits her from providing information about the city’s compliance in this case. “Unfortunately, we can neither confirm nor deny that a report was submitted,” Maura Downes, director of communications, wrote in an email.
“To this day, we still do not know which parts of the apartment are causing this severe lead poisoning,” attorney Marx said.
New Haven’s ordinances are even stricter, requiring the Health Department to respond when blood has just five micrograms of lead per deciliter. Repairs must also start sooner — within just seven days — and if they don’t happen, the Health Department director can take over the abatement and impose a lien on the property to recoup costs.
This August, Jacob Guaman’s blood levels remained elevated at 17 micrograms per deciliter. Marx wrote a demand letter to the Health Department and the Livable City Initiative, detailing the tenants’ complaints about “urgent fire, health, and safety concerns” and asking for a chance to discuss the city’s “pattern of failure” monitoring code violations.
Marx said she never got the sit-down she requested, and the city hasn’t indicated a willingness to fix the apartment within the timeline required by law. Out of other options, legal aid filed the lawsuit “to call attention to the fact that the city’s present procedures are totally inadequate to protect children’s health,” Marx explained.
Since then, Jong Hee Heo, the landlord, has personally painted new coats on top of the chipped paint on windowsills and interior walls. Heo said he’d been overcharged by contractors in the past, so he decided to get certified in lead-safe renovations himself. (The U.S. Environmental Protection Agency confirmed Heo took a course on Sept. 13.) He said he’s also readying an application for a loan to redo the exterior, but he hasn’t submitted anything yet.
Heo tried to settle the case out of court several times. In one conversation, he offered to buy the Guamans out. To settle the case, he’d give them a few month’s rent free, plus the costs of moving to another apartment. He’d even throw in a larger space at the nail salon where Gloria Montero, the child’s mother, leases a spot from him.
Another time, right after the lawsuit was filed, he called up and said, “What do you want? Do you want money?”
“You have to call my lawyer,” Montero told him.
“No, how much do you want?” Heo pressed. He said later that he was just trying to assess the potential cost of the suit.
On Tuesday afternoon, Heo said that the dispute has been a “big headache.”
“I follow the rules and requirements. I got insurance, and I follow New Haven City,” he said. “I’m worried. I don’t have enough money. It looks like [I have] a lot of money, but I’ve got a lot of loans. I have to pay to taxes and banks.” He added, “I don’t want to give them money because I don’t think I was wrong.”
Montero said she had a word of advice for other parents in the Elm City: “They have to fight, because the city doesn’t care,” she said in her living room, as her boys bounced around the couch. “We had problems; we called them in. But they don’t care what happens with the kids.”
The first court hearing is scheduled to take place on Nov. 7.