A Comparison between
“The New York City Childhood Lead Poisoning Prevention Act of 2003 (Intro 101A)”
and recently nullified Local Law 38

ITEM

Intro 101A

former Local Law 38

Child age of concern

under 7 years (as in current Local Law 1) (Board of Health can reduce to under 6 in future, after public hearings)

under 6 years

Definition of Lead paint

1.0 mg/cm² 

same

Definition of Lead dust

Federal standard: 40 ug/ft² floors, 250 ug/ft² window sills, 400 ug/ft² window wells (DoH can set more stringent levels)

Not even addressed -- much less defined.

Lead Hazards - definition

Any condition that causes exposure to lead from lead contaminated dust,  or lead paint that is peeling or present on chewable, impact, or friction surfaces that would result in an adverse health effect.

Only peeling lead paint or paint on deteriorated subsurfaces.

Child were unprotected from poisoning from lead dust generated by a friction surface or chewing a mouthable surface.

Presumptions in pre-1960 building.

All paint in any pre-1960 building is presumed to be lead paint, as in current Local Law 1

All paint in pre-1960 building - but only for the purposes of this article (i.e., no presumption for liability purposes - tenants had to prove lead paint). Only applied to multiple dwellings

Landlords' duty to correct

Continues the duty in current law (LL1) to prevent, and expeditiously correct, any lead hazard

Only peeling lead paint.

No duty to prevent it.

Must also correct underlying defects, which are specifically defined as conditions that cause paint to peel

No such requirements. Thus, no incentive for preventing lead hazards.

Duty to maintain safe dwelling

Continues the landlord's duty in current law (LL1) to inspect and ensure that dwellings are free from lead hazards, whatever they may be, on a case by case basis. Requires owner to prevent hazards and promptly correct.

Landlords only needed to inspect once a year.

Shifted burden to tenant to notify landlord of hazards that occur between inspections. Required tenants to give written notice of lead hazards, which were limited to only peeling paint and deteriorated surfaces.

Thus, no basis for landlords to be proactive in preventing lead poisoning.

Landlord Investigation for Children

Similar to Window Guard Law (which works!) - Annual notice sent to tenant; if no response, landlord must investigate to ascertain if children present.

Like the old window guard law - which didn't work: If landlord received no response, no further investigation needed. No means to verify whether landlord has sent notice. No penalties for non-compliance. Landlord exempt from all liability unless has actual (not just constructive) notice of child. Tenant had obligation to inform landlord of new children (i.e., no constructive notice allowed).

Owners duty to inspect

At least annually - and more often if necessary, such as if landlord knows or should have known of condition that may cause lead hazards (such as leaking pipes or roof), or tenant complains.

Note that courts have declared landlords have a continuing duty, under current Local Law 1, to inspect for such conditions and are presumed to know.

Once a year - and only for peeling paint. No obligation whatsoever during the rest of the year unless tenant gives landlord written notice of peeling paint or landlord has actual notice. (As LL38 also lacked 101A's requirement that tenants be advised of landlord's and tenant's obligations in the lease, tenants likely not to know they must do this). And landlords could easily deny they were given notice!

Owner has duty if knows or should know children live in dwelling.

No obligation unless owner has actual notice of child (i.e., constructive notice not enough).

Scope of owner's

inspection

Inspection for lead hazards - which include peeling paint and conditions that could cause paint to peel or could create lead dust (such as scraping windows or doors)

Visual inspection only for peeling paint and deteriorated surfaces.

Thus, no requirement that landlord take any measures to prevent peeling lead paint conditions.

Owner must give tenant written results of investigation, and keep copy, available to HPD and owner's successors in title

No requirement to give tenant a written copy of visual inspection. No requirement that anything be in writing.

If child subsequently poisoned, owners could simply claim they didn't see any peeling lead paint during visual inspection. Tenant had no way to dispute this.

Whatever records kept were limited to only 3 years.

Penalties for noncompliance

No penalties whatsoever for noncompliance

Notice given in leases to tenants of owners' and tenants' obligations

No such requirements

Record keeping by Landlord

Exacting - for example, landlords must keep written records of all inspections, produce on request to HPD, and to the successor in title.

Vague and meaningless. This prevented any meaningful compliance, and protected bad landlords from the human consequences of their non-feasance.

HPD inspections

w/in 10 days of complaint

w/in 10 days of complaint, or 15 if in heating season.

When HPD enters an apartment for any inspection, required to find out if children under 7, and inspect for peeling paint

No such requirement. Presently, HPD inspectors could walk into an apartment and see small children or their toys, yet completely ignore obvious peeling lead paint violations because they were called in for something else, such as a leaky faucet. This failed to promote lead poisoning prevention and wasted scarce City inspector resources

Targeted inspections by HPD

HPD to  audit, and if necessary, inspect all child-occupied units in a building when a child is reported lead  poisoned

No such requirement.. Inspections were made only in response to tenant complaints

HPD violations

Served w/in 10 days of inspection.

Served w/in 20 days of inspection.

Notification of violation to be simultaneously sent to tenant

Unspecified form notification to be sent to tenant at some unspecified time

Owner has 21 days to correct (can be extended to as much as 49 days from date of Notice of Violation, if paint is stabilized)

Note that under current LL 1 landlords have only 24 hours.

Owner had 21 days to correct (could be extended to as much as 60 days from date of Notice of Violation)

Certificate of correction by owner

Sent w/in 5 days of date set for correction

Sent w/in 5 days of date set for correction

Shall include clearance dust test results. Must be done by independent 3d party, must wait one hour for dust to settle, must take 4 samples, must pass set levels or else must re-clean and retest. Must provide results to tenants.

Dust tests only when landlords correct a violation, and even then, not required for abatement work on wall and ceilings (only trim, windows and doors). No waiting period required for dust to settle before testing. No requirement that dust test results be provided to tenants upon request.

Submission of clearance dust test results

HPD shall not deem a violation removed until clearance dust test results submitted as required

No such provision in statute.

Thus, no way to know whether landlord had cleaned up the home safely.

HPD correction

HPD shall reinspect w/in 14 days of date set for correction, and if violation still not removed, HPD shall correct the violation w/in 14 days.

Thus, the deadlines are:
10 days: Response to complaint
10 days Issuance of Violation
21 - 49 days Correction by landlord
5 days mailing of certification
14 days HPD reinspection
45 days HPD correction

100-133 days TOTAL - i.e., minimum enforceable deadline for HPD removal of violation

If landlord failed to certify correction by date set for correction, HPD had to correct violation w/in 60 days.

However, if landlord certified the correction, HPD had to reinspect w/in 30 days of date of receipt of certification of correction. If HPD found the condition not corrected, had to then issue a notice of invalid certification within an additional 30 days, and then correct the violation w/in an additional 60 days after HPD mailed the notice of invalid certification.

Thus, the deadlines are:
10 or 15 days: Response to complaint
20 days Issuance of Violation
21 - 60 days Correction by landlord
5 days mailing of certification
30 days HPD reinspection
30 days Mailing of notice of invalid cert.
60 days HPD correction

176-220 days TOTAL - i.e., minimum enforceable deadline for HPD removal of violation

DoH obligation to inspect when child lead poisoned

As in current law (LL 50, Admin Code § 27-2126).  DoH must inspect and order correction, and certify to HPD for correction if landlord fails to do so within 16 days of report of lead poisoning.

Action level lowered from 20 to 15 g/dL, in response to current health research.

Same time period.

HPD correction of violations placed by DoH

(Note - these are violations placed when a child has become lead poisoned!)

HPD shall execute corrections w/in 18 days

Applies to any dwelling.

HPD had to execute corrections w/in 18 days.

Applied only to multiple dwellings (not 1 or 2 family dwellings)

Common areas

Peeling lead paint or lead paint on deteriorated subsurfaces are defined as lead hazards.

No requirements at all.

Correction measures upon vacancy

Wet scrape peeling paint, make bare floors smooth and cleanable

Essentially the same

Remove or cover all lead paint on friction surfaces

Adjust doors and windows so they don't bind

Safety regulations

DoH's Safety Regulations, based on federal standards, would apply whenever lead hazards are abated, and during interior demolition work. Apply to all dwellings with children under 7

Note: These safety regulation were enacted by the Board of Health after court orders told the City it could no longer allow landlords to abate lead paint in a hazardous manner.

Only a small portion of the DoH regulations applied. If landlord failed to correct with 21 days after violation placed, then landlord had to comply with full set of DoH safety regulations. This encouraged landlords to do a quick -- and dirty - job, to avoid imposition of full safety requirements. No provision whatsoever for city agencies to monitor safety of lead paint correction efforts, no means for tenants to protect themselves if landlord used unsafe practices.

Temporary tenant relocation during lead removal

Owners must provide if work cannot be performed without risk to tenants

Not addressed

Prohibition on Dry Scraping

Applies to homes, day care centers and schools

Applied only to homes.

Provisions for  Day Care Centers

Similar to residential section of bill


No such requirements.

Remedies

No limitations

Only Article 78 proceeding in Supreme Court

Harmonizing agency functions

HPD to consult with  DoH input on regulations and forms

No such provision.

Tax incentives for lead abatement

J-51 tax incentives expanded to cover lead inspections and risk assessments -- regardless of whether a child is already poisoned -- and abatement.

Not addressed