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          2  CITY COUNCIL

 

          3

             CITY OF NEW YORK

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             ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑x

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             THE TRANSCRIPT OF THE MINUTES

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                       of the

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             COMMITTEE ON HOUSING AND BUILDINGS

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         10                 December 5, 2003

                            Start:  1:25 p.m.

         11                 Recess: 3:05 p.m.

 

         12                 City Hall

                            Council Chambers

         13                 New York, New York

 

         14

                  B E F O R E:

         15

                         MADELINE PROVENZANO

         16                                Chairperson,

 

         17

                         COUNCIL MEMBERS:   Jose Rivera

         18                                 Diana Reyna

                                            Tony Avella

         19                                 Gale Brewer

                                            Leroy Comrie

         20                                 Robert Jackson

                                            Kendall Stewart

         21                                 Erik Dilan

                                            Christine Quinn

         22                                 Charles Barron

 

         23

 

         24       LEGAL‑EASE COURT REPORTING SERVICES, INC.

                         17 Battery Place ‑  Suite 1308

         25              New York, New York 10004

                              (800) 756‑3410

 

 

 

 

 

 


                                                            2

 

 

          1

 

          2  A P P E A R A N C E S

 

          3

             Dr. Thomas Frieden

          4  Commissioner

             New York City Department of Health

          5  and Mental Hygiene

 

          6  Jerilyn Perine

             Commissioner

          7  New York City Department of Housing Preservation

             and Development

          8

             Linda Gibbs

          9  Commissioner

             New York City Department of Homeless Services

         10

             Wilfredo Lopez

         11  General Counsel for HUD

             New York City Department of Health

         12  and Mental Hygiene

 

         13  Harold Schultz

             Special Counsel

         14  New York City Department of Housing Preservation

             and Development

         15

 

         16

 

         17

 

         18

 

         19

 

         20

 

         21

 

         22

 

         23

 

         24

 

         25

 

 

 

 

 

 

 


                                                            3

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 CHAIRPERSON PROVENZANO: If things

 

          3  look a little confusing, they are.  This is what,

 

          4  Bill, fourth, fifth hearing?

 

          5                 COUNCIL MEMBER PERKINS:  That's a

 

          6  good number.

 

          7                 CHAIRPERSON PROVENZANO:  We'd like to

 

          8  move it along as quickly as possible.  For those of

 

          9  you that don't know, there's a storm outside and

 

         10  we'd like people to get home quickly and safely, so

 

         11  I'm asking everybody to be as brief as possible.

 

         12                 We'll start with Council Member

 

         13  Perkins, who promised me he had a brief opening

 

         14  statement.

 

         15                 COUNCIL MEMBER PERKINS:  Thank you

 

         16  very much, Madam Chair, for your cooperation and the

 

         17  opportunity to make a brief opening statement.

 

         18                 I am disappointed that the

 

         19  administration walked away from the negotiating

 

         20  table at the eleventh hour when the health and

 

         21  wellbeing of New York City's children is at stake.

 

         22  This bill is the most comprehensive, effective lead

 

         23  bill legislation in the country.

 

         24                 Further, it is a reasonable and

 

         25  approachable bill that addresses the legislative

 

 

 

 

 

 

 


                                                            4

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  concerns of the administration while still

 

          3  protecting the health of children.  I urge the Mayor

 

          4  to take another look at this bill and invite him to

 

          5  join us in passing sweeping legislation that will

 

          6  ultimately save hundreds of thousands of children in

 

          7  our city from the hazards of lead paint and lead

 

          8  paint poisoning.  Thank you very much.

 

          9                 CHAIRPERSON PROVENZANO:  That was

 

         10  very brief, Bill.

 

         11                 We have Tom Frieden from the

 

         12  Department of Health and Mental Health.  We have

 

         13  Jerilyn Perine from HPD, and we have Linda Gibbs

 

         14  from the Department of Homeless Services.  So

 

         15  whichever one of you wants to start first.

 

         16                 COMMISSIONER FRIEDEN:  Good

 

         17  afternoon.  I'm Dr. Thomas Frieden, Commissioner of

 

         18  Health and Mental Hygiene.  I appreciate the

 

         19  opportunity to speak with the Council, this City

 

         20  Council Committee on Housing and Buildings and other

 

         21  members of the Council about lead poisoning

 

         22  prevention in New York City and the latest version

 

         23  of Intro. 101A.

 

         24                 We're all concerned with stopping

 

         25  lead poisoning in New York City.  Several weeks ago

 

 

 

 

 

 

 


                                                            5

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  I testified before you about Intro. 101A.  I

 

          3  addressed components that, with some slight

 

          4  modification to ensure, a law would protect those at

 

          5  greatest need would allow us to achieve our goals.

 

          6  Most of those concerns appear to have been addressed

 

          7  in the latest version of the bill, however there are

 

          8  still issues of concern.  It would be irresponsible

 

          9  to rush into a law that has such wide ramifications

 

         10  for the city's health and for the city's housing and

 

         11  that includes components that have potentially very

 

         12  large costs but which do little or nothing to

 

         13  address lead poisoning and to prevent it in our

 

         14  children.

 

         15                 I'll briefly review these issues with

 

         16  you. First is the issue of a chewable surface under

 

         17  the latest version of the bill.  In the latest

 

         18  version, landlords would be required to remediate

 

         19  all window sills in all pre‑ 1960 buildings in every

 

         20  neighborhood in New York City where there's a child

 

         21  under the age of seven.  There are an estimated

 

         22  350,000 dwelling units in New York City with such a

 

         23  child.  Assuming for a moment that an average of

 

         24  eight window sills per dwelling unit, that's 2.8

 

         25  window sills which need to be remediated in the near

 

 

 

 

 

 

 


                                                            6

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  future.  No matter how stringently work practices

 

          3  are monitored, it is quite possible that some of

 

          4  that remediation will involve the generation of lead

 

          5  dust and that unintentionally that component could

 

          6  result in more rather than less lead poisoning.

 

          7                 Remediation of window sills should be

 

          8  predicated on a real risk of poisoning.  The best

 

          9  scientific knowledge suggests that most childhood

 

         10  lead poisoning results from hand‑ to‑ mouth

 

         11  activity.  Remediation should be done where there's

 

         12  evidence that such a risk exists.  Thus, we

 

         13  recommend that chewable surfaces be defined as an

 

         14  edge or protrusion that has been chewed or is

 

         15  deteriorated or where an occupant has notified the

 

         16  owner that a child lives there has mouthed or chewed

 

         17  it.  In other words, either if it is actually

 

         18  deteriorated or if a parent or a family member or a

 

         19  child requests remedial action.  We're not saying it

 

         20  shouldn't be done, we're saying it doesn't make

 

         21  sense to do this in nearly 3 million window sills in

 

         22  short order because you may actually cause more lead

 

         23  poisoning than you prevent. We know there's a risk

 

         24  of causing lead poisoning when you disrupt intact

 

         25  lead paint.  We're not certain that doing this will

                                                      

 

 

 

 

 

 


                                                            7

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  prevent many or even any cases of lead poisoning.

 

          3                 Second, we want to emphasize once

 

          4  again the need for realistic time lines.  It is the

 

          5  owner's obligation to correct the hazards and the

 

          6  owner needs adequate time to do this.  HPD will

 

          7  discuss most of the time line issues, but I do want

 

          8  to discuss one that specifically pertains to the

 

          9  Health Department.  The current version requires

 

         10  that we certify to HPD any dwelling unit where the

 

         11  landlord failed to comply with the order to correct

 

         12  the violation.  We support this provision as we do

 

         13  so many other provisions in this version of the

 

         14  bill.

 

         15                 New York City is one of the only, if

 

         16  not the only place in the U.S. Where a city will

 

         17  correct a hazard when the landlord fails to do so.

 

         18  But the current bill requires that this

 

         19  certification be completed within 16 days of the

 

         20  report of the elevated blood lead level.  This is a

 

         21  problem.  When a blood lead test is received, the

 

         22  Health Department inspector goes out within an

 

         23  average of about two days.  However, there are

 

         24  situations where access into a dwelling unit is not

 

         25  successful.  Sometimes the family's out of town.

 

 

 

 

 

 

 


                                                            8

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  Sometimes the family is not easily found. Physicians

 

          3  frequently don't accurately write an address on the

 

          4  blood test request requisition slip.  Sometimes it's

 

          5  not the family's primary residence or address.

 

          6  Until we get into a home we don't know if there's a

 

          7  lead‑ based paint hazard at all.  And in about 40%

 

          8  of the addresses we don't find a lead paint hazard.

 

          9  Once we identify a violation we issue a legal order

 

         10  to the landlord to abate.  It takes several days to

 

         11  prepare that order so it will stand up in court if

 

         12  it's challenged, as it often is, or sometimes is,

 

         13  and it takes some time to serve it or have it arrive

 

         14  at the landlord.  The landlord is then given five

 

         15  days to correct. Certifying to HPD within 16 days is

 

         16  neither efficient nor effective.  In many cases the

 

         17  landlord would have begun doing the work and we will

 

         18  now have HPD trying to do the work as well.

 

         19                 We recommend a simple change in this

 

         20  provision, that the provision specify that the

 

         21  certification process be completed within 16 days of

 

         22  the date of identification of lead‑ based paint

 

         23  hazards.  The implementation time for this

 

         24  legislation is also unrealistic.  As you know, the

 

         25  discussion of this legislation has been going on for

 

 

 

 

 

 

 


                                                            9

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  many months.  The legal, technical and

 

          3  administrative aspects of implementation are

 

          4  extraordinarily complex.  We want to get it right.

 

          5  We should proceed with speed but not with

 

          6  irresponsible haste. It will take months to

 

          7  promulgate regulations, hold public hearings on

 

          8  those regulations, analyze and incorporate the many

 

          9  comments which we are inevitably going to receive,

 

         10  establish procedures for implementation and ensure

 

         11  effective implementation.  It may be easy to set a

 

         12  deadline but ensuring that doing so doesn't

 

         13  unintentionally lead to longer delays and effective

 

         14  implementation of effective legislation is much

 

         15  harder.

 

         16                 At the last hearing the Council

 

         17  requested cost estimates.  Since we only received

 

         18  the bill very late last night, I can't give you an

 

         19  exact estimate, but we remain concerned in

 

         20  particular about the costly item of monitoring work

 

         21  practices for large jobs for a variety of reasons,

 

         22  including liability concerns which would arise in

 

         23  all work done that covers more than a hundred square

 

         24  feet. This could cost the Department of Health $7

 

         25  million or much more than that and I don't think it

 

 

 

 

 

 

 


                                                            10

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  would have a commensurate benefit in preventing lead

 

          3  poisoning.  This could be rectified with a

 

          4  relatively minor change in the wording of the

 

          5  legislation.

 

          6                 I'm also concerned about the

 

          7  provision for cleaning dust when no significant

 

          8  lead‑ based paint hazard has been identified.  The

 

          9  bill currently only allows us to order the landlord

 

         10  to clean it if we determine that the source of dust

 

         11  is from the dwelling.  The bill should more

 

         12  specifically allow the department to order the

 

         13  landlord to clean if there are no lead‑ based paint

 

         14  hazards in ‑‑ we should be able to order cleaning if

 

         15  there are lead‑ based paint hazards in the dwelling

 

         16  unit or in adjacent common areas.  Moreover, this

 

         17  should be specified which I believe was intended for

 

         18  children with blood lead levels of 15 or greater.

 

         19                 As you know, my scientific judgment

 

         20  is that changing the current practice of covering

 

         21  children under six, established pursuant to the now

 

         22  voided Local Law 38 covering children under seven,

 

         23  would be a serious error.

 

         24  The current draft legislation is an improvement as

 

         25  it allows the Board of Health to reduce the age to

 

 

 

 

 

 

 


                                                            11

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  six or under six after one year.

 

          3                 I want to make clear that our concern

 

          4  on this issue has everything to do with preventing

 

          5  lead poisoning in our city's children.  By

 

          6  increasing the size of the population covered by

 

          7  15%, and that's what increasing the age by a year

 

          8  would do, all of this increase, being among children

 

          9  who are at vastly lower risk for lead poisoning and

 

         10  who would receive vastly lowered benefit from

 

         11  intervention, you reduce at any funding level the

 

         12  effectiveness of lead poisoning prevention efforts

 

         13  by 15%.  Let me reiterate, this is not an issue of

 

         14  resource allocation.  If a hundred million dollars

 

         15  is being spent on the program, it will be 15% less

 

         16  than it would be otherwise.  If a billion dollars is

 

         17  spent on the program, it'll be 15% less effective

 

         18  than it would be otherwise.

 

         19                 Younger children account for the vast

 

         20  majority of those who are lead poisoned.  The number

 

         21  of children with lead poisoning peaks at two years

 

         22  of age.

 

         23  Children under three play on the floor more.  They

 

         24  have more exposure to lead dust.  This is the age at

 

         25  which they have the most hand‑ to‑ mouth activity

 

 

 

 

 

 

 


                                                            12

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  which exposes them to lead dust from their hands,

 

          3  toys and bottles.  This is the age when their

 

          4  developing nervous system is most susceptible to the

 

          5  harmful effects of lead.  This is the age at which a

 

          6  child's elevated levels are most likely to be

 

          7  related to exposures in their own home versus

 

          8  exposures elsewhere. This is the age at which

 

          9  intervention to lower blood lead levels are more

 

         10  likely to be successful.  This is the age at which

 

         11  interventions to lower blood lead levels will have

 

         12  the most positive impact on child development.  All

 

         13  of these factors are very different among six year

 

         14  old children. Older children have a much lower rate

 

         15  of poisoning, are much less likely to be exposed in

 

         16  their home and, if exposed, it's less likely for

 

         17  that exposure to have their levels reduced as a

 

         18  result of environmental intervention.

 

         19                 I understand that beyond the issue of

 

         20  the merits of the decision of whether to cover six

 

         21  year olds or not, there are issues of environmental

 

         22  review.  There's apparently concern that if the

 

         23  nonimplemented Local Law 1 age of under seven is

 

         24  changed to under six, this could be harmful.  In

 

         25  fact, the opposite is the case.  If the number of

 

 

 

 

 

 

 


                                                            13

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  low risk children covered increases by 15%, then

 

          3  there will inevitably be more lead poisoning than

 

          4  there would be at any level of resource allocation

 

          5  than there would be if the current practice of under

 

          6  six is continued.

 

          7                 Any law can have unintended

 

          8  consequences.  In the case of housing, unintended

 

          9  consequences could potentially include decreased

 

         10  availability of apartments for children with

 

         11  families and increased homelessness.  We're all too

 

         12  familiar with the negative health consequences of

 

         13  homelessness and unstable housing.  Homeless

 

         14  children are less healthy.  Neighborhoods with more

 

         15  abandoned property are less healthy.  There are also

 

         16  potentially legal unintended consequences including

 

         17  a large increase in taxpayer costs as a result of

 

         18  compliance impossibility with proposed time frames,

 

         19  or landlord irresponsibility or because of a

 

         20  plethora of lawsuits.

 

         21                 As Health Commissioner, I hope that

 

         22  the cost resulting from this law go toward

 

         23  preventing lead poisoning. We're close.  Many of the

 

         24  changes in the statute, in the draft statute, are

 

         25  changes which are more protective of children.  Many

 

 

 

 

 

 

 


                                                            14

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  of the changes would make the draft statute more

 

          3  possible to implement.  There are a few remaining

 

          4  issues which unless resolved would result in a

 

          5  statute that could have very negative unintended

 

          6  consequences and would not devote the resources that

 

          7  we need to devote to lead poisoning prevention to

 

          8  the most effective measures of stopping lead

 

          9  poisoning in New York City.

 

         10                 It is for that reason, regretfully,

 

         11  because I hope that we will have a good law that we

 

         12  can agree on and implement rapidly but, regretfully,

 

         13  despite all of the areas that there has been

 

         14  significant progress, I would be unable to recommend

 

         15  that this law become effective at this point.

 

         16                 CHAIRPERSON PROVENZANO:  Thank you,

 

         17  Dr. Frieden.  You don't have copies of your

 

         18  testimony?  Yeah, I know things were kind of rushed.

 

         19

 

         20                 Now that it looks like I have several

 

         21  Council members here, let me introduce the folks

 

         22  that are here.  I am Madeline Provenzano, Chair of

 

         23  the committee.  To my left I have Council Member

 

         24  Tony Avella.  Next to him is Council Member Eric

 

         25  Dilan, Council Member Kendall Stewart.  Council

 

 

 

 

 

 

 


                                                            15

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  Member Christine Quinn is in front of us.  To my

 

          3  right Council Member Leroy Comrie, Councilwoman

 

          4  Diana Reyna, Councilman Bill Perkins, Council Member

 

          5  Joel Rivera.  I'm actually ‑‑ I was afraid I was

 

          6  going to be sitting here by myself today so I'm glad

 

          7  to see that so many members joined me.

 

          8                 I think what we'll do is let all of

 

          9  the commissioners testify and then we'll have

 

         10  questions.

 

         11                 COMMISSIONER PERINE:  Good morning ‑‑

 

         12  good afternoon, Chairperson Provenzano, members of

 

         13  the Housing and Buildings Committee.  My name is

 

         14  Jerilyn Perine.  I'm the Commissioner of the

 

         15  Department of Housing, Preservation and Development.

 

         16    I'd like to start by just clarifying for the

 

         17  record that we did not walk away from any

 

         18  negotiations last night.  I was here myself 'til

 

         19  quite late.  We basically, when language and

 

         20  comments that we made were not accepted, we went

 

         21  home.  We wouldn't be here today if we didn't think

 

         22  that there was a case to be made for some additional

 

         23  changes, and the points we would like to outline we

 

         24  hope will be able to be a step towards doing that.

 

         25  We remain willing to continue to talk.  That's why

 

 

 

 

 

 

 


                                                            16

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  we're here.

 

          3                 When I testified before this

 

          4  committee on November 17th, I stated that the

 

          5  proposed bill was a big step forward in the

 

          6  direction of improving the lives of children.

 

          7  However, we believe that some technical and

 

          8  procedural changes were required to have a better

 

          9  primary prevention program than we have had to date.

 

         10    Unfortunately, a review of the proposed

 

         11  legislation leads me to feel that it falls short of

 

         12  our expectations of a bill that we had hoped would

 

         13  strengthen our enforcement capacity and provide a

 

         14  workable framework to reduce lead pain hazards in

 

         15  the city's most vulnerable housing stock.

 

         16                 I've testified at least twice before

 

         17  this committee and both times I've emphasized that

 

         18  legislative time frames must be reasonable if we are

 

         19  to send a message that we are serious about carrying

 

         20  out the required work according to the standards

 

         21  that we all agree should be put in place.  Time

 

         22  frames that are unrealistic only ensure failure and

 

         23  noncompliance and will do little to protect the

 

         24  health of children at risk and improve the city's

 

         25  housing stock.

 

 

 

 

 

 

 


                                                            17

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 The City of New York is the only

 

          3  municipality in the country that carries out a large

 

          4  scale emergency repair program which completes

 

          5  emergency work in multiple dwellings when owners

 

          6  fail to correct the work themselves. Our employees,

 

          7  working within the constraints of the city's

 

          8  procurement rules, budget limitations, work rules

 

          9  and with all the difficulty associated with carrying

 

         10  out repairs in the housing stock that we do not own

 

         11  or control access to, have corrected over 10,000

 

         12  lead pain violations over the last three years alone

 

         13  at a cost of more than $13 million.

 

         14                 In short, HPD has had more experience

 

         15  doing work to correct lead violations than any other

 

         16  municipality or property owner in the country.  So

 

         17  if we indicate that time frames cannot be met, our

 

         18  view is not based on conjecture but rather on the

 

         19  most extensive body of work in the United States.

 

         20  We say again the time frames in the proposed

 

         21  legislation, although somewhat altered in this

 

         22  draft, remain difficult to comply with, particularly

 

         23  for HPD to follow up with emergency repair if needed

 

         24  and complete a final inspection when owners have

 

         25  undertaken the work themselves.  They are simply not

 

 

 

 

 

 

 


                                                            18

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  realistic.  Changing them would ensure that the work

 

          3  can be carried out in accordance with the stated

 

          4  objective of the bill, that is to prevent lead paint

 

          5  poisoning in children.  Leaving them as they are

 

          6  will undoubtedly create a situation where our

 

          7  workforce, which is diligent, hard working and

 

          8  committed to enforcing housing standards will be

 

          9  doomed to fail.  Nowhere in the bill is there

 

         10  language that would ensure that the city is

 

         11  protected against liability as it undertakes its

 

         12  heavy responsibilities under the law, not as a

 

         13  landlord but as a regulator.  The language that as

 

         14  in the previous bill protected the city and that

 

         15  language should be in this bill as well.

 

         16                 We have also had serious operational

 

         17  concerns with the provision in the law that require

 

         18  HPD to reinspect every lead violation it issues

 

         19  within a very short period of time.  And our

 

         20  inability to rely on the presumption of lead paint

 

         21  when we are unable to conduct or follow XRF

 

         22  inspection due to inability to gain access.

 

         23                 We continue to have concerns about

 

         24  requirements for recording intact services.  These

 

         25  will have the effect of reducing inspector

 

 

 

 

 

 

 


                                                            19

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  productivity and reducing the number of apartments

 

          3  that will be inspected.  And let me make this clear,

 

          4  it is not simply a function of resources. Time

 

          5  frames must reflect the actual tasks that must be

 

          6  carried out which include getting access to a

 

          7  tenant's apartment multiple times, developing an

 

          8  adequate scope of work and safe work containment

 

          9  practices obtaining all the necessary materials,

 

         10  adequately documenting the process, ensuring that

 

         11  qualified workers are carrying out the work and

 

         12  completing all of the cleanup and final dust testing

 

         13  that must be done before work can be determined to

 

         14  be complete.

 

         15                 In addition, time frames must be

 

         16  suspended when for any reason we cannot gain access

 

         17  to a tenant's apartment or other unforeseen

 

         18  circumstances arise.  We simply cannot be held to a

 

         19  standard that requires us to carry out work or an

 

         20  inspection in someone's apartment with no

 

         21  opportunity for extension when access to the

 

         22  apartment is not provided.  Based on our experience

 

         23  in carrying out work under Local Law 38 to correct

 

         24  lead violations, approximately one‑ half of the work

 

         25  that has been completed through the Emergency Repair

 

 

 

 

 

 

 


                                                            20

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  Program is completed within 60 days.  The other half

 

          3  takes more than 90 days, primarily because of access

 

          4  issues.  Appointments with tenants must be made and

 

          5  kept and we must make reasonable attempts to

 

          6  accommodate the needs of the tenants.

 

          7                 I want to be clear here.  I'm not

 

          8  talking about half of the jobs are not being done

 

          9  because people deny us access, it's that we're

 

         10  trying to accommodate people and their lives.  They

 

         11  have jobs and they have children and we've got to be

 

         12  able to get access to carry out fairly extensive

 

         13  work.  We try to work with people to accomplish

 

         14  that.

 

         15                 We should also be concerned with the

 

         16  unintended consequences of this law.  The failure to

 

         17  provide owners with a clear path to protection from

 

         18  tort suits may well have the same effect that it has

 

         19  had in Massachusetts. Massachusetts, which has a

 

         20  lead paint law which provides for strict liability,

 

         21  has experienced a pervasive problem with owners

 

         22  discriminating against families with children.  In

 

         23  New York with its substantial homeless and double‑

 

         24  up population, such families can ill afford the

 

         25  consequences of making it yet harder for low income

 

 

 

 

 

 

 


                                                            21

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  families to find housing.  By holding landlords to

 

          3  clear standards, but protecting them from

 

          4  unrealistic risks, we can mitigate this problem.

 

          5                 And finally, the time provided for

 

          6  the proposed law's effective date is still

 

          7  insufficient and we do note that you have extended

 

          8  it, but we will think it's too short.  This is a

 

          9  very complex bill requiring the writing of complex

 

         10  rules which must be publicly promulgated, the hiring

 

         11  and training of many workers, public education of

 

         12  owners, reprogramming of a complex computer system

 

         13  and purchase of sophisticated equipment.

 

         14                 In addition, the rehabilitation work

 

         15  currently under way in the city would have to come

 

         16  into compliance with a new standard within 120 days,

 

         17  potentially stopping or delaying work that is

 

         18  already underway.  Simply by extending the time

 

         19  frame we could resolve many of these issues.

 

         20  Programs at the federal level that require far less

 

         21  stringent time frames and scope of work took many

 

         22  years to implement.  While we recognize that the

 

         23  revised version lengthens the effective date to 120

 

         24  days, we will believe that this bill will require a

 

         25  phase‑ in process longer than that if we are to be

 

 

 

 

 

 

 


                                                            22

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  serious about implementing its provisions

 

          3  responsibly.

 

          4                 One example is the requirement that

 

          5  extensive rules including brand new ones that will

 

          6  govern safe work practices on all repair work be

 

          7  ready on the day the law goes into effect.  These

 

          8  rules will have a profound effect on the way that

 

          9  lead paint is handled in the city and should be

 

         10  carefully considered.  Doing these rules in 120 days

 

         11  is not reasonable or appropriate.

 

         12                 New York City has had one of the most

 

         13  aggressive programs of primary prevention in the

 

         14  United States.  We were the first city, almost the

 

         15  first city in the U.S. to ban lead paint in 1960.

 

         16  Now, lead hazard reduction law preceded the federal

 

         17  government's Title 10 rules and we have spent more

 

         18  money than any other municipality on direct work to

 

         19  reduce lead hazards.

 

         20                 In addition, as a result of an

 

         21  extended and significant public investment in the

 

         22  renovation of the city's low income housing stock,

 

         23  today we have the lowest dilapidation rate since it

 

         24  has been measured by the U.S. Census Bureau.

 

         25                 Once again, we believe that this

 

 

 

 

 

 

 


                                                            23

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  proposed legislation has made significant

 

          3  improvements.  The proposed bill has come a very

 

          4  long way.  We hope now that it can come a little

 

          5  further.  If not, I am unable to recommend that the

 

          6  Mayor sign the bill in its current form.  The

 

          7  changes we are suggesting do not change any of the

 

          8  standards for lead safety that the law provides for.

 

          9    They are instead simply intended to create even

 

         10  stronger safeguards for our city's children and

 

         11  ensure that the city's housing stock remains in good

 

         12  repair for generations to come.  Thank you.

 

         13                 CHAIRPERSON PROVENZANO:  Thank you,

 

         14  Commissioner.  We've been joined by Council Member

 

         15  Charles Baron.  I guess he didn't have enough of his

 

         16  committee. Commissioner?

 

         17                 COMMISSIONER GIBBS:  Good afternoon.

 

         18  My name is Linda Gibbs.  I'm the Commissioner of the

 

         19  New York City Department of Homeless Services.

 

         20                 In the City of New York today we

 

         21  provide shelter to a record 9,250 families.  This

 

         22  includes 17,000 children who are living in homeless

 

         23  shelters.  I'm here today to express concern that

 

         24  this legislation as currently written could have the

 

         25  effect of increasing family homelessness in New York

 

 

 

 

 

 

 


                                                            24

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  City.  Let me explain.

 

          3                 Nearly 80% of the families in

 

          4  homeless shelters today come from doubled‑ up

 

          5  housing situations. Meaning that they are living

 

          6  with friends or family members and then become

 

          7  homeless.  These are primarily young families.  67%

 

          8  of the children in the family shelter system are

 

          9  under the age of seven.  In New York City today it's

 

         10  estimated that there are 97,000 additional families

 

         11  with incomes under 20,000 who are currently in

 

         12  similar doubled‑ up situations.  These 97,000

 

         13  families with an estimated 200,000 children are

 

         14  living on the edge.  These are families who are at

 

         15  risk of homelessness.  These are the very families

 

         16  to which the city is focusing increased prevention

 

         17  efforts to help to avoid the trauma of homelessness.

 

         18

 

         19                 This legislation turns these families

 

         20  into a liability for landlords.  This legislation

 

         21  turns these families who are now enjoying some

 

         22  measure of stability as they live in the community

 

         23  with families and friends into families at even

 

         24  greater risk of homelessness.  It is clear that poor

 

         25  families with young children are exactly the

 

 

 

 

 

 

 


                                                            25

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  families we must make greater efforts to stabilize

 

          3  in housing.  Legislation that is meant to improve

 

          4  the health and wellbeing of low income families

 

          5  should not instead destabilize their housing

 

          6  situations in this tight housing market.

 

          7  Legislation meant to improve the health and

 

          8  wellbeing should not create new incentives for

 

          9  landlords to discriminate against families with

 

         10  children as has occurred in Massachusetts as

 

         11  Commissioner Perine has described.

 

         12                 Let me be clear.  We obviously want a

 

         13  law that provides clear standards for owners along

 

         14  with strong enforcement.  But we must also ensure

 

         15  that we do not create the unintended consequence of

 

         16  producing more family homelessness in this process.

 

         17  Thank you.

 

         18                 CHAIRPERSON PROVENZANO:  Thank you,

 

         19  Commissioner.

 

         20                 Commissioner Frieden, you mentioned

 

         21  an increase of some $7 million to your agency to

 

         22  implement it. I don't think either one of the other

 

         23  commissioners mentioned ‑‑ gave us a figure for what

 

         24   ‑‑ I may have missed it but ‑‑ okay.  I'd be

 

         25  interested in knowing if you have any idea, and I'd

 

 

 

 

 

 

 


                                                            26

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  also be interested in knowing if there's been a

 

          3  commitment from OMB to address this additional

 

          4  expense and if not where do you plan on getting this

 

          5  money?

 

          6                 COMMISSIONER FRIEDEN:  Again, the

 

          7  estimate of 7 million was specifically for work

 

          8  practices.  We estimate again making cost estimates,

 

          9  with about 12 hours after seeing the bill is

 

         10  difficult to do, but we estimate that it may be

 

         11  about $11 million for the Health Department alone.

 

         12  We have no additional money pledged or like next

 

         13  year from OMB.  In fact, as you all know, we have a

 

         14  multi‑ billion dollar deficit going into the future

 

         15  years.  $11 million comes on a series of painful

 

         16  budget cuts at the Health Department.  We don't see

 

         17  places where we could cut that amount of money

 

         18  without significant pain.  Anything that could be

 

         19  done painlessly has been done.  Cuts of $11 million

 

         20  would, for example, include all of the following

 

         21  programs. All of our intermediate school presence

 

         22  throughout public schools, a significant portion of

 

         23  our support for the several dozen child health

 

         24  clinics of HHC, our support for gratus medication

 

         25  programs and fuel waivers of HHC.  I would be open

 

 

 

 

 

 

 


                                                            27

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  to other suggestions also.  It's not that I'm saying

 

          3  these are the programs that we'd like to cut.  There

 

          4  are no programs left that we would think, let alone

 

          5  like, would be possible to cut without significant

 

          6  health ramifications.

 

          7  Most of what we do is legally mandated or related to

 

          8  outbreak control or related to contractual

 

          9  obligations that we continue or related to direct

 

         10  service for prevention of epidemics.  So we would

 

         11  not want to stop controlling West Nile virus.  We

 

         12  would not want to stop vaccinating for the flu.  We

 

         13  would not want to stop registering births and deaths

 

         14  and so there are a very limited number of places

 

         15  where we could cut.  $11 million is a very

 

         16  significant reduction and I don't see any way to do

 

         17  it without a great deal of pain.

 

         18                 COMMISSIONER PERINE:  We really

 

         19  didn't have a chance to analyze the cost in this

 

         20  bill.  We certainly analyzed the last version which

 

         21  was close to about $60 million in cost for HPD.  I

 

         22  think a lot of the changes in this bill actually

 

         23  would reduce that number.  I think we'd still be

 

         24  talking about tens of millions of dollars.  It would

 

         25  be difficult to say where we would take that from

 

 

 

 

 

 

 


                                                            28

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  within our budget because our agency's budget is a

 

          3  little different than a lot of other agencies.  We

 

          4  are overwhelmingly federally funded.  Our expense

 

          5  budget only has ‑‑ only accounts for ‑‑ about 20% of

 

          6  it accounts for tax levy funds.  So because we

 

          7  couldn't just switch over the federal money, because

 

          8  we get those grants for particular purposes often

 

          9  associated with capital work, we would really be

 

         10  hard‑ pressed to be able to come up with the right

 

         11  kind of money for this.  Certainly, we'd have to

 

         12  look to our preservation enforcement activities.

 

         13                 COMMISSIONER GIBBS:  The Department

 

         14  of Homeless Services has not had a chance to cost

 

         15  out the implications of this bill either.  The forms

 

         16  of that cost would come in two ways; one would be

 

         17  the cost of increased shelter that comes with

 

         18  increased family homelessness and, secondarily,

 

         19  would be the cost of compliance within the shelter

 

         20  system.  Both of those would have to be taken into

 

         21  account.

 

         22                 CHAIRPERSON PROVENZANO:  Thank you.

 

         23  Commissioner Perine, you mentioned Boston,

 

         24  Massachusetts, and we hear a lot of talk about their

 

         25  legislation.  Could you sort of expand on that

 

 

 

 

 

 

 


                                                            29

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  because I'm kind of in the dark about what's going

 

          3  on up there as compared to ‑‑

 

          4                 COMMISSIONER PERINE:  Well, what's

 

          5  happened there, you know, their housing stock is

 

          6  certainly a little different than ours is.  It's a

 

          7  smaller housing stock.  They don't have the large

 

          8  multiple dwellings that we have so most people who

 

          9  are renting are renting in a smaller stock.  They

 

         10  are also an old city as we are, so they do have an

 

         11  aging housing stock which is why they've got the

 

         12  similar kind of problem with lead paint.  They've

 

         13  got four times the rate of lead poison in children

 

         14  that we have.  One of the implications that has ‑‑

 

         15                 CHAIRPERSON PROVENZANO:  That's

 

         16  specifically Boston we're talking about?

 

         17                 COMMISSIONER PERINE:  That's Boston,

 

         18  yes, I'm sorry.  At least in Boston, and I don't

 

         19  know how pervasive the problem is statewide, but in

 

         20  Boston with it's very tight housing market, they

 

         21  have experienced pretty extensive discrimination

 

         22  against families with children.  Those complaints,

 

         23  as they do here, you know, go to the State's Human

 

         24  Rights Commission which has lead.  Complaints about

 

         25  discrimination with families has been a big issue

 

 

 

 

 

 

 


                                                            30

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  for them there.  Again, in a tight housing market

 

          3  it's a concern.  We don't want to create a situation

 

          4  here where people are at an unfair disadvantage when

 

          5  they are in the housing market looking for housing.

 

          6                 CHAIRPERSON PROVENZANO:  Thank you.

 

          7  I'm going to turn this over to some of my

 

          8  colleagues.  We've also been joined by Council

 

          9  Member Robert Jackson, a member of the committee.

 

         10                 Council Member Stewart?

 

         11                 COUNCIL MEMBER STEWART:  Thank you,

 

         12  Madam Chair.  Commissioners, you all three seem to

 

         13  think that there's a rush and if so I want to ask

 

         14  you, how many sit down meetings have you had with

 

         15  the proponents of this bill?

 

         16                 COMMISSIONER PERINE:  I haven't

 

         17  counted them all.  I mean we were here pretty late

 

         18  last night.  Certainly in addition to myself,

 

         19  members of my staff have been in multiple meetings.

 

         20  I don't know the number, and there have been

 

         21  obviously other discussions as well.  So there's

 

         22  been lots of discussions, particularly over the last

 

         23  couple weeks.  As I said, we are happy to continue

 

         24  talking.

 

         25                 COUNCIL MEMBER STEWART:  In other

 

 

 

 

 

 

 


                                                            31

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  words, you feel that there's a lot more we can do by

 

          3  coming together and spending time and trying to work

 

          4  out something that is, that can be worked for both

 

          5  sides.

 

          6                 COMMISSIONER FRIEDEN: I think as we

 

          7  said, most of the concerns we previously raised have

 

          8  been effectively addressed and those concerns are

 

          9  concerns that will allow the current version of the

 

         10  bill to be more protective of children and more

 

         11  effective.  There are, however, some remaining

 

         12  concerns which remain unresolved and which we feel

 

         13  would result in a bill that doesn't do the good that

 

         14  it should do and it could have very serious

 

         15  unintended consequences.

 

         16                 COUNCIL MEMBER STEWART:  All right.

 

         17  I agree with that.  As far as liability is

 

         18  concerned, is the city going to be liable when one

 

         19  does not have insurance because as I see it the

 

         20  small home owners cannot get insurance right now and

 

         21  if they can't get insurance with this form of

 

         22  liability that we are creating for them, it means

 

         23  then that they wouldn't have any defense.  Would the

 

         24  city be responsible, would they be liable as a co‑

 

         25  defendant?

 

 

 

 

 

 

 


                                                            32

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COMMISSIONER PERINE:  The city's

 

          3  liability is actually a little different in this

 

          4  bill than the owner's. It's not in our role as an

 

          5  owner that we're actually talking about the city's

 

          6  liability.  The issue with the city's liability in

 

          7  this bill is really the city's role as a regulator,

 

          8  as the entity that has some responsibility for

 

          9  enforcing the law.  In Local Law 38 there was

 

         10  specific language which limited the city's liability

 

         11  in that regard and we're simply suggesting that this

 

         12  law should repeat the same language that that law

 

         13  had.  The liability on the owner's side is really

 

         14  different and yes, I think you've probably heard

 

         15  from the real estate industry about issues related

 

         16  to insurance but I don't want to mix up those two

 

         17  different liability ideas.  I mean what we really

 

         18  talked about here were the issues related to the

 

         19  city's liability as a regulator and what the

 

         20  implications we think in the housing market might be

 

         21  if you start to increase the risk of owners in the

 

         22  housing market.

 

         23                 COUNCIL MEMBER STEWART:  Well, my

 

         24  question really points to the fact that if you don't

 

         25  have enough time to enforce what has to be done and

 

 

 

 

 

 

 


                                                            33

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  there is no insurance by the owner's part, I want to

 

          3  know if the city will be responsible in any form, in

 

          4  that fashion.

 

          5                 COMMISSIONER PERINE:  And as I said,

 

          6  there would be a liability in terms of that would

 

          7  extend to the city in terms of its regulatory role.

 

          8  I don't know that I can really put those two things

 

          9  together.  It's not explicitly associated with the

 

         10  liability of an owner who's not gotten insurance.

 

         11  It's really separate and apart from that.  In

 

         12  addition to, another way to put it.

 

         13                 COUNCIL MEMBER STEWART:  And,

 

         14  Commissioner Gibbs, how many families do you think

 

         15  that will be discriminated against in this fashion?

 

         16  If one knows that they cannot get insurance and the

 

         17  family's trying to get an apartment in that building

 

         18  and they have children, how many you think could be

 

         19  discriminated against?

 

         20                 COMMISSIONER GIBBS:  I think it's

 

         21  obviously very difficult to precisely predict that.

 

         22  I think we should look at the Massachusetts

 

         23  experience in order to try to understand it.  Here

 

         24  the question is around whether or not the way the

 

         25  law is structured creates an incentive for landlords

 

 

 

 

 

 

 


                                                            34

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  to comply and to continue to make housing available

 

          3  or if it creates an incentive for landlords to try

 

          4  to minimize their risk by not allowing children of

 

          5  young age to be in their apartments.  I think that's

 

          6  really where we're focusing, thinking about how we

 

          7  can bet to a resolution that encourages compliance

 

          8  and encourages open access to housing.

 

          9                 Just in terms of those, looking at

 

         10  what are the potential risk numbers, the 97,000

 

         11  families that are living doubled up with incomes

 

         12  less than $20,000 are really the most at risk

 

         13  population for homelessness in the city today.

 

         14  Those are the types of families that we most

 

         15  frequently find coming into shelter and the ones

 

         16  that we believe would be ‑‑ have increased risk of

 

         17  homelessness because of the liability that they now

 

         18  pose as a tenant to those landlords.

 

         19                 COUNCIL MEMBER STEWART:  My next

 

         20  question has to do with training of workers.  The

 

         21  workers that to do the cleanup, to make the changes,

 

         22  there is what we call "presumption" that there's

 

         23  lead.  How long they have to be trained and isn't it

 

         24  a fact that we're going to have people going to be

 

         25  creating an even much more dangerous situation if

 

 

 

 

 

 

 


                                                            35

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  there is a possibility of lead because they might be

 

          3  just doing it because of the cost?

 

          4                 COMMISSIONER PERINE:  I'm not sure if

 

          5  I'm going to answer your question properly.  I mean

 

          6  right now under the existing law HPD, when we carry

 

          7  out emergency repair work, we already use certified

 

          8  trained workers. Owners under the former Local Law

 

          9  38 in certain circumstances weren't required to do

 

         10  so.  This law actually extends that requirement to

 

         11  all work.  Last time when I testified in November we

 

         12  supported that change.  I mean I know we think

 

         13  requiring trained and certified workers is a good

 

         14  thing and is going to help the work that is of a

 

         15  greater scope and standard in this proposed law for

 

         16  that work to be done in an appropriate and safe way.

 

         17    The concern that we have is about really the time

 

         18  that people are given to do that work, which also

 

         19  goes to the effective date of the law.

 

         20                 If you want, if you're serious about

 

         21  wanting people to actually go out and find the

 

         22  appropriate workforce that is EPA certified to do

 

         23  the work properly, there's got to be adequate time

 

         24  frames in place to do that.  I actually don't know

 

         25  how the EPA training is.  I can ‑‑ it's several days

 

 

 

 

 

 

 


                                                            36

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  to a week depending on the level of training.  So

 

          3  that's what it would take to get people certified.

 

          4                 COUNCIL MEMBER STEWART:  But that

 

          5  work, trained workers should be with actual and not

 

          6  just presumption.  If I have work to be done and

 

          7  there's no test that to say that it's actually lead,

 

          8  you're saying that I must have certified workers to

 

          9  do any kind of work even if there's just a

 

         10  presumption?

 

         11                 COMMISSIONER PERINE:  Well, you know,

 

         12  an owner can always test to see if there's lead or

 

         13  not, and if they don't believe ‑‑ if they have a

 

         14  sense that maybe they don't have lead paint, they

 

         15  can just carry out the test and then that would

 

         16  relieve them from the obligations of the law.  That

 

         17  was true under the prior law as well.  So, yes,

 

         18  there is an obligation to carry out lead reduction

 

         19  work with certified trained workers, but owners do

 

         20  have an ability to affirmatively test to see if

 

         21  there is lead and if there isn't, they need go no

 

         22  further.

 

         23                 COUNCIL MEMBER STEWART:  So you're

 

         24  saying that before they can start that work with

 

         25  trained workers, which will cost more, they should

 

 

 

 

 

 

 


                                                            37

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  do a test?

 

          3                 COMMISSIONER PERINE:  Well, certainly

 

          4  if they believe ‑‑ if they have reason to believe

 

          5  that there's no lead paint, sure, they should

 

          6  certainly do that because that would then just

 

          7  relieve them of that burden right away.

 

          8                 COUNCIL MEMBER STEWART:  I'm trying

 

          9  to clear this up because I'm looking at the five or

 

         10  six‑ family owner who has some repairs that need to

 

         11  be done in an apartment, maybe sheetrock, and you

 

         12  may have some dust and based on the law it's

 

         13  presumed that it has lead.  But ‑‑

 

         14                 COMMISSIONER PERINE:  If it's built

 

         15  before 1960.

 

         16                 COUNCIL MEMBER STEWART:  Yes, if it's

 

         17  built before 1960.  But you're saying before he can

 

         18  do that sheetrock, that new work to resurface that

 

         19  wall, he has to do one of two things:  Get it tested

 

         20  and if it says no, it's negative, he can get anybody

 

         21  to do it.  But if it's not tested, it's only

 

         22  presumed he must get someone who is trained to do

 

         23  that?

 

         24                 COMMISSIONER PERINE:  That's right.

 

         25                 COUNCIL MEMBER STEWART:  That's what

 

 

 

 

 

 

 


                                                            38

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  the law says?

 

          3                 COMMISSIONER PERINE:  Yes, that's

 

          4  correct.

 

          5                 COUNCIL MEMBER STEWART:  Contrary to

 

          6  what is happening right now?

 

          7                 COMMISSIONER PERINE:  Yes, it is.  It

 

          8  is a change from Local Law 38, yes.

 

          9                 COUNCIL MEMBER STEWART:  And do you

 

         10  think that throughout the City of New York all the

 

         11  workers, all the carpenters and mason workers and

 

         12  sheetrock workers, you're saying that they all have

 

         13  to be trained now to do that type of repair?

 

         14                 COMMISSIONER PERINE:  I'm saying that

 

         15  when an owner is going to carry out work that is

 

         16  going to affect painted surfaces and if there's a

 

         17  presumption of lead because the building was built

 

         18  before 1960, the owner must use certified trained

 

         19  workers in order to do that work, yes.

 

         20                 COUNCIL MEMBER STEWART:  All right.

 

         21  So you don't think there's going to be a lot of

 

         22  cheating on this? I'm trying to figure out, the

 

         23  amount of building that we have that were built

 

         24  before 1960 ‑‑

 

         25                 COMMISSIONER PERINE:  Yes.

 

 

 

 

 

 

 


                                                            39

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COUNCIL MEMBER STEWART:  ‑‑ There's

 

          3  quite a lot.

 

          4                 COMMISSIONER PERINE:  Yes.

 

          5                 COUNCIL MEMBER STEWART:  And if you

 

          6  have to just do maybe one surface with sheetrock

 

          7  because there might be a hole in that wall, you're

 

          8  saying that if you really just want to do it without

 

          9  getting the test, without going out and getting that

 

         10  test done, you have to go and get a worker who has

 

         11  been trained to do that?

 

         12                 COMMISSIONER PERINE:  Yes, that's

 

         13  correct, and if it's more than a hundred square

 

         14  feet, then they also have to be EPA certified.

 

         15                 COMMISSIONER FRIEDEN:  And if I could

 

         16  just add, if it's more than a hundred square feet

 

         17  they have to notify us in writing in advance at the

 

         18  Department of Health, and because of some of the

 

         19  aspects of how it's written in the statute, we would

 

         20  have an affirmative obligation, we feel potentially,

 

         21  to review the work that's being done, which would be

 

         22  very costly for us.

 

         23                 COUNCIL MEMBER STEWART:  Just the

 

         24  presumption?

 

         25                 COMMISSIONER PERINE:  Yes.  And if I

 

 

 

 

 

 

 


                                                            40

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  could just add, you know, last time when I

 

          3  testified, again, these were things that we actually

 

          4  agreed with in the proposed law.  We think that if

 

          5  you're going to increase the standard of work that

 

          6  people have to carry out it should be done with

 

          7  trained workers and where certified workers are

 

          8  appropriate, then that's what's appropriate.  All

 

          9  we're saying is that people should have a fair

 

         10  amount of time to accomplish that work if we're

 

         11  actually going to be serious about making that a

 

         12  requirement.

 

         13                 COUNCIL MEMBER STEWART:  And once

 

         14  again, you are willing to sit down and make sure

 

         15  that we have an adequate bill, not a bill that

 

         16  creates a vague liability for anybody?  You're

 

         17  willing to sit down to have a true bill that all of

 

         18  us can agree on and all of us can sign onto?

 

         19                 COMMISSIONER PERINE:  Yes, I think,

 

         20  again, that's why we came here today, to try to once

 

         21  again express our comments and indicate the places

 

         22  where we think the proposed legislation could be

 

         23  changed to be made better.

 

         24                 COUNCIL MEMBER STEWART:  Thank you.

 

         25                 CHAIRPERSON PROVENZANO:  Council

 

 

 

 

 

 

 


                                                            41

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  Member Barron.

 

          3                 COUNCIL MEMBER BARRON:  Thank you

 

          4  very much, Madam Chair.  You know, in these chambers

 

          5  I've heard so much incredible testimony in the last

 

          6  couple of days but, Commissioner Gibbs, are you

 

          7  telling us that if we require you to do what you're

 

          8  supposed to do anyway, which is have lead free

 

          9  shelter for homeless families ‑‑ by law in 1986 the

 

         10  Barnes v. Koch (phonetic), by law that's something

 

         11  you have to do anyway, are you saying that if you're

 

         12  required to do this, it's going to create

 

         13  homelessness?  You're blaming us for requiring you

 

         14  to do what you're supposed to do anyway?

 

         15                 COMMISSIONER GIBBS:  I actually ‑‑

 

         16                 COUNCIL MEMBER BARRON:  Let me

 

         17  finish, Commissioner, let me finish, Commissioner.

 

         18  For what you're supposed to do anyway.  So you're

 

         19  telling us that if this happens it's going to create

 

         20  homelessness, as though you're supposed to be

 

         21  putting children in lead contaminated homes in the

 

         22  first place.  You're not supposed to do that anyway.

 

         23  You're already required not to do that.  I just want

 

         24  to get clear because the way you communicated, I

 

         25  just want to be very clear that you're saying

 

 

 

 

 

 

 


                                                            42

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  because you have to do this and discrimination, with

 

          3  insurance which is not supposed to happen either,

 

          4  that all of this, you know, the problem you have

 

          5  with this bill is that it might create more

 

          6  homelessness?

 

          7                 COMMISSIONER GIBBS:  I was actually

 

          8  not speaking about the responsibilities of the

 

          9  Department of Homeless Services to provide shelter,

 

         10  I was speaking about the implications this would

 

         11  have within the real estate market more broadly that

 

         12  might cause landlords to be disinclined to rent

 

         13  apartments to young children.  And I raise this

 

         14  because it's being raised with me and I think it's

 

         15  something that we have to be really concerned about

 

         16  in a city that already has a crisis of homelessness,

 

         17  whether this is going to exacerbate ‑‑

 

         18                 COUNCIL MEMBER BARRON:  I hear what

 

         19  you're saying, but that's a very ‑‑ I'm not as

 

         20  sophisticated as the others, that's a very slick

 

         21  connection because ‑‑ and I say that because, first

 

         22  of all, no one's supposed to discriminate against

 

         23  any child when it comes to homeless, the agency

 

         24  should take them to court, the city should protect

 

         25  against discrimination.  So they can't threaten you

 

 

 

 

 

 

 


                                                            43

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  with discriminating ‑‑ discrimination and then you

 

          3  say we're not going to be for this bill because now

 

          4  the landlord's going to discriminate against the

 

          5  poor, poor children, so if we pass this bill, it's

 

          6  going to make them homeless.  Come on now, that's a

 

          7  stretch.  It is the city's responsibility, your

 

          8  responsibility that no discrimination should happen.

 

          9  So you can't come to the City Council and say

 

         10  because of some discrimination we shouldn't have

 

         11  lead free, lead safe, you know, apartments because

 

         12  landlords are going to discriminate against children

 

         13  so it's going to create more homelessness.

 

         14                 COMMISSIONER GIBBS:  I don't think we

 

         15  disagree with you.  I think we agree with you

 

         16  because we're not trying to change any of the

 

         17  standards of the requirements in this law.  All that

 

         18  we're saying, and we're not suggesting that ‑‑ what

 

         19  we're saying is if you look at the Massachusetts

 

         20  experience we can say this is what happened there.

 

         21  Could that happen here?  It is possible. It's not

 

         22  just a question of discrimination because, you're

 

         23  right, of course, you know, we have to ‑‑

 

         24                 COUNCIL MEMBER BARRON:  That's right.

 

         25                 COMMISSIONER GIBBS:  We have to

 

 

 

 

 

 

                                                            44

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  presume that people are going to act in good faith.

 

          3                 COUNCIL MEMBER BARRON:  Right.

 

          4                 COMMISSIONER GIBBS:  However, we do

 

          5  know, again looking at the Boston experience, that

 

          6  people don't always and the concern that we've got

 

          7  here, we've got an extra problem in New York that

 

          8  they actually didn't have in Boston which is that we

 

          9  have a very significant overcrowding problem in New

 

         10  York City, again, given our very tight housing

 

         11  market.  So in fact owners who have doubled up

 

         12  families in their apartments, it's actually not

 

         13  discrimination if they seek to have that doubled‑ up

 

         14  family removed.  It's actually them enforcing the

 

         15  occupancy standards that ‑‑

 

         16                 COUNCIL MEMBER BARRON:  Yes, but ‑‑

 

         17                 COMMISSIONER GIBBS:  ‑‑ Most owners

 

         18  in New York City kind of turn a blind eye to that.

 

         19  What we're saying is there is a potential.  Again, I

 

         20  believe it's a completely unintended consequence ‑‑

 

         21                 COUNCIL MEMBER BARRON:  It's ‑‑

 

         22                 COMMISSIONER GIBBS:  ‑‑ But there is

 

         23   ‑‑ we are articulating to you ‑‑

 

         24                 COUNCIL MEMBER BARRON:  I know.

 

         25                 COMMISSIONER GIBBS:  ‑‑ That there is

 

 

 

 

 

 

 


                                                            45

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  a potential of an unintended consequence here of

 

          3  making families with young children potentially

 

          4  undesirable for owners.  That's all we're saying.

 

          5                 COUNCIL MEMBER BARRON:  Yes, but I'm

 

          6  saying ‑‑

 

          7                 COMMISSIONER GIBBS:  And given our

 

          8  extreme overcrowding problem ‑‑

 

          9                 COUNCIL MEMBER BARRON:  Right.

 

         10                 COMMISSIONER GIBBS:  ‑‑ And given our

 

         11  extreme tight housing market, this kind of a problem

 

         12  can really be exacerbated.

 

         13                 COUNCIL MEMBER BARRON:  But I really

 

         14  think that that's bogus.  I really do.  I think it's

 

         15  bogus.  I think in the context of saving children

 

         16  from lead poisoning because that's what this whole

 

         17  context is, saving children from lead poisoning

 

         18  which is the priority.  That's bogus, that any kind

 

         19  of trying to manipulate the law and removing

 

         20  children, the city should unequivocally say this

 

         21  will not happen, that we will fight it along with

 

         22  the City Council, along with the Mayor, along with

 

         23  every agency, along with every ‑‑ all the power that

 

         24  we have to protect our children from being lead

 

         25  contaminated poison that any kind of slick way

 

 

 

 

 

 

 


                                                            46

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  landlords or real estate folk put pressure on us, we

 

          3  will not tolerate it.  It's just difficult to come

 

          4  to this hearing and try to attach, you know, this

 

          5  question of homelessness with this lead free bill

 

          6  here.  This lead bill I think is just a little ‑‑ I

 

          7  wouldn't say ‑‑ I don't know whether it's overtly or

 

          8  not so overtly disingenuous to come with that

 

          9  because it gives ‑‑ it would give the public the

 

         10  impression that with this bill being like it is or

 

         11  if we go forth, then we're going to have a problem

 

         12  with homelessness because now landlords or real

 

         13  estate people will not be desirable.  I have

 

         14  problems with that.  I have very serious problems

 

         15  with that.

 

         16                 The perception, because you know,

 

         17  reality is one thing, perception is everything.

 

         18  It's just a perception that you're giving with that

 

         19  testimony, makes it seem that the public will run

 

         20  out here saying oh, man, if we do this it's going to

 

         21  create more homelessness, and that is disingenuous.

 

         22                 COMMISSIONER GIBBS:  Well, it's not

 

         23  disingenuous.  You can disagree and I certainly

 

         24  respect that, but we feel it's our obligation to

 

         25  bring to your attention what we consider can be

 

 

 

 

 

 

 


                                                            47

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  unintended consequences of the bill and something,

 

          3  frankly, that I think can be fairly easily fixed

 

          4                 COUNCIL MEMBER BARRON:  Right.

 

          5                 COMMISSIONER GIBBS:  ‑‑ Without

 

          6  dealing with any of the standards or obligations in

 

          7  this law.  We're not suggesting that any of those

 

          8  things be changed.  We're simply ‑‑ you know, we've

 

          9  simply suggested that some of the tort liability

 

         10  exposure for owners be limited.

 

         11                 COUNCIL MEMBER BARRON:  I bet.

 

         12                 CHAIRPERSON PROVENZANO:  Thank you.

 

         13  Council Member Quinn?

 

         14                 COUNCIL MEMBER QUINN:  Thank you.

 

         15  The Massachusetts law that some comparisons have

 

         16  been made to, that's a full abatement law, isn't it?

 

         17                 COMMISSIONER PERINE:  Yes.

 

         18                 COUNCIL MEMBER QUINN:  So this isn't

 

         19  a full abatement law, correct?

 

         20                 COMMISSIONER PERINE:  And I'm not ‑‑

 

         21  yes, but that's not what drives actually the problem

 

         22  that I was talking about, it's actually the

 

         23  liability issue that is similar in Massachusetts as

 

         24  it is in this proposed bill.

 

         25                 COUNCIL MEMBER QUINN:  But some of ‑‑

 

 

 

 

 

 

 


                                                            48

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COMMISSIONER PERINE:  It's not about

 

          3  the standard of work, it's about the liability

 

          4  exposure.

 

          5                 COUNCIL MEMBER QUINN:  But wouldn't

 

          6  on some level the liability exposure be impacted,

 

          7  maybe not determined, but impacted by whether it was

 

          8  a full abatement proposal or not?  And I thought

 

          9  somebody when they were testifying kind of made

 

         10  financial references to Massachusetts which I think

 

         11  would have some relationship to the level of work

 

         12  required, which the abatement issue ‑‑

 

         13                 COMMISSIONER PERINE:  I actually

 

         14  don't think so because I think the liability can be

 

         15  extreme and it's not necessarily a function of the

 

         16  work that is required.

 

         17                 COUNCIL MEMBER QUINN:  Is there

 

         18  another city or state or county that has actually a

 

         19  program that's more of a ‑‑ similar to what ours

 

         20  would be, where keeping it intact as opposed to

 

         21  complete abatement?  Because then at least the

 

         22  comparison would be apples to apples.  And you're

 

         23  making the point that Massachusetts did this and it

 

         24  caused X, Y and Z problems.  If we had some way that

 

         25  was doing something more similar to what we're

 

 

 

 

 

 

 


                                                            49

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  doing, that would be ‑‑ I would find that more

 

          3  useful information.

 

          4                 COMMISSIONER PERINE:  I mean I don't

 

          5  know. We'd have to look at it.  I'm sure somebody

 

          6  knows that.  I don't know that.  But again, I think

 

          7  the applicability is not around the standard of work

 

          8  required but actually over the liability exposure.

 

          9  So the liability exposure is very similar.

 

         10                 COUNCIL MEMBER QUINN:  I guess, I'm

 

         11  not a trial lawyer ‑‑

 

         12                 COMMISSIONER PERINE:  I'm not any

 

         13  kind of lawyer.

 

         14                 COUNCIL MEMBER QUINN:  So it's great

 

         15  that the two of us are discussing this.  But it

 

         16  seems to me that the standard of work, something

 

         17  like full abatement which is about as broad as you

 

         18  can get, would have an impact on liability exposure.

 

         19    I mean it just seems logical to me that it would.

 

         20                 COMMISSIONER PERINE:  No, I don't

 

         21  think so. I mean it actually would ‑‑ I don't think

 

         22  it would.  I'm actually not quite following what

 

         23  your concern is.  I mean, you know, what the work is

 

         24  that is required is one set of issues.  What the

 

         25  liability exposure for an owner and what he has to

 

 

 

 

 

 

 


                                                            50

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  do in order to I guess defend against cause is

 

          3  really ‑‑ I don't think it's a function of

 

          4  abatement.  I mean I think the difference would be

 

          5  that if you fully abate, then you've limited your

 

          6  liability in that way.  But even with that ‑‑

 

          7                 COUNCIL MEMBER QUINN:  But you've ‑‑

 

          8                 COMMISSIONER PERINE:  But even with

 

          9  that provision there's been problems in Boston.

 

         10                 COUNCIL MEMBER QUINN:  I guess if

 

         11  there is another place, that would be more useful to

 

         12  look at, that's more similar to what we're doing.

 

         13  It just seems to me like if you're saying you have

 

         14  to do this whole much broader universe of work, then

 

         15  if you don't accomplish, which is a higher standard,

 

         16  a broader array of full abatement, that on some

 

         17  level that would translate into a more likelihood of

 

         18  liability in this greater amount of work that would

 

         19  have to be done.  Maybe that's not how it works.

 

         20                 COMMISSIONER PERINE:  I don't think

 

         21  it does. I think it's a little more expensive but I

 

         22  don't think it's necessarily a function of

 

         23  liability.  And again, I'm not suggesting in any way

 

         24  that the standard of requirement of scope of work

 

         25  that is outlined in this proposed law be changed.

 

 

 

 

 

 

 


                                                            51

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  I'm not suggesting that.  We have been supportive of

 

          3  the standard of work and having it carried out with

 

          4  trained workers and all of that.  We're really just

 

          5  trying to ensure, again, that there are not some

 

          6  unintended consequences that if we were in a housing

 

          7  market with a very high vacancy rate, you know,

 

          8  these things maybe could be absorbed within the

 

          9  housing marketplace given the extremely vacancy rate

 

         10  that we have and we know we've got many more people

 

         11  chasing that vacant apartment than there are vacant

 

         12  apartments.  So we know when it is essentially a

 

         13  seller's market.  These constraints I think are

 

         14  potentially going to be exacerbated.

 

         15                 COUNCIL MEMBER QUINN:  That kind of

 

         16  leads me to my next question, actually, which is in

 

         17  Massachusetts, did homelessness increase after their

 

         18  law went into effect?

 

         19                 COMMISSIONER PERINE:  I can't answer

 

         20  that.  I actually don't know.  I mean they've also

 

         21  of course got a very different structure than we do.

 

         22    I mean there's no requirement for shelter as we

 

         23  have in New York, so what you find in most other

 

         24  cities, and Commissioner Gibbs is more expert on

 

         25  this than me, but you don't necessarily see an

 

 

 

 

 

 

 


                                                            52

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  analogous situation to what we have because we take

 

          3  on a fairly open obligation and most other places do

 

          4  not.

 

          5                 COUNCIL MEMBER QUINN:  I mean that ‑‑

 

          6                 COMMISSIONER PERINE:  So they simply

 

          7  limit ‑‑ they simply don't take people into a system

 

          8  in other places so their system is as big as it is

 

          9  and it just stops at where it is and they don't

 

         10  continue to have access they way we do.

 

         11                 COUNCIL MEMBER QUINN:  I think that

 

         12  speaks to what the impact would be on government,

 

         13  but it doesn't, which is a valid point in comparison

 

         14  to Massachusetts, but it doesn't speak to whether

 

         15  the problem was created if you know part of what you

 

         16  guys are saying is that if we do this we're going to

 

         17  create more homelessness and you're drawing

 

         18  comparisons to Massachusetts.  Although Boston or

 

         19  the state may not have been required to house them,

 

         20  it's relevant whether or not their law created

 

         21  homelessness.  Although we may not know it to the

 

         22  exact same number we would in New York City, where

 

         23  Commissioner Gibbs has an obligation to deal with

 

         24  it, I'm sure there are some organizations,

 

         25  governmental or nonprofit, that would have some

 

 

 

 

 

 

 


                                                            53

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  sense of whether homelessness rose after

 

          3  Massachusetts ‑‑

 

          4                 COMMISSIONER PERINE:  Yes ‑‑

 

          5                 COUNCIL MEMBER QUINN:  Even in ‑‑

 

          6  pick a place ‑‑

 

          7                 COMMISSIONER PERINE:  I think it's ‑‑

 

          8                 COUNCIL MEMBER QUINN:  ‑‑ Boston or

 

          9  somewhere.

 

         10                 COMMISSIONER PERINE:  I think it's a

 

         11  fair point.  I think we should remember, however,

 

         12  there is ‑‑ I think the effects in Boston were going

 

         13  to manifest themselves a little differently than

 

         14  they potentially will here.  Again, given the nature

 

         15  of their housing stock versus ours and given the

 

         16  nature of their marketplace, they don't have a

 

         17  significant number of overcrowded doubled‑ up

 

         18  families at this very, very low income level.  I

 

         19  mean in Boston essentially the low income population

 

         20  is almost exclusively concentrated in their public

 

         21  housing stock.  It's very different than in New York

 

         22  which is a much more varied housing stock with ‑‑

 

         23  and a much larger housing stock, obviously, as well.

 

         24    So I guess we're trying to say that is our

 

         25  concern.  Unlike most places in the United States,

 

 

 

 

 

 

 


                                                            54

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  most big cities, we really have a significant number

 

          3  of families who are living really on the edge for

 

          4  whom one last event can then, you know, push them

 

          5  over into homelessness.  I don't believe that was

 

          6  the case ‑‑ I don't believe that's the case in

 

          7  Boston.  So, you know, I think it's different.

 

          8                 COUNCIL MEMBER QUINN:  I mean if

 

          9  those folks are living doubled up or otherwise in a

 

         10  home that's unsafe, they should be out of that home

 

         11  and we need to ‑‑

 

         12                 COMMISSIONER PERINE:  Again, that's

 

         13  not so much the issue.  I mean the issue is will we

 

         14  be encouraging landlords to aggressively enforce the

 

         15  occupancy standards.

 

         16                 COUNCIL MEMBER QUINN:  Did we see in

 

         17  Massachusetts ‑‑ one of the other statements was

 

         18  that we would see landlords basically discriminating

 

         19  against families with children.  Is there data that

 

         20  that happened in Massachusetts?

 

         21                 COMMISSIONER PERINE:  Yes, I think

 

         22  from the State Commission on Human Rights.

 

         23                 COUNCIL MEMBER QUINN:  How much did

 

         24  they see housing discrimination increase?

 

         25                 COMMISSIONER PERINE:  I don't know

 

 

 

 

 

 

 


                                                            55

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  the statistics actually but it has been ‑‑

 

          3                 COUNCIL MEMBER QUINN:  Was it charted

 

          4   ‑‑

 

          5                 COMMISSIONER PERINE:  ‑‑ Reported

 

          6  significantly, yes.

 

          7                 COUNCIL MEMBER QUINN:  And did it

 

          8  track with other trends in the state or was this the

 

          9  only factor that it caused?

 

         10                 COMMISSIONER PERINE:  No, it was ‑‑

 

         11  you know, people saying they were discriminated

 

         12  against because of, in this particular issue.

 

         13                 COUNCIL MEMBER QUINN:  But you don't

 

         14  know how much that went up or ‑‑

 

         15                 COMMISSIONER PERINE:  I don't have

 

         16  the data.

 

         17                 COUNCIL MEMBER QUINN:  Okay.  If you

 

         18  could get that to us, that would be great.

 

         19                 Commissioner Frieden, I was a little

 

         20  confused in part of what you were saying about the

 

         21  time frame issues because I don't think that 101A

 

         22  talks about shortening the Department of Health time

 

         23  frames in response when children are lead poisoned.

 

         24  It seemed to me that they are exactly the same as in

 

         25  the current law of Local Law 50 of 1972.  So I don't

 

 

 

 

 

 

 


                                                            56

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  really ‑‑ Local Law 50 in 1972, how did that change?

 

          3  Which I think were the same in Local Law 38.

 

          4                 COMMISSIONER FRIEDEN:  No, no, Local

 

          5  Law 38, if I understand correctly, the deadline

 

          6  begins when we document the lead paint hazard, and

 

          7  we 're fine with that.  We're fine with having it 16

 

          8  days from then.  The problem is when there's ‑‑ we

 

          9  get electronic reports, 400,000 a year, of lead

 

         10  poisoning levels, of lead paint ‑‑ of blood lead

 

         11  levels.  From that date of that report we have to

 

         12  get access to the apartment.  If we document the

 

         13  lead‑ based paint hazard we have to issue an order

 

         14  to the owner.  We have to serve the order to the

 

         15  owner.  We have to give the owner five days to

 

         16  remediate.  Keep in mind that HUD, under the federal

 

         17  statute for lead poisoned children, gives 15 days

 

         18  and 30 days for controls on the owner's part.  So

 

         19  those are the federal standards.  We have no problem

 

         20  with the 16 days from the documentation of lead‑

 

         21  based paint hazard.  I think really it's a small

 

         22  issue and it would be consistent with what 38 has

 

         23  provided.

 

         24                 COUNCIL MEMBER QUINN:  I mean maybe

 

         25  we could have more discussion after this, but I'm

 

 

 

 

 

 

 


                                                            57

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  not exactly sure, it seems to me, where the change

 

          3  is because I don't really see ‑‑

 

          4                 COMMISSIONER FRIEDEN:  I'm sorry?

 

          5                 COUNCIL MEMBER QUINN:  That's okay.

 

          6  So you're saying the change is in when in confirming

 

          7  the poisoning or ‑‑ because I don't see how the time

 

          8  frames change.

 

          9                 COMMISSIONER FRIEDEN:  Confirming

 

         10  that there's a hazard in the apartment.  About 40%

 

         11  of the kids, we don't have a hazard in the apartment

 

         12  so there's no time frame that arrives there.  We

 

         13  could be in the situation in this circumstance of

 

         14  actually mandating a correction where there's no

 

         15  lead‑ based paint hazard if we can't get access to

 

         16  the apartment for 16 days.

 

         17                 COUNCIL MEMBER QUINN:  Maybe I can

 

         18  look at that with some of the DOH folks afterwards

 

         19  because as I read it there isn't a significant

 

         20  change there in the time frame and that there's a

 

         21  misinterpretation.

 

         22                 COMMISSIONER FRIEDEN:  I've been

 

         23  corrected, that I guess the practice in the past

 

         24  under 38 had been to count the 16 days.

 

         25                 COUNCIL MEMBER QUINN:  What I

 

 

 

 

 

 

 


                                                            58

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  understand Local ‑‑ someone just handed me Local Law

 

          3  38 which says that, "The procedure of certification

 

          4  shall be completed within 16 days from receipt of

 

          5  complaint or inspection or examination, whichever

 

          6  occurs first."

 

          7                 COMMISSIONER FRIEDEN:  Right.  And

 

          8  what I'm being informed is that that in fact has not

 

          9  been the practice because it's simply not possible

 

         10  and would remain not possible under this.  So rather

 

         11  than saying either/or and whichever is first, we

 

         12  would say do it from the date of inspection.  If the

 

         13  Council wanted to discuss standards for how quickly

 

         14  to get in and how we would leave notice if we

 

         15  couldn't get in, those are things we're certainly

 

         16  willing to discuss.  We want to get in quickly.  We

 

         17  want to get it fixed quickly but realistically there

 

         18  are circumstances where we can't get access to the

 

         19  apartment in 16 days so we can't break down the door

 

         20  and look for lead.

 

         21                 COUNCIL MEMBER QUINN:  So your

 

         22  assertion is that this, because I'm now only a

 

         23  little more confused, I apologize, that this does or

 

         24  doesn't change, 101A does or doesn't change the time

 

         25  frames for DOH.  Because it still sounds to me like

 

 

 

 

 

 

 


                                                            59

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  it doesn't.

 

          3                 COMMISSIONER FRIEDEN:  I misstated

 

          4  earlier.  You are correct, Local Law 38, as you

 

          5  read, is similar to the draft of 101A, but in

 

          6  neither case do we feel it's implementable and in

 

          7  both cases it's very different from the HUD federal

 

          8  guideline which are considered the most restrictive

 

          9  in the country, where you have 15 days followed by

 

         10  30 ‑‑ 15 days to do ‑‑ inspect and then 30 days to

 

         11  remediate.

 

         12                 COUNCIL MEMBER QUINN:  But you've

 

         13  existed under Local Law 38 and in fact testified

 

         14  before the committee at other moments that Local Law

 

         15  38 was working.

 

         16                 COMMISSIONER FRIEDEN:  That we were

 

         17  operating under Local Law 38 effectively, but

 

         18  without full adherence to this aspect of the

 

         19  legislation, I gather.  At least that's what I'm

 

         20  being informed at this point.

 

         21                 COUNCIL MEMBER QUINN:  So it doesn't

 

         22  change it from the existing law but now the more

 

         23  that you think about it, you never liked the

 

         24  existing law to begin with, right?  I mean that's

 

         25  basically what you're saying.

 

 

 

 

 

 

 


                                                            60

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COMMISSIONER FRIEDEN:  We think there

 

          3  needs to be improvements to make it workable.

 

          4                 COUNCIL MEMBER QUINN:  So it isn't ‑‑

 

          5  you're not opposed to it because it changes the

 

          6  existing law, you're opposed to it because you

 

          7  didn't like the existing law now more that you think

 

          8  about it?

 

          9                 COMMISSIONER FRIEDEN:  I'll ask

 

         10  Wilfredo Lopez, our general counsel, to ‑‑

 

         11                 COUNCIL MEMBER QUINN:  Oh, no,

 

         12  they're bringing up a lawyer, gentlemen.  Now we're

 

         13  in trouble.

 

         14                 MR. LOPEZ:  I don't have Local Law ‑‑

 

         15                 COUNCIL MEMBER QUINN:  You just have

 

         16  to identify yourself.

 

         17                 MR. LOPEZ:  Wilfredo Lopez, general

 

         18  counsel for HUD, New York City Department of Health

 

         19  and Mental Hygiene.

 

         20                 I don't have Local Law 38 in front of

 

         21  me, but as you read it, I think you read it as from

 

         22  16 days from the date of inspection or examination,

 

         23  whichever occurs first. The proposed law says 16

 

         24  days from the receipt of the elevated blood lead

 

         25  level.  Now that language you just read from Local

 

 

 

 

 

 

 


                                                            61

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  Law 38 could be interpreted in different ways. We

 

          3  agree that it should say 16 days from the date of

 

          4  the inspection.  If you're talking about what does

 

          5  date of the examination mean, that gets a little

 

          6  vaguer, but this proposed law is very clear that

 

          7  it's 16 days from our receipt of the elevated blood

 

          8  level report.  And that is a change and that is

 

          9  certainly not doable.

 

         10                 COUNCIL MEMBER QUINN:  So your

 

         11  problem is that you feel it narrows it to not date

 

         12  of the receipt of the levels or the inspection but

 

         13  just to the date that you get the levels?

 

         14                 MR. LOPEZ:  It starts ‑‑

 

         15                 COUNCIL MEMBER QUINN:  Because this

 

         16  says from receipt of complaint or inspection or

 

         17  examination, whichever occurs first.  So you'd

 

         18  always get the complaint before you would do the

 

         19  inspection or the examination, so it seems like

 

         20  basically it is the same thing.  This just had more

 

         21  language that might have seemed like it gives you

 

         22  more time but it really didn't.

 

         23                 MR. LOPEZ:  Local Law 38 allowed a

 

         24  valid interpretation of this.  The sentence

 

         25  specifically says, "The procedure of certification

 

 

 

 

 

 

 


                                                            62

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  shall be completed within 16 days from receipt of

 

          3  complaint" ‑‑

 

          4                 COUNCIL MEMBER QUINN:  Right.

 

          5                 MR. LOPEZ:  ‑‑ "or inspection or

 

          6  examination, whichever occurs first."  None of those

 

          7  are necessarily report of the blood lead level.

 

          8  That's a different date. Examination of the child,

 

          9  examination of the apartment, examination of both?

 

         10  So we have no problem with it, tight time frame and

 

         11  being held to that time frame.  We do have a problem

 

         12  with a time frames that's unimplementable.  We've

 

         13  been implementing with great effort but very

 

         14  effectively the 16‑ day time frame from the time

 

         15  where we can get access and document the lead

 

         16  hazard, which is our interpretation of Local Law 38.

 

         17                 COUNCIL MEMBER QUINN:  I mean I think

 

         18  obviously that there's some confusion about what has

 

         19  or has not happened here.  That deserves more

 

         20  discussion because, as I said, I was under the

 

         21  impression that that hadn't been changed and

 

         22  certainly we could all agree there's a lack of

 

         23  clarity here and that may not end up being such

 

         24  after further examination that it's a point which

 

         25  the administration may in fact object to and feel a

 

 

 

 

 

 

 


                                                            63

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  need to stand in opposition based on.  I know that's

 

          3  not your only issue.

 

          4                 COMMISSIONER FRIEDEN: But let me also

 

          5  comment that on many other issues, similarly, the

 

          6  issues are not huge. This has an issue of a

 

          7  definition of when the clock starts. We have no

 

          8  problem with the standard.  We have no problem

 

          9  looking at time frames.  We have no problem

 

         10  reporting and being held accountable on those time

 

         11  frames, as long as they're realistic.

 

         12                 Similarly, on the issue of work

 

         13  practices, we don't think it's a major issue.  It

 

         14  just has to do with ensuring that we're not creating

 

         15  a bureaucracy in an administrative requirement that

 

         16  isn't really protecting children.  I do think that

 

         17  we're close on these issues.

 

         18                 COUNCIL MEMBER QUINN:  Just lastly

 

         19  very quickly, on the issue of the age levels, six or

 

         20  seven, I know Commissioner Frieden, you as the

 

         21  Commissioner and a medical doctor, think it's not

 

         22  the right thing to do, but I've heard ‑‑ I must say,

 

         23  you're the only in this process and certainly we've

 

         24  not heard from every doctor in the City of New York,

 

         25  thank God, or we would be here a really, really,

 

 

 

 

 

 

 


                                                            64

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  really long time ‑‑

 

          3                 CHAIRPERSON PROVENZANO:  No, I would

 

          4  have been here a really long time myself.

 

          5                 COUNCIL MEMBER QUINN:  That is very

 

          6  true, yes. Well, thank God for Madeline, that she

 

          7  wouldn't have to be here that long.

 

          8                 But I've heard and I think probably

 

          9  the Committee has heard from more doctors of

 

         10  prominence and most doctors in general who think

 

         11  that that is the medically correct and better thing

 

         12  to do for children.  I mean, Doctor, you know, I

 

         13  just had the testimony of two, for example, in front

 

         14  of me, but there have been many from places, that

 

         15  are some of the leading hospitals that deal with

 

         16  lead poisoning, so ‑‑

 

         17                 COMMISSIONER FRIEDEN:  They're wrong.

 

         18  They're simply and plainly ‑‑

 

         19                 COUNCIL MEMBER QUINN:  You're the

 

         20  only doctor that's right.

 

         21                 COMMISSIONER FRIEDEN:  I'm not the

 

         22  only doctor ‑ The Centers for Disease Control, HUD,

 

         23  the U.S. Guide for ‑‑

 

         24                 COUNCIL MEMBER QUINN:  Well, HUD ‑‑

 

         25                 COMMISSIONER FRIEDEN:  ‑‑ Clinical

 

 

 

 

 

 

 


                                                            65

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  Preventive Task Forces, the Advisory Committee for

 

          3  the Centers for Disease Control and Prevention.  The

 

          4  leading national experts on lead poisoning all agree

 

          5  on this issue.  This is in no way a minority view.

 

          6  This is the standard view of the environmental world

 

          7  and of the public health world.  It's the wrong

 

          8  thing to do to change it.

 

          9                 COUNCIL MEMBER QUINN:  Many of the

 

         10  organizations you just referenced were actually

 

         11  government organizations as opposed to independent

 

         12  doctors.  I mean I have two letters here from six

 

         13  different doctors, some from, ‑‑ affiliated with Mt.

 

         14  Sinai Hospital, has a long record of issues of lead

 

         15  poisoning.  I mean it seems hard for me to imagine

 

         16  that all of these doctors who have no governmental

 

         17  interest in this, you know, HUD, the Centers for

 

         18  Disease Control and others that you mentioned, are

 

         19  all government affiliated, but all of these other

 

         20  independent doctors are wrong.  What interest would

 

         21  they have in misguiding government?

 

         22                 COMMISSIONER FRIEDEN:  I find it

 

         23  puzzling and I'll leave it at that adjective, the

 

         24  insinuation that government, public health

 

         25  physicians would be guided by anything other than

 

 

 

 

 

 

 


                                                            66

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  how to make the most effective public health policy.

 

          3  That's what CDC does and that's what the Health

 

          4  Department does in New York City.  Most kids with

 

          5  lead poisoning are under three.  If you add a group

 

          6  of kids that has a rate that's ten times lower,

 

          7  you're going to be essentially stealing resources

 

          8  away from the kids who need it and giving it to kids

 

          9  who don't need it.

 

         10                 We have 40,000 licensed physicians in

 

         11  New York City.  I'm sure you can get a few,

 

         12  including some very smart ones, to agree with many

 

         13  different types of assertions, but the national

 

         14  guidelines, the state guidelines, the city

 

         15  guidelines, the recommendations are very clear on

 

         16  this issue, there's not ambiguity.

 

         17                 COUNCIL MEMBER QUINN:  I think it's a

 

         18  bold statement to say there's not ambiguity and that

 

         19  all these other doctors are wrong.  And my reference

 

         20  to questioning the governmental public health people

 

         21  is more about the federal ones, because they do work

 

         22  for an administration who I don't necessarily would

 

         23  agree with has the best public health interest of

 

         24  New York City's children in mind, not the doctors

 

         25  affiliated with your department.  Now, you may

 

 

 

 

 

 

 


                                                            67

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  disagree with my perspective on the Bush

 

          3  administration, but I think we could at least agree

 

          4  to disagree.

 

          5                 COMMISSIONER FRIEDEN:  These are

 

          6  panels going back to Jimmy Carter.

 

          7                 COUNCIL MEMBER QUINN:  We could at

 

          8  least agree to disagree on that, and I think it's a

 

          9  bold statement that all of these other medical

 

         10  doctors, and like I said, I've heard from far more

 

         11  that think it's the right thing to do, are wrong.

 

         12  But I guess we'll agree to disagree on that, and I'd

 

         13  love to talk to folks at another point about the

 

         14  other thing that there appears to be confusion or a

 

         15  lack of clarity on.  Thank you, Madam Chair.

 

         16                 CHAIRPERSON PROVENZANO:  Thank you.

 

         17  We have two more Council members to ask questions.

 

         18  Joined by Council Member Gale Brewer.  I am

 

         19  adjourning this meeting at 3:00, even if it's in mid

 

         20  sentence because of the weather. Council Member

 

         21  Comrie.

 

         22                 COUNCIL MEMBER COMRIE:  Thank you,

 

         23  Madam Chair.  I'll try to be quick.

 

         24                 It's a lot of confusion in my mind

 

         25  anyway as to what is now ‑‑ to your best

 

 

 

 

 

 

 


                                                            68

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  articulation, now there's going to be the process to

 

          3  report a violation, to resolve a violation and to

 

          4  correct a violation in two cases.  Number one, if a

 

          5  tenant reports it or, number two, if it's reported

 

          6  by an outside agency, some nongovernmental

 

          7  organization.

 

          8                 COMMISSIONER PERINE:  Are you asking

 

          9  me how it would work under this proposed ‑‑

 

         10                 COUNCIL MEMBER COMRIE:  Yes.

 

         11                 COMMISSIONER PERINE:  ‑‑ This

 

         12  proposed bill?

 

         13                 COUNCIL MEMBER COMRIE:  Yes.

 

         14                 COMMISSIONER PERINE:  Under the

 

         15  proposed bill, I mean the first step ‑‑ I mean let's

 

         16  set aside the issue of when it's triggered, the

 

         17  violation is triggered by their being a lead

 

         18  poisoned child that the Health Department

 

         19  identifies.  Right, that's one way ‑‑

 

         20                 COUNCIL MEMBER COMRIE:  Before you

 

         21  get to the knowing a child is lead poisoned, you

 

         22  have to have a call in to say that an apartment

 

         23  needs to be inspected or are we doing this ‑‑

 

         24                 COMMISSIONER PERINE:  No, no, I'm

 

         25  just saying there's two different broad drivers,

 

 

 

 

 

 

 


                                                            69

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  right, and this is true ‑‑ this was true under Local

 

          3  Law 38.  It's true here as well.  If a child turns

 

          4  up lead poisoned, you know, they go to the doctor

 

          5  and they get a test.  I mean that's going to

 

          6  immediately refer to the Department of Health.  That

 

          7  triggers one way of the apartment getting looked at

 

          8  and a violation being placed.  And we can explain ‑‑

 

          9                 COUNCIL MEMBER COMRIE:  But this law

 

         10  is not increasing the responsibility for doctors to

 

         11  do more testing, is it, or mandating more ‑‑

 

         12                 COMMISSIONER FRIEDEN:  The State has

 

         13  authority over the licensing ‑‑

 

         14                 COUNCIL MEMBER COMRIE:  Licensing,

 

         15  right.

 

         16                 COMMISSIONER FRIEDEN:  ‑‑ Of

 

         17  physicians, so we actually don't have ‑‑

 

         18                 COUNCIL MEMBER COMRIE:  I'm not

 

         19  talking about the people that get reported to you,

 

         20  I'm talking about the other ones.

 

         21                 COMMISSIONER PERINE:  So then the

 

         22  other is when somebody calls and says either I just

 

         23  have peeling paint and then they are questioned; do

 

         24  you have a child under, you know, whatever the

 

         25  requirement of the law is going to be, and if they

 

 

 

 

 

 

 


                                                            70

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  answer in the affirmative, then that potentially is

 

          3  going to trigger both an inspection and potentially

 

          4  a violation if that's found to all be the case.

 

          5                 The other is when somebody calls

 

          6  directly and says I have a child under the

 

          7  appropriate age and I have paint that is not intact

 

          8  or I have dust on my window ‑‑ whatever their

 

          9  problem is and then that's going to also trigger an

 

         10  inspection.  I'm presuming that for the most part

 

         11  that initial entry point into the system would be

 

         12  the same under this proposed law as it is now which

 

         13  is that we continue to encourage people to call 311

 

         14  if they have housing problems of any kind.

 

         15  Certainly if they're concerned about lead paint and

 

         16  they know they have a child, a young child, they

 

         17  should call.

 

         18                 COUNCIL MEMBER COMRIE:  Under that ‑‑

 

         19                 COMMISSIONER PERINE:  We expect that

 

         20  system's going to remain in place obviously and be

 

         21  the main intake for getting inspectors out to see

 

         22  what the problems are.

 

         23                 COUNCIL MEMBER COMRIE:  Maybe I'm not

 

         24  articulating it.  I have a cold so ‑‑ you're saying

 

         25  that once the initial complaint comes in, the time

 

 

 

 

 

 

 


                                                            71

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  for HPD to extend the complaint has been extended

 

          3  from five to ten days.  Is that the initial time

 

          4  frame ‑‑

 

          5                 COMMISSIONER PERINE:  Yes.

 

          6                 COUNCIL MEMBER COMRIE:  ‑‑ That we're

 

          7  talking about?

 

          8                 COMMISSIONER PERINE:  Yes.

 

          9                 COUNCIL MEMBER COMRIE:  And you're

 

         10  saying that that ten day period is not adequate?

 

         11                 COMMISSIONER PERINE:  No.  Actually,

 

         12  we had asked for it to be extended from five and,

 

         13  yes, it was.  The two time frames I guess that we

 

         14  have primary concern about, and this is separate and

 

         15  apart from the effective date, is essentially the

 

         16  time that we get to correct the work, when owners

 

         17  don't act and we have to act under the repair

 

         18  program.

 

         19                 COUNCIL MEMBER COMRIE:  Um‑ hum.

 

         20                 COMMISSIONER PERINE:  You know, in

 

         21  the interest of not taking up the last 15 minutes on

 

         22  this issue completely, because it's a little arcane,

 

         23  is the issue of the proposed laws basically

 

         24  requiring that we go back and reinspect every single

 

         25  apartment that had any kind of a lead violation,

 

 

 

 

 

 

 


                                                            72

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  even when the owner corrected or didn't correct.

 

          3  Even though if he didn't correct we would have gone

 

          4  out and done it through the Emergency Repair

 

          5  Program.  So we just think that's a redundancy.  We

 

          6  think that's something ‑‑

 

          7                 COUNCIL MEMBER COMRIE:  You think

 

          8  it's onerous ‑‑

 

          9                 COMMISSIONER PERINE:  But we think

 

         10  it's something very resolvable because, again, we're

 

         11  not ‑‑

 

         12                 COUNCIL MEMBER COMRIE:  And your

 

         13  resolution for that is just to keep pushing the

 

         14  clock because we're up against the ‑‑

 

         15                 COMMISSIONER PERINE:  Yes, it would

 

         16  simply be to say, you know, it doesn't have to be

 

         17  redundant.  If the owner didn't act, we're going to

 

         18  go in to do the emergency repairs, so you don't

 

         19  really need to have an inspector go first to say,

 

         20  yes, we're really, really sure he didn't act. I mean

 

         21  because we're going to be sending in the emergency

 

         22  repair scoping unit to go and see what the work is

 

         23  and so we would know then anyway, so... I think it

 

         24  meets the same intent of what was being asked.  I

 

         25  think we could just change it a little to make it

 

 

 

 

 

 

 


                                                            73

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  work better.

 

          3                 COUNCIL MEMBER COMRIE:  And that

 

          4  change would be?

 

          5                 COMMISSIONER PERINE:  That if the

 

          6  owner didn't act, there's no need to send a code

 

          7  inspector to verify that fact because we would first

 

          8  just be sending people in to do the emergency repair

 

          9  work.  So we're accomplishing the next step.  You

 

         10  don't need to have a redundant step in the middle of

 

         11  that, but we do need more time to complete the work.

 

         12    Right now it's 30 days in the proposed law and we

 

         13  need 60 days.  Again, half the work that we do now

 

         14  is completed in 60 days.  The other half takes

 

         15  longer than 60 days because we have difficulty

 

         16  accommodating the access needs of the tenants.

 

         17                 COUNCIL MEMBER COMRIE:  And most of

 

         18  those 60 day period with the difficult access needs,

 

         19  how many of those turn out to be valid complaints,

 

         20  do you have a rough idea?

 

         21                 COMMISSIONER PERINE:  These are only

 

         22   ‑‑ I'm only talking about the ones that were valid

 

         23  to begin with.

 

         24                 COUNCIL MEMBER COMRIE:  You're only

 

         25  talking about valid.

 

 

 

 

 

 

 


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          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COMMISSIONER PERINE:  I took out of

 

          3  the equation the ones that didn't ‑‑

 

          4                 COUNCIL MEMBER COMRIE:  In the last

 

          5  calendar year do you know how many complaints were

 

          6  invalid approximately?

 

          7                 COMMISSIONER PERINE:  I think it was

 

          8  about 9,000.  And by invalid, I would simply call

 

          9  them downgraded. I mean it just means that people

 

         10  legitimately had peeling paint and a child under

 

         11  seven, but we went out.  The landlord didn't do what

 

         12  they were supposed to do.  We went out to do the

 

         13  repair.  We tested.  We found it wasn't lead or ‑‑

 

         14                 COUNCIL MEMBER COMRIE:  But they had

 

         15  to

 

         16  actually ‑‑

 

         17                 COMMISSIONER PERINE:  ‑‑ Or we found

 

         18  the work was done.

 

         19                 COUNCIL MEMBER COMRIE:  But you did

 

         20  the 5,000 preliminary inspections?

 

         21                 COMMISSIONER PERINE:  Yes.

 

         22                 COUNCIL MEMBER COMRIE:  And you just

 

         23  found out it was not as serious as they ‑‑

 

         24                 COMMISSIONER PERINE:  It was either

 

         25  not lead or the work had already been done.

 

 

 

 

 

 

 


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          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COUNCIL MEMBER COMRIE:  Okay.  Do you

 

          3  think that if we had more sort of, as the window

 

          4  guard legislation where with the owner every year

 

          5  was required to do a thorough building inspection

 

          6  and a preliminary inspection of each apartment at

 

          7  the beginning of the year of the window guard, it

 

          8  would lessen your inspection at the end of the day?

 

          9                 COMMISSIONER PERINE:  Yes, and I

 

         10  think the proposed law ‑‑ again, in my last

 

         11  testimony in November, the proposed legislation

 

         12  already had a provision in it that kind of mirrored

 

         13  the window guard notice provision.  And we were in

 

         14  agreement with that.  We ‑‑

 

         15                 COUNCIL MEMBER COMRIE:  But that's

 

         16  not in this one today.

 

         17                 COMMISSIONER PERINE:  ‑‑ Supported

 

         18  that.

 

         19                 COUNCIL MEMBER COMRIE:  I'm only ‑‑

 

         20                 COMMISSIONER PERINE:  I think it is.

 

         21  Yes, it is.  It's ‑‑ that remains, that's still in

 

         22  there.  And we were on board with that when it was

 

         23  in there last time. Again, we're just really talking

 

         24  about the time that people are given to carry out

 

         25  the work that we all agree needs to be done.

 

 

 

 

 

 

 


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          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 COUNCIL MEMBER COMRIE:  Well, since

 

          3  I'm against the clock, I'll behave and won't ask any

 

          4  more questions.

 

          5                 How many ‑‑ Council Member Reyna is

 

          6  asking me, how many valid complaints were registered

 

          7  in the last year if you can recall?  If your staff

 

          8  has it handy.

 

          9                 COMMISSIONER PERINE:  I don't know.

 

         10  We'll get that to you.  I'm sure somebody behind me

 

         11  has it.

 

         12                 COUNCIL MEMBER COMRIE:  Has it, I'm

 

         13  sure.

 

         14                 COMMISSIONER PERINE:  We corrected

 

         15  about 3,000 violations ‑‑ about 10,000 violations we

 

         16  corrected, which means over the last three years

 

         17  about 10,000 lead violations that owners didn't

 

         18  correct, we corrected through the Emergency Repair

 

         19  Program.  But we can give you a complete breakdown.

 

         20  It really comes right out of the report that we did

 

         21  for the Council on Local Law 38, so I'm sure we have

 

         22  it.

 

         23                 COUNCIL MEMBER COMRIE:  I'm sure I

 

         24  have it, too, it's just that everything has been

 

         25  compressed so we hadn't ‑‑ and with this snow today

 

 

 

 

 

 

 


                                                            77

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  I didn't want to walk with all these papers to this

 

          3  hearing, so please forgive me for asking, but I just

 

          4  wanted to clarify it for the hearing purposes.

 

          5                 I just have one other question.  How

 

          6  far away do you think we are with getting this

 

          7  resolved?

 

          8                 COMMISSIONER PERINE:  Again, I think

 

          9  we are really ‑‑

 

         10                 COUNCIL MEMBER COMRIE:  To where the

 

         11  city feels most effective in protecting children?

 

         12                 COMMISSIONER PERINE:  I think we are

 

         13  not far away.  I believe that with incorporating the

 

         14  changes that Commissioner Friedan and I have

 

         15  outlined here today, I think that it is resolved and

 

         16  I really hope that some time can be set aside to do

 

         17  that.

 

         18                 COUNCIL MEMBER COMRIE:  I hope that

 

         19  you do get the opportunity between now and the next

 

         20  hearing to sit and meet again and resolve these

 

         21  questions because I really feel that HPD and Health

 

         22  has been working adamantly and with much honor and

 

         23  praise in trying aggressively do lead abatement in

 

         24  the city.  I think that if we have empowered

 

         25  agencies that are given opportunity to do what they

 

 

 

 

 

 

 


                                                            78

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  need to do aggressively, without being forced into

 

          3  situations ‑‑ I know that unhappy employees lead to

 

          4  shoddy work.  Unhappy agencies lead to underreported

 

          5  and bad service.  If we're going to look to the city

 

          6  to be our champions in this we have to try to give

 

          7  them every opportunity to do what they need to do in

 

          8  the way that they feel most comfortable. Thank you,

 

          9  Madam Chair.

 

         10                 CHAIRPERSON PROVENZANO:  Thank you,

 

         11  Council Member Comrie.  Well spoken.  Council Member

 

         12  Perkins, you will be the last questioner.

 

         13                 COUNCIL MEMBER PERKINS:  Thank you

 

         14  very much, Madam Chair.  I'm not going to be very

 

         15  long.  I want to first express my appreciation to

 

         16  the Commissioners for recognizing how far we've come

 

         17  from where we've been and how important it is that

 

         18  we do this bill on behalf of the children of the

 

         19  City of New York.

 

         20                 I want to make sure I'm clear,

 

         21  landlords in the city are presently subject to

 

         22  liability for neglect?

 

         23                 COMMISSIONER PERINE:  There are two

 

         24  different liability concerns and let me try to

 

         25  explain the city's first and I'll ask Harold to help

 

 

 

 

 

 

 


                                                            79

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  me if I need help with this.  If I'm not saying this

 

          3  right, tell me.

 

          4                 Essentially in Local Law 38 there was

 

          5  specific language which protected the city from

 

          6  extreme liability in its role as a regulatory ‑‑ in

 

          7  its regulatory function.  Again, forget the landlord

 

          8  function that we have in some limited capacity.

 

          9  It's just we have an obligation to go out, to send a

 

         10  code inspector, to write a violation, whatever all

 

         11  the steps were.  In Local Law 38 the liability that

 

         12  we had in the performance of those activities was

 

         13  limited.  In this law there is no such language,

 

         14  which means we make a human mistake, somebody loses

 

         15  a piece of paper, somebody missed something,

 

         16  somebody didn't get to the end of their routing and

 

         17  then they got someplace a day later than they

 

         18  expected to be, the city becomes potentially

 

         19  unprotected from a fairly large liability risk.

 

         20  Again, just talking about in its regulatory

 

         21  function.  I'm not talking about in its function as

 

         22  a landlord or owner of property. We believe that

 

         23  risk is unintended and we also don't believe it aids

 

         24  the law in any possible way.  We think that there

 

         25  should be clear standards and time frames in the

 

 

 

 

 

 

 


                                                            80

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  things that we're supposed to do.  We think we

 

          3  should be accountable as we try to be to the Council

 

          4  and to the Mayor in terms of our ability to carry

 

          5  out those functions, but we don't think we should

 

          6  saddle the city with a huge potential liability pool

 

          7  that creates a very significant risk.  So that's one

 

          8  concern.  Did I ‑‑ okay.

 

          9                 MR. SCHULTZ:  I'm sorry, my name is

 

         10  Harold Schultz.  I'm special counsel for the

 

         11  Department of Housing, Preservation and Development.

 

         12

 

         13                 What I would add to that concern is

 

         14  of course of particular concern when we're looking

 

         15  at a statute that has time frames requiring us to do

 

         16  things in times that we basically believe are not

 

         17  really feasible and that does not recognize the

 

         18  nature of the problem that we have when we try to

 

         19  gain access to apartments that we don't control in

 

         20  order to get work done.

 

         21                 COMMISSIONER PERINE:  So these two

 

         22  ideas kind of go together.  If we've got an

 

         23  unrealistic burden, this is really exacerbated by

 

         24  having kind of this unlimited liability concern.  So

 

         25  these two things kind of work against each other in

 

 

 

 

 

 

 


                                                            81

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  this case.  We think both these things need to be

 

          3  adjusted.

 

          4                 COUNCIL MEMBER PERKINS:  I just want

 

          5  to just be clear that under Local Law 1 the city and

 

          6  landlords are subject to liability on the basis of

 

          7  neglect.  Under the present law, not Local Law 38

 

          8  because it doesn't exist ‑‑

 

          9                 MR. SCHULTZ:  Well, actually, that's

 

         10  actually debateable, Councilman, and I'll tell you

 

         11  why.

 

         12                 COUNCIL MEMBER PERKINS:  In terms of

 

         13  city owned properties.

 

         14                 MR. SCHULTZ:  Well, in terms of city

 

         15  regulatory activity, the courts in general have held

 

         16  the city not liable.  Our concern right now,

 

         17  frankly, is the issue of Local Law 38.  Local Law 38

 

         18  had language that specifically held the city not

 

         19  liable in its regulatory context, we are now

 

         20  concerned that replacement statute, which once again

 

         21  doesn't have that, might be interpreted by a court,

 

         22  possibly interpreted by a court as a decision by the

 

         23  Council to remove what we would have thought was the

 

         24  natural liability ‑‑ the natural immunity of the

 

         25  city from regulatory liability.  So that's why it's

 

 

 

 

 

 

 


                                                            82

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  particularly important in this case.

 

          3                 COUNCIL MEMBER PERKINS:  And with

 

          4  respect to the landlords, private owners?

 

          5                 MR. SCHULTZ:  Landlords had liability

 

          6  under the prior statute, although I would say that

 

          7  not during the entire time of that prior statute.

 

          8  It required a subsequent decision of the court, the

 

          9  Wave Crest decision, which then imposed liability.

 

         10  That happened relatively late in the history of

 

         11  Local Law 1 and was not that big an issue and was

 

         12  pretty much when Local Law 38 came into effect did

 

         13  change that, but in the early history of Local Law

 

         14  1, Wave Crest was not the standard.

 

         15                 COUNCIL MEMBER PERKINS:  I guess the

 

         16  big issue that has been coming up today, especially

 

         17  as evidenced by the first time appearance of the

 

         18  Commissioner for Homeless Services, is the

 

         19  discrimination issue.  I was wondering, we're

 

         20  already under liability framework.  Are you seeing

 

         21  evidence of discrimination over these last X number

 

         22  of years because of the fact that landlords, whether

 

         23  it be the city or, more importantly, private

 

         24  landlords are discriminating?

 

         25                 COMMISSIONER PERINE:  I don't think

 

 

 

 

 

 

 


                                                            83

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  we would say that we've seen something in the short

 

          3  term and I don't think we could see something in the

 

          4  short term for a couple of reasons.

 

          5                 COUNCIL MEMBER PERKINS:  Because

 

          6  Local Law 1 is much longer ‑‑ has been around for a

 

          7  while.

 

          8                 COMMISSIONER PERINE:  Right.  But

 

          9  again, we spent the last three years with Local Law

 

         10  38, so I think one of the points of confusion right

 

         11  now is that I think there's a lot of confusion out

 

         12  there, frankly, in the industry in terms of what

 

         13  kind of standards they're supposed to be meeting

 

         14  right now.  And this is actually not a good thing

 

         15  from anybody's point of view.  I think that we have

 

         16  a situation where people may not be sure, are they

 

         17  following Local Law 38 rules, are they following

 

         18  Local Law 1, and while it may be clear from a

 

         19  lawyer's perspective which law is applicable right

 

         20  now, I think to the average person out there who's

 

         21  trying to make repairs or carry out work in their

 

         22  buildings, I don't think it's so clear to them.  So

 

         23  I don't think the full ‑‑ I don't think the impact

 

         24  of Local Law 1 provisions is really being felt in

 

         25  the industry right now.  Again, just because of the

 

 

 

 

 

 

 


                                                            84

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  oddity of the way that Local Law 38 was rescinded, I

 

          3  think there's a lot of owners out there who probably

 

          4  still don't fully understand that.

 

          5  I certainly think that makes me certainly agree with

 

          6  you that it's important to pass another bill

 

          7  because, regardless of what we might believe is the

 

          8  law that people should be following today, I think

 

          9  there's a certain amount of confusion out there and

 

         10  the quicker we can resolve that confusion with a law

 

         11  that we can all begin explaining to people and

 

         12  reaching out to people and making sure that they

 

         13  understand what the obligations are, the better off

 

         14  we all will be.

 

         15                 COUNCIL MEMBER PERKINS:  But, again,

 

         16  to your knowledge we are not experiencing

 

         17  discrimination by virtue of the liabilities that are

 

         18  presently imposed on landlords?

 

         19                 COMMISSIONER PERINE:  No, and we

 

         20  didn't suggest that in my testimony.

 

         21                 COUNCIL MEMBER PERKINS:  I don't

 

         22  think you expressed it that implicitly, but by

 

         23  making reference to Massachusetts, it suggested that

 

         24  if you maintain liability, that there will be the

 

         25  Massachusetts experience in New York City in terms

 

 

 

 

 

 

 


                                                            85

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  of discrimination against families that have

 

          3  children.  So I just wanted to make sure that it was

 

          4  clear that we already have that ‑‑ we're already

 

          5  operating in that context and we're not seeing that

 

          6  kind of evidence yet.

 

          7                 COMMISSIONER FRIEDEN:  I would just

 

          8  reiterate once again that the Wave Crest standard

 

          9  came along late in the history of Local Law 1, and

 

         10  on top of that the confusion with regard to ‑‑

 

         11                 COUNCIL MEMBER PERKINS:  How late was

 

         12  that, do you know?

 

         13                 COMMISSIONER FRIEDEN:  I think it was

 

         14  not until like the early to mid '90s that you had

 

         15  the Wave Crest standard. I have to check the date.

 

         16  But Local Law 1 was passed in 1982.  It was not the

 

         17  standard throughout most of the '80s and I believe

 

         18  the early '90s.

 

         19                 COUNCIL MEMBER PERKINS:  How long do

 

         20  you think it takes before discrimination becomes

 

         21  apparent in the housing?

 

         22                 COMMISSIONER PERINE:  No, it's just

 

         23  that we're saying that that wasn't the standard.

 

         24  You know, things changed after that decision.  That

 

         25  was the issue.

 

 

 

 

 

 

 


                                                            86

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2                 Our only point, you know, is this

 

          3  what we are saying with some sort of crystal ball

 

          4  certainty is going to happen?  No.  What we're

 

          5  saying is this is what happened in Massachusetts.

 

          6  We're saying we have some intrinsic issues in our

 

          7  housing marketplace in New York City that can make

 

          8  us vulnerable to these kinds of things.  It is a

 

          9  seller's market in New York.  It's a very low

 

         10  vacancy rate.  We have more people chasing

 

         11  apartments than apartments available for them.  So

 

         12  we know we've got some of the circumstances that

 

         13  make people seeking housing in New York,

 

         14  particularly lower income people, more vulnerable to

 

         15  problems in finding those apartments.  We know that

 

         16  that's the case now.  So all we're saying is that

 

         17  this is a concern, we should be aware of it. We

 

         18  believe that there are some fairly de minimis things

 

         19  that we could do to change this law in order to keep

 

         20  all the same standards in place, accomplish the same

 

         21  objectives that I think we all are trying to

 

         22  accomplish and minimize the unintended consequences.

 

         23                 COUNCIL MEMBER PERKINS:  Just so I'm

 

         24  clear, should we be protecting landlords who

 

         25  discriminate against families with children to avoid

 

 

 

 

 

 

 


                                                            87

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  liability?

 

          3                 COMMISSIONER PERINE:  No, of course

 

          4  not.

 

          5                 COUNCIL MEMBER PERKINS:  Okay.  So we

 

          6  shouldn't be crafting legislation that says

 

          7  eliminate liability to eliminate discrimination.

 

          8                 COMMISSIONER PERINE:  What we should

 

          9  be doing is crafting legislation that gives

 

         10  landlords an incentive to meet the standards that

 

         11  are carried out, that are provided for in the law.

 

         12                 COUNCIL MEMBER PERKINS:  Okay.  We

 

         13  can probably do that and maintain liability as well

 

         14  because I would expect that the same landlord that

 

         15  discriminates is probably the kind of landlord that

 

         16  we would want to be liable for negligence.  It seems

 

         17  that those types of values of being a discriminator

 

         18  and being one who is purposefully negligent are

 

         19  about the same character.  We don't want ‑‑ do you

 

         20  understand?

 

         21                 COMMISSIONER PERINE:  Yes, I do.  I'm

 

         22  not sure I agree with that.

 

         23                 COUNCIL MEMBER PERKINS:  Okay.  Let

 

         24  me ask you, Dr. Friedan.  I want to be clear.  You

 

         25  in your presentation make note of the problem of the

 

 

 

 

 

 

 


                                                            88

 

 

          1  COMMITTEE ON HOUSING AND BUILDINGS

 

          2  seven and the six.  Am I correct?  It's my

 

          3  understanding that we've come to some accommodation,

 

          4  mutually acceptable accommodation to some extent

 

          5  crafted by you or the administration side and am I

 

          6  correct in that regard?  Because I was wondering why

 

          7  it was still being represented?

 

          8                 COMMISSIONER FRIEDEN:  The current

 

          9  draft is something that I stated in my testimony is

 

         10  a significant improvement. It's not from our view

 

         11  ideal ‑‑

 

         12                 COUNCIL MEMBER PERKINS:  I want to be

 

         13  specific about the seven and the six.

 

         14                 COMMISSIONER FRIEDEN:  We can live

 

         15  with the current draft of seven and six, yes.

 

         16                 COUNCIL MEMBER PERKINS:  Okay.  Thank

 

         17  you very much.  Because you raised that again and

 

         18  cited the 15% and the other, you know ‑‑

 

         19                 COMMISSIONER FRIEDEN:  I just wanted

 

         20  to make clear why we're concerned about it, that's

 

         21  all.

 

         22                 COUNCIL MEMBER PERKINS:  That's a

 

         23  fight that's been ‑‑ that's off the table.  So if

 

         24  you put it on the table, it might make people who

 

         25  are concerned about that think that that has not

 

 

 

 

 

 

 


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          2  been addressed.  I know that you were generous in

 

          3  saying we've addressed some things together but you

 

          4  brought that one back up as if it wasn't addressed

 

          5  and that has budgetary implications and other types

 

          6  of implications.  In fact, the decision about it

 

          7  basically put it in your court to determine whether

 

          8  or not it was appropriate after one year of being in

 

          9  implementation.  Am I correct?

 

         10                 COMMISSIONER FRIEDEN:  At the Board

 

         11  of Health, actually.

 

         12                 COUNCIL MEMBER PERKINS:  Yes.  Okay.

 

         13  So we just want to make sure the record's clear.

 

         14                 Now, assuming that such

 

         15  technicalities as that and others that you've cited

 

         16  this morning in your testimony were mutually

 

         17  resolved with perhaps the exception of the

 

         18  liabilities or with regard to the city and with

 

         19  regard to the private landlords, do you think that

 

         20  you would be ‑‑ we would be able to be agreeable on

 

         21  a piece of legislation?

 

         22                 CHAIRPERSON PROVENZANO:  Let me just

 

         23  interject.  I'm very serious about this.  Another

 

         24  five minutes and we're finished here because I have

 

         25  people that have to get home to the Bronx, Brooklyn,

 

 

 

 

 

 

 


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          2  and I'm very concerned about people's safety.  So

 

          3  Queens, you're only over the bridge.  So five

 

          4  minutes and we're out of here.

 

          5                 COMMISSIONER PERINE:  I don't think

 

          6  we can make that statement because I think that for

 

          7  us the liability issues are very much intrinsically

 

          8  integrated into the issues, particularly around time

 

          9  frames and the obligations around time frames.  I

 

         10  would reiterate that I believe that the gaps are not

 

         11  significant and that we could probably talk through

 

         12  some of these things and hopefully reach a

 

         13  resolution.

 

         14                 COUNCIL MEMBER PERKINS:  Putting

 

         15  liability to the side, and we did to some credit,

 

         16  talk through those things, would you still ‑‑ would

 

         17  you be able to support the bill with liability,

 

         18  without giving the city freedom from liability?

 

         19                 COMMISSIONER PERINE:  We cannot put

 

         20  that aside.  We cannot put that aside.  That would

 

         21  be ‑‑ we believe that would be irresponsible.  We

 

         22  couldn't do that.

 

         23                 COUNCIL MEMBER PERKINS:  Okay.  Dr.

 

         24  Friedan?

 

         25                 COMMISSIONER PERINE:  But we

 

 

 

 

 

 

 


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          2  certainly can talk about it.

 

          3                 CHAIRPERSON PROVENZANO:  Bill, I'm

 

          4  going to end this.  I'm sure we'll have another

 

          5  hearing.  You know, I'm ‑‑

 

          6                 COUNCIL MEMBER PERKINS:  This is my

 

          7  last question.  I'm not going to ‑‑

 

          8                 CHAIRPERSON PROVENZANO:  Is it ‑‑

 

          9                 COUNCIL MEMBER PERKINS:  I'm just

 

         10  asking for an answer to this one last question.

 

         11                 (Commotion)

 

         12                 CHAIRPERSON PROVENZANO:  Excuse me.

 

         13  You can be removed from this chamber.  Go ahead.

 

         14                 COUNCIL MEMBER PERKINS:  Dr. Frieden,

 

         15  I just wanted to get your response to the question.

 

         16                 COMMISSIONER FRIEDEN:  The response

 

         17  will be from the administration when I see a new

 

         18  version of the bill in addition to the liability

 

         19  concerns, the chewable surface issue I outlined in

 

         20  some detail on the other issues I think are issues

 

         21  that need to be addressed.  I do feel we're very

 

         22  close and that we do have a mutual goal coming up

 

         23  with an implementable and effective piece of

 

         24  legislation.

 

         25                 COUNCIL MEMBER PERKINS:  Thank you.

 

 

 

 

 

 

 


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          2                 CHAIRPERSON PROVENZANO:  Save it for

 

          3  next week.

 

          4                 I have four whatever here, people

 

          5  that have signed up.  You will be put on the top of

 

          6  the list.  I can assure you there will be another

 

          7  hearing.  I apologize, but I have folks getting very

 

          8  nervous here.  Proposed Intro. No. 101A is laid

 

          9  over.  There was a lot of confusion.  Folks worked

 

         10  very late into the night and that's why some of the

 

         11  issues are not clear.  But in another few days we'll

 

         12  be able to take a better look at the new bill.

 

         13  Thank you all for coming.  Safe home.  This hearing

 

         14  is adjourned.

 

         15                 (Hearing concluded at 3:05 p.m.)

 

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          2              CERTIFICATION

 

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          5     STATE OF NEW YORK   )

 

          6     COUNTY OF NEW YORK  )

 

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          9                 I, PAT IARKOWSKI, do hereby certify

 

         10  that the foregoing is a true and accurate transcript

 

         11  of the within proceeding.

 

         12                 I further certify that I am not

 

         13  related to any of the parties to this action by

 

         14  blood or marriage, and that I am in no way

 

         15  interested in the outcome of this matter.

 

         16                 IN WITNESS WHEREOF, I have hereunto

 

         17  set my hand this 5th day of December 2003.

 

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         23                          PAT IARKOWSKI

 

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          9            I, PAT IARKOWSKI, do hereby certify the

 

         10  aforesaid to be a true and accurate copy of the

 

         11  transcription of the audio tapes of this hearing.

 

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                              PAT IARKOWSKI

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