HB 0937

1	A bill to be entitled
2	An act relating to the Florida Childhood Lead Poisoning
3	Reduction Act; providing a popular name; creating the
4	"Florida Childhood Lead Poisoning Reduction Act";
5	providing legislative findings; providing legislative
6	purposes of the act; providing for a Director of Lead
7	Poisoning Prevention; providing duties and
8	responsibilities of the director; providing for a Lead
9	Poisoning Prevention Coordinating Council; providing
10	membership of the council; providing for the establishment
11	of a statewide program for the prevention, screening,
12	diagnosis, and treatment of lead poisoning; providing for
13	a Lead Poisoning Prevention Commission; providing for
14	membership and duties of the commission; providing
15	criteria for lead-free and lead-safe property status;
16	providing notice requirements when an owner of an affected
17	property intends to make repairs to or perform specified
18	maintenance work on an affected property; providing
19	requirements and procedures with respect to access to and
20	vacation of affected properties; providing for voluntary
21	inspection of affected properties; requiring the Lead
22	Poisoning Prevention Commission to develop a proposal for
23	the implementation of mandatory inspections of all
24	affected properties or to develop alternative measures of
25	enforcement and penalties to ensure compliance with lead-
26	free or lead-safe standards by a specified date; providing
27	for involuntary inspections under specified circumstances;
28	providing for inspection reports; providing for
29	accreditation of persons performing lead hazard reduction
30	activities; providing for accreditation of persons
31	performing inspections; providing for duration of
32	accreditation; providing registration fees for persons
33	performing lead hazard abatement and persons performing
34	inspections; providing for deposit of fees; providing for
35	enforcement; providing requirements for immunity from
36	civil liability for injuries or damages resulting from the
37	ingestion of lead; providing exceptions to immunity;
38	providing requirements with respect to documentation and
39	notification of injury; providing procedure and
40	requirements with respect to a qualified offer; providing
41	for maximum amounts payable under a qualified offer;
42	providing for certification of compliance with respect to
43	a qualified offer; providing for presumption of negligence
44	in actions against property owners not in compliance;
45	providing for enforcement of the act; providing for
46	reporting of enforcement actions; providing for
47	receivership of properties not meeting certain standards;
48	providing for injunctive relief; providing for notice of
49	intent to seek injunctive relief; providing for recovery
50	of costs and attorney's fees; prohibiting retaliatory
51	evictions; defining "retaliatory action"; providing for
52	relief for retaliatory eviction and retaliatory action;
53	providing for the establishment of a statewide
54	comprehensive educational program; providing for a public
55	information initiative; providing for distribution of
56	specified literature; providing for a Lead Poisoning
57	Prevention for Properties seminar; requiring the
58	establishment of a program for early identification of
59	persons at risk of elevated levels of lead in the blood;
60	providing for screening of children; providing for
61	screening priorities; providing for the maintenance of
62	records of screenings; providing for reporting of cases of
63	lead poisoning; providing definitions; providing an
64	effective date.
65
66	Be It Enacted by the Legislature of the State of Florida:
67
68	Section 1.  Popular name.--This act shall be known by the
69	popular name, the "Florida Childhood Lead Poisoning Reduction
70	Act."
71	Section 2.  Legislative findings.--
72	(1)  Nearly 300,000 American children may have levels of
73	lead in their blood in excess of 10 micrograms per deciliter
74	((g/dL).  Unless prevented or treated, elevated blood lead levels
75	in egregious cases may result in impairment of the ability to
76	think, concentrate, and learn.
77	(2)  A significant cause of lead poisoning in children is
78	the ingestion of lead particles from deteriorating or abraded
79	lead-based paint from older, poorly maintained residences.
80	(3)  The health and development of these children and many
81	others are endangered by chipping or peeling lead-based paint or
82	excessive amounts of lead-contaminated dust in poorly maintained
83	homes.
84	(4)  Ninety percent of lead-based paint still remaining in
85	occupied housing exists in units built before 1960, with the
86	remainder in units built before 1978.
87	(5)  The dangers posed by lead-based paint can be
88	substantially reduced and largely eliminated by taking measures
89	to prevent paint deterioration and limiting children's exposure
90	to paint chips and lead dust.
91	(6)  The deterioration of lead-based paint in older
92	residences results in increased expenses each year for the state
93	in the form of special education and other education expenses,
94	medical care for lead-poisoned children, and expenditures for
95	delinquent youth and others needing special supervision.
96	(7)  Older housing units remain an important part of the
97	makeup of the state's housing, particularly for those of modest
98	or limited incomes.
99	(8)  The possibility of liability exposure among landlords
100	has led many to abandon older properties or to place them in
101	"shell corporations" in order to avoid personal liability.
102	(9)  The incidence of childhood lead poisoning can be
103	reduced substantially without significant additional cost to the
104	state by creating appropriate incentives for property owners to
105	make their properties lead free or lead safe and by targeting
106	existing state resources used to prevent childhood lead
107	poisoning more effectively.
108	(10)  Knowledge of lead-based paint hazards, their control,
109	mitigation, abatement, and risk avoidance is not sufficiently
110	widespread, especially outside urban areas.
111	(11)  A majority of Florida children living in
112	circumstances suggesting a significant possibility that they
113	have elevated levels of lead in their blood are not currently
114	tested for the presence of such elevated blood lead levels.
115	(12)  Early detection of elevated blood levels in children
116	allows treatment and mitigation of the conditions resulting in
117	further elevation of blood lead levels and often can prevent
118	further harm.
119	Section 3.  Legislative purposes.--To promote the
120	elimination of childhood lead poisoning in the state, the
121	purposes of this act are:
122	(1)  To significantly reduce the incidence of childhood
123	lead poisoning in the state.
124	(2)  To increase the supply of affordable rental housing in
125	the state in which measures have been taken to reduce
126	substantially the risk of childhood lead poisoning.
127	(3)  To provide protection from potentially ruinous tort
128	actions for those landlords who undertake specified lead hazard
129	reduction measures.
130	(4)  To provide a mechanism to facilitate prompt payment of
131	medical and rehabilitation expenses and relocation costs for
132	those remaining individuals who are affected by childhood lead
133	poisoning.
134	(5)  To improve public awareness of lead safety issues and
135	to educate both property owners and tenants about practices that
136	can reduce the incidence of lead poisoning.
137	(6)  To encourage the testing of children likely to suffer
138	the consequences of lead poisoning so that prompt diagnosis and
139	treatment, as well as the prevention of harm, are possible.
140	Section 4.  Director of Lead Poisoning Prevention; Lead
141	Poisoning Prevention Coordinating Council; Program for
142	Prevention of Lead Poisoning; Lead Poisoning Prevention
143	Commission.--
144	(1)  The Secretary of the Department of Health shall
145	appoint a Director of Lead Poisoning Prevention who shall serve
146	at the pleasure of the secretary.  The director shall be
147	responsible, subject to the authority of the secretary, for
148	carrying out and administering all programs created pursuant to
149	the provisions of this act. To the extent necessary, the
150	director shall designate which local government officials shall
151	assist him or her in carrying out these duties. The director may
152	contract with any agency or agencies, individuals, or groups for
153	the provision of necessary services, subject to appropriation,
154	and shall adopt and from time to time amend such rules as may be
155	necessary; provided, however, that such rules, regulations or
156	amendments thereto shall be filed with the appropriate
157	legislative committees responsible for health matters and
158	housing matters at least 30 days before the effective date of
159	such rules, regulations, or amendments.
160	(2)  The director shall chair the Lead Poisoning Prevention
161	Coordinating Council. The council shall include a designee of
162	the Secretary of the Department of Community Affairs and a
163	designee of the Secretary of the Department of Environmental
164	Protection.
165	(3)  Subject to appropriation, the director, working in
166	coordination with the Lead Poisoning Prevention Council, shall
167	establish a statewide program for the prevention, screening,
168	diagnosis, and treatment of lead poisoning, including
169	elimination of the sources of such poisoning, through such
170	research, educational, epidemiologic, and clinical activities as
171	may be necessary.
172	(4)  The Lead Poisoning Prevention Commission is hereby
173	created.
174	(a)  The duties of the commission are to:
175	1.  To report to the Governor, the President of the Senate,
176	and the Speaker of the House of Representatives in writing by
177	October 1, 2005, recommending legislation providing both
178	additional incentives for all affected property owners to bring
179	their premises into compliance with the lead safe standards
180	outlined in section 5(2) and additional means of enforcement and
181	penalties for those property owners who fail to achieve
182	compliance. The incentives to be considered should include,
183	among others, local property tax credits and revolving loan
184	funds.
185	2.  Study and collect information on the effectiveness of
186	this act in fulfilling its legislative purposes as defined in
187	section 3.
188	3.  Make policy recommendations, in addition to those
189	mandated by subparagraph 1., regarding how best to achieve the
190	legislative purposes of this act as set forth in section 3.
191	4.  Consult with the responsible departments of state
192	government and applicable state agencies on the implementation
193	of this act.
194	5.  Prepare and submit a report by October 1, 2005, to the
195	Governor, the President of the Senate, and the Speaker of the
196	House of Representatives on the results of implementing this
197	act.
198	(b)  The commission shall consist of 9 members. The
199	membership shall include:
200	1.  The Director of Lead Poisoning Prevention.
201	2.  The Secretary of Community Affairs or his or her
202	designee.
203	3.  One member of the Senate, appointed by the President of
204	the Senate.
205	4.  One member of the House of Representatives, appointed
206	by the Speaker of the House of Representatives.
207	5.  Five members appointed by the Governor, including:
208	a.  A child advocate.
209	b.  A health care provider.
210	c.  A representative of local government.
211	d.  Two owners of rental property in the state.
212	(c)  The commission shall be chaired by Director of Lead
213	Poisoning Prevention.
214	(d)  Members of the commission shall serve without
215	compensation.
216	Section 5.  Requirements for lead-free and lead-safe
217	property status.--
218	(1)  An affected property is "lead free" if:
219	(a)  The affected property was constructed after 1978; or
220	(b)  The owner of the affected property submits to the
221	director or the director's designee for the jurisdiction in
222	which such property is located an inspection report which
223	indicates that the affected property has been tested for the
224	presence of lead in accordance with standards and procedures
225	established by the regulations promulgated by the director and
226	states that:
227	1.  All interior surfaces of the affected property are lead
228	free; and
229	2.a.  All exterior painted surfaces of the affected
230	property that were chipping, peeling, or flaking have been
231	restored with  paint that is not lead-based paint; or
232	b.  No exterior painted surfaces of the affected property
233	are chipping, peeling, or flaking.
234	(2)  An affected property is "lead safe" if the following
235	treatments to reduce lead-based paint hazards have been
236	completed by someone accredited under section 7 and in
237	compliance with the regulations established by the director:
238	(a)  Visual review of all exterior and interior painted
239	surfaces;
240	(b)  Removal and repainting of chipping, peeling, or
241	flaking paint on exterior and interior painted surfaces;
242	(c)  Stabilization and repainting of any interior or
243	exterior painted surfaces which have lead-based paint hazards;
244	(d)  Repair of any structural defect that is causing the
245	paint to chip, peel, or flake that the owner of the affected
246	property has knowledge of or, with the exercise of reasonable
247	care, should have knowledge of;
248	(e)  Stripping and repainting, replacing, or encapsulating
249	of all interior windowsills and window troughs with vinyl,
250	metal, or any other durable material which renders the surface
251	smooth and cleanable;
252	(f)  Installing caps of vinyl, aluminum, or any other
253	material in a manner and under conditions approved by the
254	director in all window wells in order to make the window wells
255	smooth and cleanable;
256	(g)  Fixing the top sash of all windows in place in order
257	to eliminate the friction caused by movement of the top sash,
258	except for a treated or replacement window that is free of lead-
259	based paint on its friction surfaces;
260	(h)  Rehanging all doors as necessary to prevent the
261	rubbing together of a lead-painted surface with another surface;
262	(i)  Making all bare floors smooth and cleanable;
263	(j)  Ensuring that all kitchen and bathroom floors are
264	overlaid with a smooth, water-resistant covering; and
265	(k)  HEPA-vacuuming and washing of the interior of the
266	affected property with high phosphate detergent or its
267	equivalent, as determined by the director.
268	(3)(a)  Whenever an owner of an affected property intends
269	to make repairs or perform maintenance work that will disturb
270	the paint on interior surfaces of an affected property, the
271	owner shall give any tenant in such affected property at least
272	48 hours' written advance notice and shall make reasonable
273	efforts to ensure that all persons who are not persons at risk
274	are not present in the area where work is performed and that all
275	persons at risk are removed from the affected property when the
276	work is performed.
277	(b)  A tenant shall allow access to an affected property,
278	at reasonable times, to the owner to perform any work required
279	under this act.
280	(c)  If a tenant must vacate an affected property for a
281	period of 24 hours or more in order to allow an owner to perform
282	work that will disturb the paint on interior surfaces, the owner
283	shall pay the reasonable expenses that the tenant incurs
284	directly related to the required relocation.
285	(d)  If an owner has made all reasonable efforts to cause
286	the tenant to temporarily vacate an affected property in order
287	to perform work that will disturb the paint on interior
288	surfaces, and the tenant refuses to vacate the affected
289	property, the owner shall not be liable for any damages arising
290	from the tenant's refusal to vacate.
291	(e)  If an owner has made all reasonable efforts to gain
292	access to an affected property in order to perform any work
293	required under this act, and the tenant refuses to allow access,
294	even after receiving reasonable advance notice of the need for
295	access, the owner shall not be liable for any damages arising
296	from the tenant's refusal to allow access.
297	Section 6.  Voluntary inspection; mandatory inspection.--
298	(1)  An owner of an affected property at any time after the
299	effective date of this act may request that the Director of Lead
300	Poisoning Prevention or his or her local designee inspect an
301	affected property to determine whether it complies with the
302	requirements for lead-free property status as specified in
303	section 5(1) or the requirements for lead-safe property status
304	as specified in section 5(2). Such inspection shall be completed
305	within 30 days after the owner's request.
306	(2)  Any affected property certified as either lead-free or
307	lead-safe following a voluntary inspection pursuant to
308	subsection (1) shall be:
309	(a)  Entitled to the liability protection provisions of
310	section 8.
311	(b)  Deemed in compliance with all state and local
312	requirements, whether included in housing codes, ordinances, or
313	any other regulatory or criminal statutes or ordinances
314	governing lead paint contained in an affected property.
315	(3)  The Lead Poisoning Prevention Commission shall either
316	develop a proposal for mandatory inspections of all affected
317	properties to be implemented by January 1, 2007, or shall
318	develop alternative measures of enforcement and penalties to
319	ensure that all affected properties comply with either the lead-
320	free standard described in section 5(1) or the lead-safe
321	standard described in section 5(2) within a reasonable period of
322	time after January 1, 2007.
323	(4)  After July 1, 2005, the director or the director's
324	designee for the jurisdiction in which an affected property is
325	located shall order an inspection of an affected property, at
326	the expense of the owner of the affected property, whenever the
327	director or the director's designee for the jurisdiction in
328	which such property is located is notified that the affected
329	property reasonably appears to comply with neither the lead-free
330	standard nor the lead-safe standard as those standards are
331	defined in section 5 and a person at risk resides in the
332	affected property or spends more than 24 hours per week in the
333	affected property.  An inspection required under this subsection
334	shall be completed within 90 days after notification of the
335	director or the director's designee for the jurisdiction in
336	which such property is located.
337	(5)  The director or the director's designee for the
338	jurisdiction in which an affected property is located shall
339	order an inspection of an affected property, at the expense of
340	the owner of the affected property, whenever the director or the
341	director's designee for the jurisdiction in which such property
342	is located is notified that a person at risk who resides in the
343	affected property or spends more than 24 hours per week in the
344	affected property has an elevated blood lead level greater than
345	or equal to 15 ?g/dL.  An inspection under this subsection shall
346	be completed within 15 days after notification of the director
347	or the director's designee for the jurisdiction in which such
348	property is located.
349	(6)  The inspector shall submit a verified report of the
350	result of the inspection to the director or the director's
351	designee for the jurisdiction in which such property is located,
352	to the owner, and to the tenant, if any, of the affected
353	property.
354	(7)  The owner of an affected property shall pay a fee at
355	the time of the inspection of an affected property sufficient to
356	pay the full costs of the inspection.
357	Section 7.  Accreditation of inspectors and contractors
358	performing work.--
359	(1)  No person shall act as a contractor or supervisor to
360	perform the work necessary for lead-hazard abatement as defined
361	in this act unless that person is accredited by the director.
362	The director shall accredit for these purposes any person
363	meeting the standards described in one of the following
364	paragraphs:
365	(a)  Regulations to be adopted by the director pursuant to
366	this act governing the accreditation of individuals to engage in
367	lead-based paint activities sufficient to satisfy the
368	requirements of 40 C.F.R. s. 745.325 or any applicable successor
369	provisions to 40 C.F.R. s. 745.325.
370	(b)  Certification by the United States Environmental
371	Protection Agency to engage in lead-based paint activities
372	pursuant to 40 C.F.R. s. 745.226 or any applicable successor
373	provisions to 40 C.F.R. s. 745.226.
374	(c)  Certification by a state or tribal program authorized
375	by the United States Environmental Protection Agency to certify
376	individuals engaged in lead-based paint activities pursuant to
377	40 C.F.R. s. 745.325 or any applicable successor provisions to
378	40 C.F.R. s. 745.325.
379
380	The director shall, by regulation, create exceptions to the
381	accreditation requirement for instances where the disturbance of
382	lead-based paint is incidental.
383	(2)  An inspector accredited by the director shall conduct
384	all inspections required by section 6 of this act, or otherwise
385	required by this act. The director shall accredit as an
386	inspector any individual meeting the requirements of paragraph
387	(a) or paragraph (b):
388	(a)  Regulations to be adopted by the director pursuant to
389	this act governing the accreditation of individuals eligible to
390	conduct the inspections required by this act; or
391	(b)  Certification to conduct risk assessments by the EPA
392	pursuant to 40 C.F.R. s. 745.226(b) or any applicable successor
393	provisions to 40 C.F.R. s. 745.226.
394	(3)  The accreditation of contractors or supervisors of
395	those performing the work necessary for lead-hazard abatement,
396	and the accreditation of those performing the inspections
397	required by this section, shall extend for a period of 3 years
398	unless the director has probable cause to believe a person
399	accredited under this section has violated the terms of the
400	accreditation or engaged in illegal or unethical conduct related
401	to inspections required by this act, in which case the
402	accreditation to perform inspections shall be suspended pending
403	a hearing in accordance with the provisions of state law.
404	(4)  The director shall establish by regulation a schedule
405	of fees for the registration of persons performing lead hazard
406	abatement and a separate schedule for persons performing
407	inspections pursuant to this act. Such fees shall be required to
408	be paid at the time of initial registration and at the time of
409	subsequent renewal of registration, and shall be sufficient to
410	cover all costs, including the costs of state personnel,
411	attributable to accreditation activities conducted under this
412	section.
413	(a)  Fees collected pursuant to this subsection shall be
414	held in a separate account within the State Housing Trust Fund
415	to be used for accreditation purposes under this section.
416	(b)  The Chief Financial Officer shall administer the
417	account.
418	(c)  Funds deposited in the separate account within the
419	State Housing Trust Fund established under this subsection shall
420	be invested and reinvested and any investment earnings shall be
421	paid into the account.
422	(5)  The provisions and procedures of the Department of
423	Business and Professional Regulation shall be used for and shall
424	apply to the enforcement of violations of this section, any
425	rules adopted under this act, and any condition of accreditation
426	issued under this act.
427	Section 8.  Liability protection and qualified offer.--
428	(1)  This section applies to all potential bases of civil
429	liability for alleged injury or loss to a person caused by the
430	ingestion of lead by a person at risk in an affected property;
431	except that this section does not apply to any claim in which
432	the elevated blood-lead level of the person at risk is
433	documented to have existed on or before the date 60 days after
434	the affected property at which the person at risk resides or
435	otherwise allegedly was exposed to lead has been certified as
436	lead free under section 5(1) or lead safe under section 5(2).
437	(2)  A property owner and his or her agents and employees
438	are immune from civil liability to a person at risk, or his or
439	her parents or legal guardian, for injuries or damages resulting
440	from the ingestion of lead contained in an affected property if:
441	(a)  The property has been certified as lead free under
442	section 5(1) or as lead safe under section 5(2); and
443	(b)  The property owner or his agent has made a qualified
444	offer as described in subsection (5) to the person at risk, or
445	his or her parent or legal guardian, in a case in which the
446	person at risk has a documented elevated blood lead level of 15
447	?g/dL or more performed more than 60 days following
448	certification of the premises as lead safe or lead free pursuant
449	to section 5, regardless of whether such qualified offer has
450	been accepted or rejected by the person at risk, or his or her
451	parent or legal guardian.
452	(3)  The immunity described in subsection (2) does not
453	apply if it is shown that one of the following has occurred:
454	(a)  The owner or his or her employee or agent obtained the
455	certification of lead-free or lead-safe status by fraud;
456	(b)  The owner or his or her employee or agent violated a
457	condition of the certification;
458	(c)  During renovation, remodeling, maintenance, or repair
459	after receiving the certificate, the owner or his or her
460	employee or agent created a lead-based paint hazard that was
461	present in the affected property at the time the person at risk
462	either was exposed to a lead-based paint hazard or first was
463	tested with an elevated blood lead level greater than 15 ?g/dL;
464	(d)  The owner or his or her employee or agent failed to
465	respond in a timely manner to notification by a tenant, by the
466	director, by the director's designee for the jurisdiction in
467	which such property is located, or by a local housing or health
468	department that a lead-based paint hazard might be present;
469	(e)  The lead poisoning or lead exposure was caused by a
470	source of lead in the affected property other than lead-based
471	paint.
472	(4)  A person may not bring an action against an owner of
473	an affected property whose property has been certified as lead
474	free under section 5(1) or lead-safe under section 5(2) for
475	damages arising from alleged injury or loss to a person at risk
476	caused by lead-based paint hazard unless he or she documents his
477	or her alleged injury with a test for elevated blood lead levels
478	and presents a written notice to the owner of the affected
479	property or his or her agent or employee of the claim and test
480	results.
481	(a)  If such test results show an elevated blood lead level
482	of less than 15 ?g/dL, the person at risk or his or her parent
483	or legal guardian shall not recover damages from the owner of
484	the affected property, or his or her agents, or employees unless
485	the person at risk or his or her parent or legal guardian can
486	show by clear and convincing evidence that the damage or injury
487	to the person at risk resulted from exposure to lead-based paint
488	and was caused by either:
489	1.  Intentional acts by the owner or his or her agents or
490	employees; or
491	2.  Actions of the owner or his or her agents or employees
492	with knowledge with a substantial certainty that such actions
493	would injure the person at risk or others similarly situated.
494	(b)  If such test results show an elevated blood level of
495	15 ?g/dL or greater, the owner of the affected property or his
496	or her agent or employee shall have the opportunity to make a
497	qualified offer under subsection (5).
498	(c)  If the concentration of lead in a whole venous blood
499	sample of a person at risk tested within 60 days after the
500	person at risk begins residing or regularly spends at least 24
501	hours per week in an affected property that is certified as
502	being in compliance with the provisions of section 5(1) or
503	section 5(2) is equal to or greater than 15 ?g/dL, it shall be
504	presumed that the exposure to lead-based paint occurred before a
505	person at risk began residing or regularly spending at least 24
506	hours per week in the affected property.
507	(5)(a)  A qualified offer as defined in this section may be
508	made to a person at risk by the owner of the affected property,
509	an insurer of the owner, or an agent, employee, or attorney of
510	the owner.
511	(b)  To qualify for the protection of liability under
512	subsection (1), a qualified offer must be made in writing and
513	delivered by certified mail return receipt requested within 30
514	days after the owner of the affected property or his or her
515	agent or employee receives notice of the elevated blood level
516	described in subsection (4).
517	(c)  A qualified offer made under this section may be
518	accepted or rejected by a person at risk or, if the person at
519	risk is a minor, the minor's parent or legal guardian. If the
520	qualified offer is not accepted within 30 days after receipt of
521	the qualified offer, it shall be deemed to have been rejected.
522	By mutual agreement, the parties may extend the period for
523	acceptance of the qualified offer.
524	(d)  Subject to the exception in section 5(3), acceptance
525	of a qualified offer by a person at risk, or by a parent, legal
526	guardian, or other person authorized to respond on behalf of a
527	person at risk, discharges and releases all potential liability
528	of the offeror, the offeror's insured or principal, and any
529	participating co-offeror to the person at risk and to the parent
530	or legal guardian of the person at risk for alleged injury or
531	loss caused by the lead-based paint hazard in the affected
532	property.
533	(e)  No owner of an affected property, or his or her agent,
534	employee, attorney, or anyone acting on his or her behalf, shall
535	represent to a person at risk, his or her parent or guardian, or
536	anyone acting on his or her behalf that an offer of settlement
537	in an action resulting from a lead-based paint hazard in an
538	affected property is a qualified offer unless the affected
539	property has been certified as lead free under section 5(1) or
540	lead safe under section 5(2) and unless the offeror reasonably
541	believes that the settlement offer satisfies all requirements of
542	this section. Any settlement resulting from a settlement offer
543	purporting to be a qualified offer which does not satisfy the
544	requirements of this section shall, at the election of the
545	person at risk, his or her parent or guardian, or other
546	representative, be deemed null and void and of no legal effect.
547	Further, misrepresentation of a settlement offer as a qualified
548	offer when the offer does not meet these requirements shall
549	subject the offeror to criminal penalties for perjury and/or
550	applicable professional disciplinary action. The statute of
551	limitations for an action by a person at risk with an elevated
552	blood lead level or his or her parent or legal guardian is
553	tolled until the misrepresentation described in this paragraph
554	is discovered.
555	(f)  A copy of the qualified offer shall be sent to the
556	director or the director's local designee. The director or the
557	director's local designee shall maintain a copy of the qualified
558	offer in the case management file of the person at risk. In
559	addition, the director or his or her designee also shall
560	directly notify the person at risk or, in the case of a minor,
561	the parent or legal guardian of the minor, of state and local
562	resources available for lead-poisoning prevention and treatment.
563	(g)  A qualified offer shall include payment for reasonable
564	expenses and costs incurred by the person at risk with an
565	elevated blood lead level of 15 ?g/dL or greater for:
566	1.  The relocation of the household of the person at risk
567	to a lead-safe dwelling unit of comparable size and quality that
568	may provide either:
569	a.  The permanent relocation of the household of the
570	affected person at risk to lead-safe housing, including
571	relocation expenses, a rent subsidy, and incidental expenses; or
572	b.  The temporary relocation of the household of the
573	affected person at risk to lead-safe housing while necessary
574	lead-hazard reduction treatments are being performed in the
575	affected property to make the affected property lead safe;
576	2.  Medically necessary treatment for the affected person
577	at risk as determined by the treating physician or other health
578	care provider or case manager of the person at risk that is
579	necessary to mitigate the effects of lead poisoning, as defined
580	by the Department of Health by rule, and in the case of a child,
581	until the child reaches the age of 18 years; and
582	3.  Reasonable attorney's fees, not to exceed the lesser of
583	$2,500 or actual time spent in the investigation, preparation,
584	and presentation of the claim multiplied by an hourly rate of
585	$150 per hour.
586	(h)  An offeror is required to pay reasonable expenses for
587	the medically necessary treatments under subparagraph (g)2. only
588	if coverage for these treatments is not otherwise provided by
589	Medicaid or by a health insurance plan under which the person at
590	risk has coverage or in which the person at risk is enrolled.
591	The health insurance plan shall have no right of subrogation
592	against the party making the qualified offer.
593	(i)  The amounts payable under a qualified offer made under
594	this section are subject to the following aggregate maximum
595	caps:
596	1.  Twenty-five thousand dollars for all medically
597	necessary treatments as provided and limited in subparagraph
598	(g)2.; and
599	2.  Ten thousand dollars for all relocation benefits as
600	provided and limited in subparagraph (g)1.
601
602	All payments under a qualified offer as specified in paragraph
603	(g) shall be paid to the provider of the service, except that
604	payment of incidental expenses may be paid directly to the
605	person at risk or, in the case of a child, to the parent or
606	legal guardian of the person at risk. The payments under a
607	qualified offer may not be considered income or an asset of the
608	person at risk, the parent of a person at risk who is a child,
609	or the legal guardian for purposes of determining eligibility
610	under any state or federal entitlement program.
611	(j)  A qualified offer shall include a certification by the
612	owner of the affected property, under the penalty of perjury,
613	that the owner has complied with the applicable provisions of
614	section 5 and this section in a manner that qualified the owner
615	to make a qualified offer.
616	(k)  A qualified offer shall not be treated as an offer of
617	compromise for purposes of admissibility in evidence,
618	notwithstanding that the amount is not in controversy.
619	(l)  The director may adopt regulations necessary to carry
620	out the provisions of this section.
621	(6)(a)  An owner of an affected property who is not in
622	compliance with the provisions of either section 5(1) or section
623	5(2) during the period of residency of a person at risk is
624	presumed to have failed to exercise reasonable care with respect
625	to lead-based paint hazards during that period in an action
626	seeking damages on behalf of the person at risk for alleged
627	injury or loss resulting from exposure to lead-based paint
628	hazards in the affected property.
629	(b)  The owner has the burden of rebutting this presumption
630	by clear and convincing evidence.
631	(c)  The plaintiff in an action against an owner of an
632	affected property described in paragraph (6)(a), in addition to
633	recovering all other legally cognizable damages, including
634	punitive damages where appropriate, shall be entitled to recover
635	reasonable attorney's fees.
636	Section 9.  Enforcement.--
637	(1)  Owners of affected properties who fail to comply with
638	the provisions of section 5 shall be deemed in violation of this
639	act.  The Office of the Attorney General and any local
640	authorities responsible for the enforcement of housing codes
641	shall enforce vigorously civil remedies or criminal penalties
642	provided for by law arising out of the failure to comply with
643	the requirements of this act and may seek injunctive relief
644	where appropriate.
645	(2)(a)  Any civil or criminal action by state or local
646	officials to enforce the provisions of this act shall be
647	reported to the director or his or her designee.
648	(b)  The director or his or her designee shall issue an
649	annual report outlining specifically the enforcement actions
650	brought pursuant to section 13, the identity of the owners of
651	the affected properties, the authority bringing the enforcement
652	action, the nature of the action, and a description of the
653	criminal penalties and/or civil relief.
654	(c)  After the second written notice from the director, the
655	director's local designee, the Department of Community Affairs,
656	the state or local housing authority, the Department of Health,
657	or the local health department of violations of the provisions
658	of this act occurring within an affected property, or after two
659	criminal or civil actions brought by either state or local
660	officials to enforce this act arising out of violations
661	occurring within an affected property, unless the violations
662	alleged to exist are corrected, the affected property shall be
663	considered abandoned, and the Attorney General, the director or
664	his or her designee, the Secretary of Community Affairs, the
665	secretary's local designee, the state or local housing
666	authority, the Department of Health, the local health
667	department, or any other officials having jurisdiction over the
668	affected property shall have the specific power to request the
669	court to appoint a receiver for the property.  The court in such
670	instances may specifically authorize the receiver to apply for
671	loans, grants, and other forms of funding necessary to correct
672	lead-based paint hazards and meet the standards for lead-safe or
673	lead-free status, and to hold the affected property for such
674	period of time as the funding source may require to ensure that
675	the purposes of the funding have been met. The costs of such
676	receivership shall constitute a lien against the property that,
677	if not discharged by the owner upon receipt of the receiver's
678	demand for payment, shall constitute grounds for foreclosure
679	proceedings instituted by the receiver to recover such costs.
680	Section 10.  Private right to injunctive relief.--
681	(1)  A person at risk shall be deemed to have a right to
682	housing which is either lead free or lead safe under the
683	standards set forth in this act.
684	(2)  If an owner of an affected property fails to comply
685	with such standards, a private right of action shall exist that
686	allows a person at risk or the parent or legal guardian of a
687	person at risk to seek injunctive relief from a court with
688	jurisdiction against the owner of the affected property in the
689	form of a court order to compel compliance with the requirements
690	of this act.
691	(3)  A court shall not grant the injunctive relief
692	requested pursuant to section 13, unless, at least 30 days prior
693	to the filing requesting the injunction, the owner of the
694	affected property has received written notice of the violation
695	of standards contained in section 5 and has failed to bring the
696	affected property into compliance with the applicable standards.
697	This notice to the owner of the affected property is satisfied
698	when any of the following has occurred:
699	(a)  A person at risk or his or her parent, legal guardian,
700	or attorney has notified the owner of an affected property that
701	the property fails to meet the requirements for either lead-free
702	status under section 5(1) or for lead-safe status under section
703	5(2);
704	(b)  The director or his or her designee, a local or state
705	housing authority, or the Department of Health has notified the
706	owner of the affected property of violations of the provisions
707	of the act occurring within an affected property; or
708	(c)  A criminal or civil action pursuant to section 13 has
709	been brought by either state or local enforcement officials to
710	enforce this act arising out of violations occurring within an
711	affected property.
712	(4)  A person who prevails in an action under section 13(2)
713	is entitled to an award of the costs of the litigation and to an
714	award of reasonable attorney's fees in an amount to be fixed by
715	the court.
716	(5)  Cases brought before the court under this section
717	shall be granted an accelerated hearing.
718	Section 11.  Retaliatory evictions prohibited.--
719	(1)  An owner of an affected property may not evict or take
720	any other retaliatory action against a person at risk or his or
721	her parent or legal guardian in response to the actions of the
722	person at risk or his or her parent or legal guardian for:
723	(a)  Providing information to the owner of the affected
724	property, the director, the director's designee for the
725	jurisdiction in which such property is located, the Secretary of
726	Community Affairs, the secretary's designee for the jurisdiction
727	in which such property is located, the Department of Health, the
728	Department of Community Affairs, local health officials, or
729	local housing officials concerning lead-based paint hazards
730	within an affected property or elevated blood levels of a person
731	at risk; or
732	(b)  Enforcing any of his or her rights under this act.
733	(2)  For purposes of this section, a "retaliatory action"
734	includes any of the following actions in which the activities
735	protected under section 14(1) are a material factor in
736	motivating said action:
737	(a)  A refusal to renew a lease;
738	(b)  Termination of a tenancy;
739	(c)  An arbitrary rent increase or decrease in services to
740	which the person at risk or his or her parent or legal guardian
741	is entitled; or
742	(d)  Any form of constructive eviction.
743	(3)  A person at risk or his or her parent or legal
744	guardian subject to an eviction or retaliatory action under this
745	section is entitled to relief deemed just and equitable by the
746	court and is eligible for reasonable attorney's fees and costs.
747	Section 12.  Educational programs.--
748	(1)  In order to achieve the purposes of this act, a
749	statewide, multifaceted, ongoing educational program designed to
750	meet the needs of tenants, property owners, health care
751	providers, early childhood educators and care providers,
752	realtors and real estate agents, insurers and insurance agents,
753	and local building officials is hereby established.
754	(2)  The Governor, in conjunction with the director and the
755	Lead Poisoning Prevention Council, shall sponsor a series of
756	public service announcements on radio, television, the Internet,
757	and print media about the nature of lead-based paint hazards,
758	the importance of standards for lead poisoning prevention in
759	properties, the importance of lead-free and lead-safe housing,
760	and the purposes and responsibilities set forth in this act. In
761	developing and coordinating this public information initiative,
762	the sponsors shall seek the participation and involvement of
763	private industry organizations, including those involved in real
764	estate, insurance, mortgage banking, and pediatrics.
765	(3)  Within 120 days after the effective date of this act,
766	the director, in consultation with the Lead Poisoning Prevention
767	Council and the Lead Poisoning Prevention Commission, shall
768	develop culturally and linguistically appropriate information
769	pamphlets regarding childhood lead poisoning, the importance of
770	testing for elevated blood lead levels, prevention of childhood
771	lead poisoning, treatment of childhood lead poisoning, and where
772	appropriate, the requirements of this act. It is a requirement
773	of this act that these information pamphlets be distributed to
774	parents or the other legal guardians of children 6 years of age
775	or younger on the following occasions:
776	(a)  By the owner of any affected property or his or her
777	agents or employees at the time of the initiation of a rental
778	agreement to a new tenant whose household includes a person at
779	risk or any other woman of childbearing age;
780	(b)  By the health care provider at the time of the child's
781	birth and at the time of any childhood immunization or
782	vaccination unless it is established that such information
783	pamphlet has been provided previously to the parent or legal
784	guardian by the health care provider within the prior 12 months;
785	and
786	(c)  By the owner or operator of any child care facility or
787	preschool or kindergarten class on or before October 15 of the
788	calendar year.
789	(4)  The director, in conjunction  with the Department of
790	Community Affairs, within 120 days after the effective date of
791	this act shall establish guidelines and a trainer's manual for a
792	Lead Poisoning Prevention for Properties Awareness Seminar with
793	a total class time of 3 hours or less.  Such courses shall be
794	offered by professional associations and community organizations
795	with a training capacity, existing accredited educational
796	institutions, and for-profit educational providers. All such
797	offerings shall be reviewed and approved, on the criteria of
798	seminar content and qualifications of instructors, by the
799	Department of Community Affairs.
800	Section 13.  Screening program.--
801	(1)  The director shall establish a program for early
802	identification of persons at risk with elevated blood lead
803	levels. Such program shall systematically screen children under
804	6 years of age in the target populations identified in
805	subsection (2) for the presence of elevated blood lead levels.
806	Children within the specified target populations shall be
807	screened with a blood-lead test at age 12 months and age 24
808	months, or between the ages of 36 months and 72 months if they
809	have not previously been screened. The director shall, after
810	consultation with recognized professional medical groups and
811	such other sources as he or she deems appropriate, promulgate
812	regulations establishing:     (a)  The means by which and the
813	intervals at which such children under 6 years of age shall be
814	screened for lead poisoning and elevated blood lead levels; and
815	(b)  Guidelines for the medical follow up of children found
816	to have elevated blood lead levels.
817	(2)  In developing screening programs to identify persons
818	at risk with elevated blood lead levels, the director shall give
819	priority to persons within the following categories:
820	(a)  All children enrolled in Medicaid at ages 12 months
821	and 24 months, or between the ages of 36 months and 72 months if
822	they have not previously been screened;
823	(b)  Children under the age of 6 years exhibiting delayed
824	cognitive development or other symptoms of childhood lead
825	poisoning;
826	(c)  Persons at risk residing in the same household, or
827	recently residing in the same household, as another person at
828	risk with a blood lead level of 10 ?g/dL or greater;
829	(d)  Persons at risk residing, or who have recently
830	resided, in buildings or geographical areas in which significant
831	numbers of cases of lead poisoning or elevated blood lead levels
832	have recently been reported;
833	(e)  Persons at risk residing, or who have recently
834	resided, in affected properties contained in buildings which
835	during the preceding 3 years have been subject to enforcement
836	actions, injunctive relief actions, or receivership actions for
837	violations of lead poisoning prevention regulations as specified
838	by the director; and
839	(f)  Persons at risk residing in other buildings or
840	geographical areas in which the director reasonably determines
841	there is a significant risk of affected individuals having a
842	blood lead level of 10 ?g/dL or greater.
843	(3)  The director shall maintain comprehensive records of
844	all screenings conducted pursuant to this section. Such records
845	shall be indexed geographically and by owner in order to
846	determine the location of areas of relatively high incidence of
847	lead poisoning and other elevated blood lead levels. Such
848	records shall be public records.
849
850	All cases or probable cases of lead poisoning, as defined by
851	regulation by the director, found in the course of screenings
852	conducted pursuant to this section shall be reported immediately
853	to the affected individual, to his or her parent or legal
854	guardian if he or she is a minor, and to the director.
855	Section 14.  Definitions.--
856	(1)  "Abatement" means any set of measures designed to
857	permanently eliminate lead-based paint or lead-based paint
858	hazards. Abatement includes the removal of lead-based paint and
859	dust-lead hazards, the permanent enclosure or encapsulation of
860	lead-based paint, the replacement of components or fixtures
861	painted with lead-based paint, and the removal or permanent
862	covering of soil-based hazards.
863	(2)  "Affected property" means a room or group of rooms
864	within a property constructed before 1978 that form a single
865	independent habitable dwelling unit for occupation by one or
866	more individuals that has living facilities with permanent
867	provisions for living, sleeping, eating, cooking, and
868	sanitation. Affected property does not include:
869	(a)  An area not used for living, sleeping, eating,
870	cooking, or sanitation, such as an unfinished basement;
871	(b)  A unit within a hotel, motel, or similar seasonal or
872	transient facility unless such unit is occupied by one or more
873	persons at risk for a period exceeding 30 days;
874	(c)  An area which is secured and inaccessible to
875	occupants; or
876	(d)  A unit which is not offered for rent.
877
878	Affected property excludes any property owned or operated by a
879	unit of federal, state, or local government, or any public,
880	quasi-public, or municipal corporation, if the property is
881	subject to lead standards that are equal to, or more stringent
882	than, the requirements for lead-safe status under section 5(2).
883	(3)  "Change in occupancy" means a change of tenant in an
884	affected property in which the property is vacated and
885	possession is either surrendered to the owner or abandoned.
886	(4)  "Chewable surface" means an interior or exterior
887	surface painted with lead-based paint that a child under the age
888	of 6 can mouth or chew. Hard metal substrates and other
889	materials that cannot be dented by the bite of a child under the
890	age of six 6 are not considered chewable.
891	(5)  "Containment" means the physical measures taken to
892	ensure that dust and debris created or released during lead-
893	based paint hazard reduction are not spread, blown, or tracked
894	from inside to outside of the worksite.
895	(6)  "Deteriorated paint" means any interior or exterior
896	paint or other coating that is peeling, chipping, chalking, or
897	cracking, or any paint or coating located on an interior or
898	exterior surface or fixture that is otherwise damaged or
899	separated from the substrate.
900	(7)  "Director" means the Director of Lead Paint Poisoning
901	Prevention.
902	(8)  "Dwelling unit" means a:
903	(a)  Single-family dwelling, including attached structures
904	such as porches and stoops; or
905	(b)  Housing unit in a structure that contains more than
906	one separate housing unit and in which each such unit is used or
907	occupied, or intended to be used or occupied, in whole or in
908	part, as the home or separate living quarters of one or more
909	persons.
910	(9)  "Elevated blood lead level" or "EBL" means a quantity
911	of lead in whole venous blood, expressed in micrograms per
912	deciliter (?g/dL), that exceeds 15 ?g/dL or such other level as
913	may be specifically provided in this act.
914	(10)  "Encapsulation" means the application of a covering
915	or coating that acts as a barrier between the lead-based paint
916	and the environment and that relies for its durability on
917	adhesion between the encapsulant and the painted surface, and on
918	the integrity of the exiting bonds between paint layers and
919	between the paint and the substrate. Encapsulation may be used
920	as a method of abatement if it is designed and performed so as
921	to be permanent.
922	(11)  "Exterior surfaces" means:
923	(a)  All fences and porches that are part of an affected
924	property;
925	(b)  All outside surfaces of an affected property that are
926	accessible to a child under the age of 6 years and that:
927	1.  Are attached to the outside of an affected property; or
928	2.  Consist of other buildings that are part of the
929	affected property; and
930	(c)  All painted surfaces in stairways, hallways, entrance
931	areas, recreation areas, laundry areas, and garages within a
932	multifamily rental dwelling unit that are common to individual
933	dwelling units and are accessible to a child under the age of 6
934	years.
935	(12)  "Friction surface" means an interior or exterior
936	surface that is subject to abrasion or friction, including, but
937	not limited to, certain window, floor, and stair surfaces.
938	(13)  "g" means gram.
939	(14)  "Hazard reduction" means measures designed to reduce
940	or eliminate human exposure to lead-based hazards through
941	methods including interim controls or abatement or a combination
942	of the two.
943	(15)  "Impact surface" means an interior or exterior
944	surface that is subject to damage from the impact of repeated
945	sudden force, such as certain parts of door frames.
946	(16)  "Inspection" means a comprehensive investigation to
947	determine the presence of lead-based paint hazards and the
948	provision of a report explaining the results of the
949	investigation.
950	(17)  "Interim controls" means a set of measures designed
951	to reduce temporarily human exposure to lead-based paint
952	hazards.  Interim controls include, but are not limited to,
953	repairs, painting, temporary containment, specialized cleaning,
954	clearance, ongoing lead-based paint maintenance activities, and
955	the establishment and operation of management and resident
956	education programs.
957	(18)  "Interior windowsill" means a portion of the
958	horizontal window ledge that is protruding into the interior of
959	a room.
960	(19)  "Lead-based paint" means paint or other surface
961	coatings that contain lead equal to or exceeding 1.0 milligram
962	per square centimeter or 0.5 percent by weight or 5,000 parts
963	per million (ppm) by weight.
964	(20)  "Lead-based paint hazard" means paint-lead hazards
965	and dust-lead hazards.
966	(21)  "Local designee" means a municipal, county, or other
967	official designated by either the Director of Lead Paint
968	Poisoning Prevention, the Secretary of Community Affairs or the
969	Secretary of Health as responsible for assisting the director,
970	relevant state agencies, and relevant county and municipal
971	authorities, in implementing the activities specified by the act
972	for the geographical area in which the affected property is
973	located.
974	(22)  "mg" means milligram (thousandth of a gram).
975	(23)  "Owner" means a person, firm, corporation, nonprofit
976	organization, partnership, government, guardian, conservator,
977	receiver, trustee, executor, or other judicial officer, or other
978	entity which, alone or with others, owns, holds, or controls the
979	freehold or leasehold title or part of the title to property,
980	with or without actually possessing it. The definition includes
981	a vendee who possesses the title, but does not include a
982	mortgagee or an owner of a reversionary interest under a ground
983	rent lease. Owner includes any authorized agent of the owner,
984	including a property manager or leasing agent.
985	(24)  "Paint-lead hazard" means any one of the following:
986	(a)  Any lead-based paint on a friction surface that is
987	subject to abrasion and where the dust-lead levels on the
988	nearest horizontal surface underneath the friction surface
989	(e.g., the windowsill or floor) are equal to or greater than the
990	dust-lead hazard level of a mass per area concentration of lead
991	equal to or exceeding 40 ?g/ft2 on floors or 250 ?g/ft2 on
992	interior windowsills based on wipe samples;
993	(b)  Any damaged or otherwise deteriorated lead-based paint
994	on an impact surface that is caused by impact from a related
995	building material, such as a door knob that knocks into a wall
996	or a door that knocks against its door frame;
997	(c)  Any chewable lead-based painted surface on which there
998	is evidence of teeth marks;
999	(d)  Any other deteriorated lead-based paint in or on the
1000	exterior of any residential building or any facility occupied by
1001	a person at risk.
1002	(25)  "Permanent" means an expected design life of at least
1003	20 years.
1004	(26)  "Person at risk" means a child under the age of 6
1005	years or a pregnant woman who resides or regularly spends at
1006	least 24 hours per week in an affected property.
1007	(27)  "Relocation expenses" means all expenses necessitated
1008	by the relocation of a tenant's household to lead-safe housing,
1009	including moving and hauling expenses, the HEPA-vacuuming of all
1010	upholstered furniture, payment of a security deposit for the
1011	lead-safe housing, and installation and connection of utilities
1012	and appliances.
1013	(28)  "Tenant" means the individual named as the lessee in
1014	a lease, rental agreement, or occupancy agreement for a dwelling
1015	unit.
1016	(29) "?g" means microgram (millionth of a gram).
1017	Section 15.  This act shall take effect July 1, 2004.

CODING: Words stricken are deletions; words underlined are additions.