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Senate Bill 2202

Senate Bill sb2202c1

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    Florida Senate - 2004                           CS for SB 2202

    By the Committee on Health, Aging, and Long-Term Care; and
    Senator Miller




    317-2159B-04

  1                      A bill to be entitled

  2         An act relating to the Florida Childhood Lead

  3         Poisoning Reduction Act; providing a popular

  4         name; providing legislative findings; providing

  5         legislative purposes of the act; providing

  6         definitions; providing for a Director of Lead

  7         Poisoning Prevention, appointed by the

  8         Secretary of Health; providing duties and

  9         responsibilities of the director; providing for

10         the establishment of a statewide program for

11         the prevention, screening, diagnosis, and

12         treatment of lead poisoning; providing for a

13         Lead Poisoning Prevention Commission; providing

14         for membership and duties of the commission;

15         providing criteria for lead-free and lead-safe

16         property status; providing notice requirements

17         when an owner of an affected property intends

18         to make repairs to or perform specified

19         maintenance work on an affected property;

20         providing requirements and procedures with

21         respect to access to and vacation of affected

22         properties; providing for voluntary inspection

23         of affected properties; requiring the Lead

24         Poisoning Prevention Commission to develop a

25         proposal for the implementation of mandatory

26         inspections of all affected properties or to

27         develop alternative measures of enforcement and

28         penalties to ensure compliance with lead-free

29         or lead-safe standards by a specified date;

30         providing for involuntary inspections under

31         specified circumstances; providing for

                                  1

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         inspection reports; providing for certification

 2         of persons performing lead-hazard-reduction

 3         activities by the Department of Health;

 4         providing for certification of persons

 5         performing inspections; providing for duration

 6         of certification; providing certification fees

 7         for persons performing lead-hazard abatement

 8         and persons performing inspections; providing

 9         for deposit of fees; providing for enforcement

10         of the act; providing for reporting of

11         enforcement actions; providing for receivership

12         of properties not meeting certain standards;

13         providing for injunctive relief; providing for

14         notice of intent to seek injunctive relief;

15         providing for recovery of costs and attorney's

16         fees; prohibiting retaliatory evictions;

17         defining the term "retaliatory action";

18         providing for relief for retaliatory eviction

19         and retaliatory action; providing for the

20         establishment of a statewide comprehensive

21         educational program; providing for a public

22         information initiative; providing for

23         distribution of specified literature; providing

24         for a Lead Poisoning Prevention for Properties

25         seminar; requiring the establishment of a

26         program for early identification of persons at

27         risk of elevated levels of lead in the blood;

28         providing for screening of children; providing

29         for screening priorities; providing for the

30         maintenance of records of screenings; providing

31         for reporting of cases of lead poisoning;

                                  2

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         authorizing the Department of Health to adopt

 2         rules; providing an effective date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Popular name.--This act may be cited as the

 7  "Florida Childhood Lead Poisoning Reduction Act."

 8         Section 2.  Legislative findings.--

 9         (1)  Nearly 300,000 American children may have levels

10  of lead in their blood in excess of 10 micrograms per

11  deciliter (ug/dL).  Unless prevented or treated, elevated

12  blood-lead levels in egregious cases may result in impairment

13  of the ability to think, concentrate, and learn.

14         (2)  A significant cause of lead poisoning in children

15  is the ingestion of lead particles from deteriorating or

16  abraded lead-based paint from older, poorly maintained

17  residences.

18         (3)  The health and development of these children and

19  many others are endangered by chipping or peeling lead-based

20  paint or excessive amounts of lead-contaminated dust in poorly

21  maintained homes.

22         (4)  Ninety percent of lead-based paint still remaining

23  in occupied housing exists in units built before 1960, with

24  the remainder in units built before 1978.

25         (5)  The dangers posed by lead-based paint can be

26  substantially reduced and largely eliminated by taking

27  measures to prevent paint deterioration and limiting

28  children's exposure to paint chips and lead dust.

29         (6)  The deterioration of lead-based paint in older

30  residences results in increased expenses each year for the

31  state in the form of special education and other education

                                  3

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1  expenses, medical care for lead-poisoned children, and

 2  expenditures for delinquent youth and others needing special

 3  supervision.

 4         (7)  Older housing units remain an important part of

 5  the makeup of the state's housing, particularly for those of

 6  modest or limited incomes.

 7         (8)  The possibility of liability exposure among

 8  landlords has led many to abandon older properties or to place

 9  them in shell corporations in order to avoid personal

10  liability.

11         (9)  The incidence of childhood lead poisoning can be

12  reduced substantially without significant additional cost to

13  the state by creating appropriate incentives for property

14  owners to make their properties lead-free or lead-safe and by

15  targeting existing state resources used to prevent childhood

16  lead poisoning more effectively.

17         (10)  Knowledge of lead-based-paint hazards, their

18  control, mitigation, abatement, and risk avoidance is not

19  sufficiently widespread, especially outside urban areas.

20         (11)  A majority of children in this state living in

21  circumstances suggesting a significant possibility that they

22  have elevated levels of lead in their blood are not currently

23  tested for the presence of such elevated blood-lead levels.

24         (12)  Early detection of elevated blood-lead levels in

25  children allows treatment and mitigation of the conditions

26  that result in further elevation of blood-lead levels and

27  often can prevent further harm.

28         Section 3.  Legislative purposes.--To promote the

29  elimination of childhood lead poisoning in the state, the

30  purposes of this act are to:

31  

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         (1)  Significantly reduce the incidence of childhood

 2  lead poisoning in the state.

 3         (2)  Increase the supply of affordable rental housing

 4  in the state in which measures have been taken to reduce

 5  substantially the risk of childhood lead poisoning.

 6         (3)  Improve public awareness of lead safety issues and

 7  to educate both property owners and tenants about practices

 8  that can reduce the incidence of lead poisoning.

 9         (4)  Encourage the testing of children likely to suffer

10  the consequences of lead poisoning so that prompt diagnosis

11  and treatment, as well as the prevention of harm, are

12  possible.

13         Section 4.  Definitions.--As used in this act, the

14  term:

15         (1)  "Abatement" means any set of measures designed to

16  permanently eliminate lead-based paint or lead-based-paint

17  hazards. Abatement includes the removal of lead-based paint

18  and dust-lead hazards, the permanent enclosure or

19  encapsulation of lead-based paint, the replacement of

20  components or fixtures painted with lead-based paint, and the

21  removal or permanent covering of soil-based hazards.

22         (2)  "Affected property" means a room or group of rooms

23  within a property constructed before 1978 which form a single

24  independent habitable dwelling unit for occupation by one or

25  more individuals and which has living facilities with

26  permanent provisions for living, sleeping, eating, cooking,

27  and sanitation. Affected property does not include:

28         (a)  An area not used for living, sleeping, eating,

29  cooking, or sanitation, such as an unfinished basement;

30  

31  

                                  5

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         (b)  A unit within a hotel, motel, or similar seasonal

 2  or transient facility, unless such unit is occupied by one or

 3  more persons at risk for a period exceeding 30 days;

 4         (c)  An area that is secured and inaccessible to

 5  occupants;

 6         (d)  A unit that is not offered for rent; or

 7         (e)  Property that is acquired by a governmental agency

 8  as a right-of-way for a transportation project, is being held

 9  for demolition, and the previous owner or occupant remains in

10  possession for less than 180 days.

11  

12  Affected property excludes any property owned or operated by a

13  unit of federal, state, or local government or by any public,

14  quasi-public, or municipal corporation, if the property is

15  subject to lead standards that are equal to, or more stringent

16  than, the requirements for lead-safe status under section

17  6(2).

18         (3)  "Change in occupancy" means a change of tenant in

19  an affected property in which the property is vacated and

20  possession is surrendered to the owner or abandoned.

21         (4)  "Chewable surface" means an interior or exterior

22  surface painted with lead-based paint that a child under the

23  age of 6 can mouth or chew. Hard metal substrates and other

24  materials that cannot be dented by the bite of a child under

25  the age of 6 are not considered chewable.

26         (5)  "Containment" means the physical measures taken to

27  ensure that dust and debris created or released during

28  lead-based-paint hazard reduction are not spread, blown, or

29  tracked from inside to outside of the worksite.

30         (6)  "Department" means the Department of Health.

31  

                                  6

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         (7)  "Deteriorated paint" means any interior or

 2  exterior paint or other coating that is peeling, chipping,

 3  chalking, or cracking, or any paint or coating located on an

 4  interior or exterior surface or fixture which is otherwise

 5  damaged or separated from the substrate.

 6         (8)  "Director" means the Director of Lead Paint

 7  Poisoning Prevention.

 8         (9)  "Dust-lead hazard" means surface dust in a

 9  residential dwelling or a facility occupied by a person at

10  risk which contains a mass-per-area concentration of lead

11  equal to or exceeding 40 ug/ft2 on floors or 250 ug/ft2 on

12  interior windowsills based on wipe samples.

13         (10)  "Dwelling unit" means a:

14         (a)  Single-family dwelling, including attached

15  structures such as porches and stoops; or

16         (b)  Housing unit in a structure that contains more

17  than one separate housing unit and in which each such unit is

18  used or occupied, or intended to be used or occupied, in whole

19  or in part, as the home or separate living quarters of one or

20  more persons.

21         (11)  "Elevated blood-lead level" means a quantity of

22  lead in whole venous blood, expressed in micrograms per

23  deciliter (ug/dL), which exceeds 15 ug/dL or such other level

24  as specifically provided in this act.

25         (12)  "Encapsulation" means the application of a

26  covering or coating that acts as a barrier between the

27  lead-based paint and the environment and that relies for its

28  durability on adhesion between the encapsulant and the painted

29  surface, and on the integrity of the existing bonds between

30  paint layers and between the paint and the substrate.

31  

                                  7

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1  Encapsulation may be used as a method of abatement if it is

 2  designed and performed so as to be permanent.

 3         (13)  "Exterior surfaces" means:

 4         (a)  All fences and porches that are part of an

 5  affected property;

 6         (b)  All outside surfaces of an affected property which

 7  are accessible to a child under the age of 6 years and which:

 8         1.  Are attached to the outside of an affected

 9  property; or

10         2.  Consist of other buildings that are part of the

11  affected property; and

12         (c)  All painted surfaces in stairways, hallways,

13  entrance areas, recreation areas, laundry areas, and garages

14  within a multifamily rental dwelling unit which are common to

15  individual dwelling units and are accessible to a child under

16  the age of 6 years.

17         (14)  "Friction surface" means an interior or exterior

18  surface that is subject to abrasion or friction, including,

19  but not limited to, certain window, floor, and stair surfaces.

20         (15)  "Hazard reduction" means measures designed to

21  reduce or eliminate human exposure to lead-based hazards

22  through methods that include interim controls, abatement, or a

23  combination of the two.

24         (16)  "HEPA-vacuum" or "high efficiency particle air

25  vacuum" means a device capable of filtering out particles of

26  0.3 microns or greater from a body of air at an efficiency of

27  99.97 percent or greater. The term includes the use of a

28  HEPA-vacuum.

29         (17)  "Impact surface" means an interior or exterior

30  surface that is subject to damage from the impact of repeated

31  sudden force, such as certain parts of door frames.

                                  8

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         (18)  "Inspection" means a comprehensive investigation

 2  to determine the presence of lead-based-paint hazards and the

 3  provision of a report explaining the results of the

 4  investigation.

 5         (19)  "Interim controls" means a set of measures

 6  designed to temporarily reduce human exposure to

 7  lead-based-paint hazards.  Interim controls include, but are

 8  not limited to, repairs, painting, temporary containment,

 9  specialized cleaning, clearance, ongoing lead-based-paint

10  maintenance activities, and the establishment and operation of

11  management and resident education programs.

12         (20)  "Interior windowsill" means a portion of the

13  horizontal window ledge which protrudes into the interior of a

14  room.

15         (21)  "Lead-based paint" means paint or other surface

16  coatings that contain lead equal to or exceeding 1.0 milligram

17  per square centimeter, 0.5 percent by weight, or 5,000 parts

18  per million (ppm) by weight.

19         (22)  "Lead-based-paint hazard" means paint-lead

20  hazards and dust-lead hazards.

21         (23)  "Local designee" means a municipal, county, or

22  other official designated by the Director of Lead Paint

23  Poisoning Prevention, the Secretary of Community Affairs, or

24  the Secretary of Health as responsible for assisting the

25  director, relevant state agencies, and relevant county and

26  municipal authorities in implementing the activities specified

27  by the act for the geographical area in which the affected

28  property is located.

29         (24)  "Owner" means a person, firm, corporation,

30  nonprofit organization, partnership, government, guardian,

31  conservator, receiver, trustee, executor, or other judicial

                                  9

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1  officer, or other entity which, alone or with others, owns,

 2  holds, or controls the freehold or leasehold title or part of

 3  the title to property, with or without actually possessing it.

 4  The definition includes a vendee who possesses the title, but

 5  does not include a mortgagee or an owner of a reversionary

 6  interest under a ground rent lease. The term includes any

 7  authorized agent of the owner, including a property manager or

 8  leasing agent.

 9         (25)  "Paint-lead hazard" means any one of the

10  following:

11         (a)  Any lead-based paint on a friction surface that is

12  subject to abrasion and where the dust-lead levels on the

13  nearest horizontal surface underneath the friction surface,

14  such as the windowsill or floor, are equal to or greater than

15  the dust-lead-hazard level of a mass-per-area concentration of

16  lead equal to or exceeding 40 ug/ft2 on floors or 250 ug/ft2

17  on interior windowsills based on wipe samples;

18         (b)  Any damaged or otherwise deteriorated lead-based

19  paint on an impact surface that is caused by impact from a

20  related building material, such as a door knob that knocks

21  into a wall or a door that knocks against its door frame;

22         (c)  Any chewable lead-based painted surface on which

23  there is evidence of teeth marks; or

24         (d)  Any other deteriorated lead-based paint in or on

25  the exterior of any residential building or any facility

26  occupied by a person at risk.

27         (26)  "Permanent" means an expected design life of at

28  least 20 years.

29         (27)  "Person at risk" means a child under the age of 6

30  years or a pregnant woman who resides or regularly spends at

31  least 24 hours per week in an affected property.

                                  10

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    Florida Senate - 2004                           CS for SB 2202
    317-2159B-04




 1         (28)  "Relocation expenses" means all expenses

 2  necessitated by the relocation of a tenant's household to

 3  lead-safe housing, including moving and hauling expenses, the

 4  HEPA-vacuuming of all upholstered furniture, payment of a

 5  security deposit for the lead-safe housing, and installation

 6  and connection of utilities and appliances.

 7         (29)  "Tenant" means the individual named as the lessee

 8  in a lease, rental agreement, or occupancy agreement for a

 9  dwelling unit.

10         (30)  "ug/ft2" means microgram per foot squared.

11         (31)  "ug/dL" means microgram (millionth of a gram) per

12  deciliter.

13         (32)  "Wipe sample" means a sample collected by wiping

14  a representative surface of known area, as determined by the

15  American Society of Testing Materials in standard

16  E1728-Standard Practice for the Field Collection of Settled

17  Dust Samples Using Wipe Sampling Methods for Lead

18  Determination by Atomic Spectrometry Techniques, with lead

19  determination conducted by an accredited laboratory

20  participating in the Environmental Lead Laboratory

21  Accreditation Program.

22         Section 5.  Director of Lead Poisoning Prevention;

23  Program for Prevention of Lead Poisoning; Lead Poisoning

24  Prevention Commission.--

25         (1)  The Secretary of Health shall appoint a Director

26  of Lead Poisoning Prevention who shall serve at the pleasure

27  of the secretary.  The director shall be responsible, subject

28  to the authority of the secretary, for carrying out and

29  administering all programs created pursuant to this act. To

30  the extent necessary, the director shall designate which local

31  government officials shall assist him or her in carrying out

                                  11

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    Florida Senate - 2004                           CS for SB 2202
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 1  these duties. The director may contract with any agency or

 2  agencies, individuals, or groups for the provision of

 3  necessary services, subject to appropriation.

 4         (2)  Subject to appropriation, the director, working in

 5  coordination with the Lead Poisoning Prevention Commission,

 6  shall establish a statewide program for the prevention,

 7  screening, diagnosis, and treatment of lead poisoning,

 8  including elimination of the sources of such poisoning,

 9  through necessary research, educational, epidemiologic, and

10  clinical activities.

11         (3)  The Lead Poisoning Prevention Commission is

12  created.

13         (a)  The duties of the commission are to:

14         1.  Report to the Governor, the President of the

15  Senate, and the Speaker of the House of Representatives in

16  writing by October 1, 2005, recommending legislation providing

17  both additional incentives for all affected property owners to

18  bring their premises into compliance with the lead-safe

19  standards outlined in section 6(2) and additional means of

20  enforcement and penalties for those property owners who fail

21  to achieve compliance. The incentives to be considered should

22  include, among others, local property tax credits and

23  revolving loan funds.

24         2.  Study and collect information on the effectiveness

25  of this act in fulfilling its legislative purposes as defined

26  in section 3.

27         3.  Make policy recommendations, in addition to those

28  mandated by subparagraph 1., regarding how best to achieve the

29  legislative purposes of this act as set forth in section 3.

30  

31  

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    Florida Senate - 2004                           CS for SB 2202
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 1         4.  Consult with the responsible departments of state

 2  government and applicable state agencies on the implementation

 3  of this act.

 4         5.  Prepare and submit a report by October 1, 2005, to

 5  the Governor, the President of the Senate, and the Speaker of

 6  the House of Representatives on the results of implementing

 7  this act.

 8         (b)  The commission shall consist of 10 members. The

 9  membership shall include:

10         1.  The Director of Lead Poisoning Prevention.

11         2.  The Secretary of Community Affairs or his or her

12  designee.

13         3.  The Secretary of Environmental Protection or his or

14  her designee.

15         4.  One member of the Senate, appointed by the

16  President of the Senate.

17         5.  One member of the House of Representatives,

18  appointed by the Speaker of the House of Representatives.

19         6.  Five members appointed by the Governor, including:

20         a.  A child advocate.

21         b.  A health care provider.

22         c.  A representative of local government.

23         d.  Two owners of rental property in the state.

24         (c)  The commission shall be chaired by the Director of

25  Lead Poisoning Prevention.

26         (d)  Members of the commission shall serve without

27  compensation.

28         Section 6.  Requirements for lead-free and lead-safe

29  property status.--

30         (1)  An affected property is lead-free if:

31  

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    Florida Senate - 2004                           CS for SB 2202
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 1         (a)  The affected property was constructed after 1978;

 2  or

 3         (b)  The owner of the affected property submits to the

 4  director or the director's designee for the jurisdiction in

 5  which such property is located an inspection report that

 6  indicates that the affected property has been tested for the

 7  presence of lead in accordance with standards and procedures

 8  established by rules adopted by the department and states

 9  that:

10         1.  All interior surfaces of the affected property are

11  lead-free; and

12         2.a.  All exterior painted surfaces of the affected

13  property which were chipping, peeling, or flaking have been

14  restored with paint that is not lead-based paint; or

15         b.  No exterior painted surfaces of the affected

16  property are chipping, peeling, or flaking.

17         (2)  An affected property is "lead-safe" if the

18  following treatments to reduce lead-based-paint hazards have

19  been completed by someone certified under section 8 and in

20  compliance with the rules established by the department:

21         (a)  Visually reviewing all exterior and interior

22  painted surfaces;

23         (b)  Removing and repainting chipping, peeling, or

24  flaking paint on exterior and interior painted surfaces;

25         (c)  Stabilizing and repainting any interior or

26  exterior painted surfaces that have lead-based-paint hazards;

27         (d)  Repairing any structural defect that is causing

28  the paint to chip, peel, or flake and that the owner of the

29  affected property has knowledge of or, with the exercise of

30  reasonable care, should have knowledge of;

31  

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    Florida Senate - 2004                           CS for SB 2202
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 1         (e)  Stripping and repainting, replacing, or

 2  encapsulating all interior windowsills and window troughs with

 3  vinyl, metal, or any other durable material that renders the

 4  surface smooth and cleanable;

 5         (f)  Installing caps of vinyl, aluminum, or any other

 6  material in a manner and under conditions approved by the

 7  director in all window wells in order to make the window wells

 8  smooth and cleanable;

 9         (g)  Fixing the top sash of all windows in place in

10  order to eliminate the friction caused by movement of the top

11  sash, except for a treated or replacement window that is free

12  of lead-based paint on its friction surfaces;

13         (h)  Rehanging all doors as necessary to prevent the

14  rubbing together of a lead-painted surface with another

15  surface;

16         (i)  Making all bare floors smooth and cleanable;

17         (j)  Ensuring that all kitchen and bathroom floors are

18  overlaid with a smooth, water-resistant covering; and

19         (k)  HEPA-vacuuming and washing of the interior of the

20  affected property with high phosphate detergent or its

21  equivalent, as determined by the director.

22         (3)  The department shall adopt rules limiting the

23  effective time for each lead-safe certification based on the

24  known effectiveness of the controls used to mitigate the lead

25  hazard. This shall include evaluations that are done by the

26  property owner or his or her designee. The rules shall require

27  that the property owner notify the department of any

28  substantial change in the property, either intentional or

29  accidental, which could impact the lead-safe status.

30         (4)(a)  Whenever an owner of an affected property

31  intends to make repairs or perform maintenance work that will

                                  15

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    Florida Senate - 2004                           CS for SB 2202
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 1  disturb the paint on interior surfaces of an affected

 2  property, the owner shall give any tenant in such affected

 3  property at least 48 hours' written advance notice and shall

 4  make reasonable efforts to ensure that all persons who are not

 5  persons at risk are not present in the area where work is

 6  performed and that all persons at risk are removed from the

 7  affected property when the work is performed.

 8         (b)  A tenant shall allow access to an affected

 9  property, at reasonable times, to the owner to perform any

10  work required under this act.

11         (c)  If a tenant must vacate an affected property for a

12  period of 24 hours or more in order to allow an owner to

13  perform work that will disturb the paint on interior surfaces,

14  the owner shall pay the reasonable expenses that the tenant

15  incurs and that are directly related to the required

16  relocation.

17         (d)  If an owner has made all reasonable efforts to

18  cause the tenant to temporarily vacate an affected property in

19  order to perform work that will disturb the paint on interior

20  surfaces, and the tenant refuses to vacate the affected

21  property, the owner is not liable for any damages arising from

22  the tenant's refusal to vacate.

23         (e)  If an owner has made all reasonable efforts to

24  gain access to an affected property in order to perform any

25  work required under this act, and the tenant refuses to allow

26  access, even after receiving reasonable advance notice of the

27  need for access, the owner is not liable for any damages

28  arising from the tenant's refusal to allow access.

29         Section 7.  Voluntary inspection; mandatory

30  inspection.--

31  

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    Florida Senate - 2004                           CS for SB 2202
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 1         (1)  An owner of an affected property at any time may,

 2  at the owner's expense, have a certified inspector perform an

 3  inspection of the affected property to determine whether it

 4  complies with the requirements for lead-free property status

 5  as specified in section 6(1) or the requirements for lead-safe

 6  property status as specified in section 6(2). The inspector

 7  performing the voluntary inspection shall submit a verified

 8  report of the result of the inspection to the director or the

 9  director's designee for the jurisdiction in which such

10  property is located, to the owner, and to the tenant, if any,

11  of the affected property.

12         (2)  Any affected property certified as lead-free or

13  lead-safe following a voluntary inspection pursuant to

14  subsection (1) shall be deemed in compliance with all state

15  and local requirements, whether included in housing codes,

16  ordinances, or any other regulatory or criminal statutes or

17  ordinances governing lead paint contained in an affected

18  property.

19         (3)  The Lead Poisoning Prevention Commission shall

20  develop a proposal for mandatory inspections of all affected

21  properties to be implemented by January 1, 2007, or shall

22  develop alternative measures of enforcement and penalties to

23  ensure that all affected properties comply with the lead-free

24  standard described in section 6(1) or the lead-safe standard

25  described in section 6(2) within a reasonable period of time

26  after January 1, 2007.

27         (4)  After July 1, 2005, the director or the director's

28  designee for the jurisdiction in which an affected property is

29  located shall order an inspection of an affected property, at

30  the expense of the owner of the affected property, whenever

31  the director or the director's designee for the jurisdiction

                                  17

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 1  in which such property is located is notified that there is

 2  reasonable evidence that the affected property is not in

 3  compliance with either the lead-free standard or the lead-safe

 4  standard as those standards are defined in section 6 and a

 5  person at risk resides in the affected property or spends more

 6  than 24 hours per week in the affected property.  An

 7  inspection required under this subsection shall be completed

 8  within 90 days after notification of the director or the

 9  director's designee for the jurisdiction in which such

10  property is located.

11         (5)  The director or the director's designee for the

12  jurisdiction in which an affected property is located shall

13  order an inspection of an affected property, at the expense of

14  the owner of the affected property, whenever the director or

15  the director's designee for the jurisdiction in which such

16  property is located is notified that a person at risk who

17  resides in the affected property or spends more than 24 hours

18  per week in the affected property has an elevated blood-lead

19  level greater than or equal to 15 ug/dL.  An inspection under

20  this subsection shall be completed within 15 days after

21  notification of the director or the director's designee for

22  the jurisdiction in which such property is located.

23         (6)  The inspector shall submit a verified report of

24  the result of the inspection to the director or the director's

25  designee for the jurisdiction in which such property is

26  located, to the owner, and to the tenant, if any, of the

27  affected property.

28         Section 8.  Certification of inspectors and contractors

29  performing work.--

30         (1)  A person may not act as a contractor or supervisor

31  to perform the work necessary for lead-hazard abatement as

                                  18

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 1  defined in this act unless that person is certified by the

 2  department.  The department shall certify for these purposes

 3  any person meeting the standards described in:

 4         (a)  Regulations to be adopted by the department

 5  pursuant to this act governing the certification of

 6  individuals to engage in lead-based paint activities

 7  sufficient to satisfy the requirements of 40 C.F.R. s. 745.325

 8  or any applicable successor provisions to 40 C.F.R. s.

 9  745.325;

10         (b)  Certification by the United States Environmental

11  Protection Agency to engage in lead-based paint activities

12  pursuant to 40 C.F.R. s. 745.226 or any applicable successor

13  provisions to 40 C.F.R. s. 745.226; or

14         (c)  Certification by a state or tribal program

15  authorized by the United States Environmental Protection

16  Agency to certify individuals engaged in lead-based paint

17  activities pursuant to 40 C.F.R. s. 745.325 or any applicable

18  successor provisions to 40 C.F.R. s. 745.325.

19  

20  The department shall, by rule, create exceptions to the

21  certification requirement for instances in which the

22  disturbance of lead-based paint is incidental.

23         (2)  A person may not act as an inspector to determine

24  whether affected property complies with the requirements for

25  lead-free property status as specified in section 6(1) or the

26  requirements for lead-safe property status as specified in

27  section 6(2) unless the person is certified by the department.

28  An inspector certified by the director shall conduct all

29  inspections required by section 7 or otherwise required by

30  this act. The director shall certify as an inspector any

31  

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 1  individual meeting the requirements of paragraph (1)(a) or

 2  paragraph (1)(b):

 3         (a)  Rules to be adopted by the department pursuant to

 4  this act governing the certification of individuals eligible

 5  to conduct the inspections required by this act; or

 6         (b)  Certification to conduct risk assessments by the

 7  United States Environmental Protection Agency pursuant to 40

 8  C.F.R. s. 745.226(b) or any applicable successor provisions to

 9  40 C.F.R. s. 745.226.

10         (3)  The certification of contractors or supervisors of

11  those performing the work necessary for lead-hazard abatement,

12  and the certification of those performing the inspections

13  required by this section, shall extend for 3 years unless the

14  department has probable cause to believe a person certified

15  under this section has violated the terms of the certification

16  or engaged in illegal or unethical conduct related to

17  inspections required by this act, in which case the

18  certification to perform inspections shall be suspended

19  pending a hearing in accordance with the provisions of chapter

20  120, Florida Statutes.

21         (4)  The department shall establish by rule a schedule

22  of fees for the certification of persons performing

23  lead-hazard abatement and a separate schedule for persons

24  performing inspections pursuant to this act. Such fees shall

25  be required to be paid at the time of initial certification

26  and at the time of subsequent renewal of certification, and

27  shall be sufficient to cover all costs pursuant to this

28  section. Fees collected pursuant to this subsection shall be

29  deposited in the Department of Health Administrative Trust

30  Fund to be used for certification purposes under this section.

31  

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 1         (5)(a)  A person who violates any provision of this

 2  section commits a misdemeanor of the first degree, punishable

 3  as provided in section 775.082 or section 775.083, Florida

 4  Statutes.

 5         (b)  The department may deny a certification or

 6  certification renewal if it determines that an applicant does

 7  not meet all requirements of this section or has violated any

 8  provision of this section. Any applicant who is denied

 9  certification or recertification under this section is

10  entitled to a hearing, after reasonable notice, after filing a

11  written request for a hearing in accordance with chapter 120,

12  Florida Statutes.

13         (6)  In addition to any administrative action

14  authorized by chapter 120, Florida Statutes, the department

15  may impose a fine, which may not exceed $500 for each

16  violation, for a violation of this section, for a violation of

17  any rule adopted under this section, or for a violation of any

18  of the provisions of chapter 386, Florida Statutes. Notice of

19  intent to impose such a fine shall be given by the department

20  to the alleged violator. Each day that a violation continues

21  may constitutes a separate violation for which the department

22  may impose a fine.

23         (7)(a)  The department may issue citations that may

24  contain an order of correction or an order to pay a fine, or

25  both, for violations of this section or the a rule adopted by

26  the department, when a violation of this section or a rule is

27  enforceable by an administrative or civil remedy, or when a

28  violation of this section or rules is a misdemeanor of the

29  second degree. A citation issued under this section

30  constitutes a notice of proposed agency action.

31  

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 1         (b)  The citation must be in writing and must describe

 2  the particular nature of the violation, including specific

 3  reference to the provisions of law or rule allegedly violated.

 4         (c)  A fine imposed by a citation issued by the

 5  department may not exceed $500 for each violation. Each day

 6  the violation exists constitutes a separate violation for

 7  which a citation may be issued.

 8         (d)  The department shall inform the recipient, by

 9  written notice pursuant to sections 120.569 and 120.57,

10  Florida Statutes, of the right to an administrative hearing to

11  contest a citation within 21 days after the date the citation

12  is received. The citation must contain a conspicuous statement

13  that, if the recipient fails to appear to contest the citation

14  after having requested a hearing, the recipient has waived his

15  or her right to contest the citation and must pay an amount up

16  to the maximum fine.

17         (e)  The department may reduce or waive the fine

18  imposed by a citation. In determining whether to reduce or

19  waive the fine, the department must consider the gravity of

20  the violation, the person's attempts at correcting the

21  violation, and the person's history of previous violations for

22  which enforcement actions were taken under this section or

23  other provisions of law or rule.

24         (f)  Any person who willfully refuses to sign and

25  accept a citation issued by the department commits a

26  misdemeanor of the second degree, punishable as provided in

27  section 755.082 or section 775.083, Florida Statutes.

28         (g)  The department shall deposit any fines it collects

29  under this section into the Department of Health

30  Administrative Trust Fund to be used for the costs of

31  administering the certification process under this section.

                                  22

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 1         Section 9.  Enforcement.--

 2         (1)  Owners of affected properties who fail to comply

 3  with the provisions of section 6 shall be deemed in violation

 4  of this act.  The Office of the Attorney General and any local

 5  authorities responsible for the enforcement of housing codes

 6  shall vigorously enforce civil remedies or criminal penalties

 7  provided for by law which arise out of the failure to comply

 8  with the requirements of this act and may seek injunctive

 9  relief where appropriate.

10         (2)(a)  Any civil or criminal action by state or local

11  officials to enforce the provisions of this act shall be

12  reported to the director or his or her designee.

13         (b)  The director or his or her designee shall issue an

14  annual report outlining specifically the enforcement actions

15  brought pursuant to this section, the identity of the owners

16  of the affected properties, the authority bringing the

17  enforcement action, the nature of the action, and a

18  description of the criminal penalties or civil relief.

19         (c)  After the second written notice from the director,

20  the director's local designee, the Department of Community

21  Affairs, the state or local housing authority, the Department

22  of Health, or the local health department of violations of the

23  provisions of this act occurring within an affected property,

24  or after two criminal or civil actions brought by state or

25  local officials to enforce this act arising out of violations

26  occurring within an affected property, unless the violations

27  alleged to exist are corrected, the affected property shall be

28  considered abandoned, and the Attorney General, the director

29  or his or her designee, the Secretary of Community Affairs,

30  the secretary's local designee, the state or local housing

31  authority, the Department of Health, the local health

                                  23

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 1  department, or any other officials having jurisdiction over

 2  the affected property shall have the specific power to request

 3  the court to appoint a receiver for the property.  The court

 4  in such instances may specifically authorize the receiver to

 5  apply for loans, grants, and other forms of funding necessary

 6  to correct lead-based-paint hazards and meet the standards for

 7  lead-safe or lead-free status, and to hold the affected

 8  property for such period of time as the funding source may

 9  require to ensure that the purposes of the funding have been

10  met. The costs of such receivership shall constitute a lien

11  against the property which, if not discharged by the owner

12  upon receipt of the receiver's demand for payment, constitutes

13  grounds for foreclosure proceedings instituted by the receiver

14  to recover such costs.

15         Section 10.  Private right to injunctive relief.--

16         (1)  A person at risk shall be deemed to have a right

17  to housing that is lead-free or lead-safe under the standards

18  set forth in this act.

19         (2)  If an owner of an affected property fails to

20  comply with such standards, a person at risk or the parent or

21  legal guardian of a person at risk has a private right of

22  action to seek injunctive relief from a court with

23  jurisdiction against the owner of the affected property in the

24  form of a court order to compel compliance with the

25  requirements of this act.

26         (3)  A court may not grant the injunctive relief

27  requested pursuant to this section, unless, at least 30 days

28  prior to the filing requesting the injunction, the owner of

29  the affected property has received written notice of the

30  violation of standards contained in section 6 and has failed

31  to bring the affected property into compliance with the

                                  24

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 1  applicable standards. The requirement that the owner of the

 2  affected property receive notice is satisfied if:

 3         (a)  A person at risk or his or her parent, legal

 4  guardian, or attorney has notified the owner of an affected

 5  property that the property fails to meet the requirements for

 6  either lead-free status under section 6(1) or for lead-safe

 7  status under section 6(2);

 8         (b)  The director or his or her designee, a local or

 9  state housing authority, or the Department of Health has

10  notified the owner of the affected property of violations of

11  the provisions of the act occurring within an affected

12  property; or

13         (c)  A criminal or civil action pursuant to section 9

14  has been brought by state or local enforcement officials to

15  enforce this act arising out of violations occurring within an

16  affected property.

17         (4)  A person who prevails in an action under

18  subsection (2) is entitled to an award of the costs of the

19  litigation and to an award of reasonable attorney's fees in an

20  amount to be fixed by the court.

21         (5)  Cases brought before the court under this section

22  shall be granted an accelerated hearing.

23         Section 11.  Retaliatory evictions prohibited.--

24         (1)  An owner of an affected property may not evict or

25  take any other retaliatory action against a person at risk or

26  his or her parent or legal guardian in response to the actions

27  of the person at risk or his or her parent or legal guardian

28  for:

29         (a)  Providing information to the owner of the affected

30  property, the director, the director's designee for the

31  jurisdiction in which such property is located, the Secretary

                                  25

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 1  of Community Affairs, the secretary's designee for the

 2  jurisdiction in which such property is located, the Department

 3  of Health, the Department of Community Affairs, local health

 4  officials, or local housing officials concerning

 5  lead-based-paint hazards within an affected property or

 6  elevated blood-lead levels of a person at risk; or

 7         (b)  Enforcing any of his or her rights under this act.

 8         (2)  For purposes of this section, the term

 9  "retaliatory action" includes any of the following actions in

10  which the activities protected under subsection (1) are a

11  material factor in motivating that action:

12         (a)  A refusal to renew a lease;

13         (b)  Termination of a tenancy;

14         (c)  An arbitrary rent increase or decrease in services

15  to which the person at risk or his or her parent or legal

16  guardian is entitled; or

17         (d)  Any form of constructive eviction.

18         (3)  A person at risk or his or her parent or legal

19  guardian subject to an eviction or retaliatory action under

20  this section is entitled to relief deemed just and equitable

21  by the court and is eligible for reasonable attorney's fees

22  and costs.

23         Section 12.  Educational programs.--

24         (1)  In order to achieve the purposes of this act, a

25  statewide, multifaceted, ongoing educational program designed

26  to meet the needs of tenants, property owners, health care

27  providers, early childhood educators and care providers,

28  realtors and real estate agents, insurers and insurance

29  agents, and local building officials is established.

30         (2)  The Governor, in conjunction with the director and

31  the Lead Poisoning Prevention Commission, shall sponsor a

                                  26

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 1  series of public service announcements on radio, television,

 2  the Internet, and print media about the nature of

 3  lead-based-paint hazards, the importance of standards for lead

 4  poisoning prevention in properties, the importance of

 5  lead-free and lead-safe housing, and the purposes and

 6  responsibilities set forth in this act. In developing and

 7  coordinating this public information initiative, the sponsors

 8  shall seek the participation and involvement of private

 9  industry organizations, including those involved in real

10  estate, insurance, mortgage banking, and pediatrics.

11         (3)  By January 1, 2005, the director, in consultation

12  with the Lead Poisoning Prevention Commission, shall develop

13  culturally and linguistically appropriate information

14  pamphlets regarding childhood lead poisoning, the importance

15  of testing for elevated blood-lead levels, prevention of

16  childhood lead poisoning, treatment of childhood lead

17  poisoning, and where appropriate, the requirements of this

18  act. These information pamphlets shall be distributed to

19  parents or the other legal guardians of children 6 years of

20  age or younger on the following occasions:

21         (a)  By the owner of any affected property or his or

22  her agents or employees at the time of the initiation of a

23  rental agreement to a new tenant whose household includes a

24  person at risk or any other woman of childbearing age;

25         (b)  By the health care provider at the time of the

26  child's birth and at the time of any childhood immunization or

27  vaccination unless it is established that such information

28  pamphlet has been provided previously to the parent or legal

29  guardian by the health care provider within the prior 12

30  months; and

31  

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 1         (c)  By the owner or operator of any child care

 2  facility or preschool or kindergarten class on or before

 3  October 15 of the calendar year.

 4         (4)  By January 1, 2005, the director, in conjunction

 5  with the Department of Community Affairs, shall establish

 6  guidelines and a trainer's manual for a Lead Poisoning

 7  Prevention for Properties Awareness Seminar with a total class

 8  time of 3 hours or less.  The seminar shall be offered by

 9  professional associations and community organizations with a

10  training capacity, existing accredited educational

11  institutions, and for-profit educational providers. The

12  seminar shall be reviewed and approved, based on the seminar

13  content and qualifications of instructors, by the Department

14  of Community Affairs.

15         Section 13.  Screening program.--

16         (1)  The director shall establish a program for early

17  identification of persons at risk of having elevated

18  blood-lead levels. Such program shall systematically screen

19  children under 6 years of age in the target populations

20  identified in subsection (2) for the presence of elevated

21  blood-lead levels. Children within the specified target

22  populations shall be screened with a blood-lead test at age 12

23  months and age 24 months, or between the ages of 36 months and

24  72 months if they have not previously been screened. The

25  director shall establish:

26         (a)  The means by which and the intervals at which such

27  children under 6 years of age shall be screened for lead

28  poisoning and elevated blood-lead levels; and

29         (b)  Guidelines for the medical followup of children

30  found to have elevated blood-lead levels.

31  

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 1  The director shall consult with recognized professional

 2  medical groups and such other sources as he or she deems

 3  appropriate to develop the screening requirements.

 4         (2)  In developing screening programs to identify

 5  persons at risk with elevated blood-lead levels, the director

 6  shall give priority to persons within the following

 7  categories:

 8         (a)  All children enrolled in the Medicaid program at

 9  ages 12 months and 24 months, or between the ages of 36 months

10  and 72 months if they have not previously been screened;

11         (b)  Children under the age of 6 years exhibiting

12  delayed cognitive development or other symptoms of childhood

13  lead poisoning;

14         (c)  Persons at risk residing in the same household, or

15  recently residing in the same household, as another person at

16  risk with a blood-lead level of 10 ug/dL or greater;

17         (d)  Persons at risk residing, or who have recently

18  resided, in buildings or geographical areas in which

19  significant numbers of cases of lead poisoning or elevated

20  blood-lead levels have recently been reported;

21         (e)  Persons at risk residing, or who have recently

22  resided, in affected properties contained in buildings that

23  during the preceding 3 years have been subject to enforcement

24  actions, injunctive relief actions, or receivership actions

25  for violations of lead-poisoning-prevention regulations as

26  specified by the director; and

27         (f)  Persons at risk residing in other buildings or

28  geographical areas in which the director reasonably determines

29  there is a significant risk of affected individuals having a

30  blood-lead level of 10 ug/dL or greater.

31  

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 1         (3)  The director shall maintain comprehensive records

 2  of all screenings conducted pursuant to this section. Such

 3  records shall be indexed geographically and by owner in order

 4  to determine the location of areas of relatively high

 5  incidence of lead poisoning and other elevated blood-lead

 6  levels.

 7  

 8  All cases or probable cases of lead poisoning found in the

 9  course of screenings conducted pursuant to this section shall

10  be reported within 5 working days to the affected individual,

11  to his or her parent or legal guardian if he or she is a

12  minor, and to the director.

13         Section 14.  Rule authority.--The department shall

14  adopt the rules necessary for the duties conferred upon it

15  under the "Florida Childhood Lead Poisoning Reduction Act"

16  pursuant to sections 120.536 and 120.54, Florida Statutes.

17         Section 15.  This act shall take effect July 1, 2004.

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2202

 3                                 

 4  The committee substitute makes the following changes to SB
    2202:
 5  
    Removes language that created a Lead Poisoning Prevention
 6  Coordinating Council and adds the Secretary of Environmental
    Protection or designee to the Lead Poisoning Prevention
 7  Commission.

 8  Provides definitions for department, dust-lead hazard,
    dwelling unit, HEPA-vacuum, "ug/dL", "ug/ft2", and wipe
 9  sample. Requires the department to promulgate rules limiting
    the effective time for each "lead-safe" certification based on
10  the known effectiveness of the controls used to mitigate the
    lead-hazard, which shall include evaluations that are done by
11  the property owner or his or her designee. The rules must
    require that the property owner notify the department of any
12  substantial change in the property, either intentional or
    accidental, that could impact the "lead-safe" status.
13  
    Provides that an owner of an affected property at any time
14  may, at the owner's expense, have a certified inspector
    perform an inspection of the affected property to determine
15  whether it complies with the requirements for lead-free and
    lead-safe property status. The inspector performing the
16  voluntary inspection  must submit a verified report of the
    result of the inspection to the director or the director's
17  designee, to the owner, and to the tenant of the affected
    property.
18  
    Establishes standards for certification, rather than
19  accreditation, of inspectors and contractors performing work
    and gives the department, rather than the director, the
20  authority to establish and implement these standards. Requires
    the department to establish, by rule, fee schedules for the
21  certification of individuals performing lead-hazard abatement
    and for inspectors, and provides requirements for payment of
22  fees. Fees must be deposited into the department's
    Administrative Trust Fund to be used for certification
23  purposes. The bill provides penalties and prohibitions for
    violating certification requirements and gives the department
24  the authority to impose fines or issue citations for
    violations of the certification provisions or any rules
25  adopted. The fines collected must be deposited into the
    department's Administrative Trust Fund.
26  
    Deletes Section 8 of the bill that provided for liability
27  protection for property owners that applied to all potential
    civil liability for alleged injury or loss due to lead
28  ingestion attributable to a property covered by this bill.

29  Removes the requirement that records collected under the
    screening program shall be public records.
30  
    Provides rule authority to the department, pursuant to ss.
31  120.536 and 120.54, F.S., to implement the provisions of the
    act.
                                  31

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