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Passing a Lead Safe Toledo Inspection

Posted Mar 13 2023, 11:35

If anyone has been through the Lead Dust Wipe Inspection for Toledo and is willing to share their experience, please share it here. That would include any particular inspector that you feel lives up to the spirit of trying to work with landlords to create a lead safe Toledo, i.e. if you ran into an in inspector that, in your opinion, was overzealous, you are free to share that information also.

As a starter for the conversation, I have gleaned what I think are the most notable points from the Lucas County Health Department guidance:

Preparation Tips for a Lead Dust Wipe Inspection

Preparation-Tips-for-a-Lead-Dust-Wipe-Inspection.pdf (lucascountyhealth.com)

They have a video here:

For reasons I will explain later, I think the video is outdated.

Visual inspection of all surfaces, interior and exterior, to ensure there is no chipping, cracking, or peeling paint.

Paint debris, paint dust, and paint chips are failure of the inspection.

Basements and attics that are directly accessible from inside the unit are subject to the inspection. This includes any areas that are locked-off. For example, if the landlord has a room within the basement that is not accessible to the tenant, it is still subject to visual inspection.  You must unlock it and give the inspector access.

The attic and the basement will only be visually inspected. There will be no wipe test in the attic or basement.

Window sills, window wells, and floors are subject to dust wipes. The tips sheet explicitly states those three areas, and it adds that if there are no windows in a room that the room may still be tested on the floor. Conspicuously absent is any mention of walls or ceilings. Is that accidental, or is the procedure that (a) all areas are open to visual inspection, but (b) only the three, aforementioned locations are subject to dust wipes?

Also –the aforementioned three areas are also subject to visual inspection. If is there is dust there, you will fail. This is a visual inspection. The dust may or may not have lead, but you will still fail if the window sills, wells, or floor are dusty.

Exposed/Bare Soil: Within three feet of the drip line (the exterior of the house) this will fail. Cover any bare soil with mulch. If you have the time, a permanent ground cover, like grass or other landscaping, is ideal.  I say this is ideal, because it is long-term solution to passing every subsequent inspection.  

Keep in mind, every time you walk inside of your home you drag in micro particles of lead. In other words, lead is always being dragged into your home, so you need to clean immediately before the inspection. They require that your last-minute cleaning be completed at least 1 hour before the inspection.

The Youtube video that I posted above states that there are two certificates, but I think this may be bad information from the Health Department…

3 Year Certificate: You failed the first inspection, but passed a subsequent inspection. You DO not want to be on this schedule.

6 Year Certificate: You pass the inspection on the first try.

I now see something about 5 year versus 20 year certificates. Ostensibly, the 20-year certificate is for those that can prove that their house is entirely lead free. Even after proving this, you will be required to reprove it 20 years later, just because... that is what Toledo City Council does. It is the way they think.  Razor sharp minds at work.  As if you might visit the Philippines a decade from now and secretly bring home some leaded paint for the nursery in your rental home.  Don't try it!  They'll know.

My understanding is that if you fail a 5-year certificate, the punishment is that you must pay a lead-certified remediation professional to fix the failures.  So, you'll pay huge money to have someone mop your floor, for example.  

Can anyone contribute to this with additional knowledge, tips, or experience?

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Replied Mar 13 2023, 12:00

I will follow up my post with a question.  There are three areas that may be dust wipe tested: window sills, window wells, and floors.  What if an inspector tests outside of these areas?

For example, the strict definition of a window sill is on the exterior of the house, but I am guessing that they are referring to the window stool, which is the shelf-like projection at the bottom of the window on the interior.  My concern is what if the inspector decides to wipe the window sash or the jambs? Do you call him on it, and get into an argument with the inspector?  It doesn't sound like a sound plan, since the inspector can cause you a lot of damage if they so choose.  On the other hand, by not calling him on it, you could easily fail an inspection, because the inspection was improperly performed. And even if you do call out the deviation from the procedures, is their any appeal process?

Window wells, by the way, are on the exterior of a house also.  You sometimes see them on windows that are below ground level.  Again, is city council/health dept mislabeling parts of the house that will be inspected?  I am very suspicious that they mean window jambs when the say window wells.

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Michael P.#4 Market Trends & Data Contributor
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Replied Mar 13 2023, 12:18

My inspector Jose did a good job. PM if you want his info. Everything passed except one window that we repainted and then re-tested clean. Then he filed the certificate with the city. $350 & $25 filing fee. I know there are cheaper ones, but had a good experience so will use him again.

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Corey Duran
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Corey Duran
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Replied Mar 13 2023, 12:21

I own 14 doors in Toledo and haven't had anything come to my mailbox yet about needing to have my properties inspected yet.. I have been hearing for years that they are trying to pass something but haven't heard anything in over a year.

Should I be concerned? Following to see what you find in case I need to start prepping.

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Replied Mar 13 2023, 12:52

Hi @Corey Duran, there is another thread on Bigger Pockets that specifically addresses the execution of this law.  The summary is: it has been stuck in lawsuit challenges for many years.  It seems that Toledo City Council is having a hard time writing a legal law.  Less than two weeks ago City Council stated that enforcement would commence at the end of this month, March 2023.  An injunction was filed with the Court to prevent them from enforcing the code, because it is still being challenged.  Some people HAVE received letters in the past week.  I think it largely depends on where your rental units are located.  Go here to see where in the queue your rental homes are:

Rental Registry and Lead Safe (arcgis.com)

If you are in the red zone, your time is now.  Maybe.  It depends on how this injunction goes.  Remember, the penalties for failure are criminal, as in - a criminal record forever.  Permanently shut off from going certain places and doing certain things.  That concerns me.  I am doing my best to get my single house in order as soon as possible.  My tenants will pay for the upgrades in the form of increased rent, which is proper.  

The orange and yellow zones are on-the-deck.  Yellow is not until the end of December, but remember, you can't paint your house during the winter, so it is effectively the end of fall this year.  

The thing that is working in your/our favor is that this is just too much for incompetent city bureaucrats to effectively enforce.  At least, not right from the start.  In time, people will comply, and they will focus their efforts on identifying the non-compliers.  

To me this is a lot like the State of Connecticut passing an assault rifle and high capacity magazine registry.  Citizens had to willing comply, or face a felony.  State Police in CT estimate that only 4% of the necessary people registered within a year, and there was nothing they could do about it except keep threatening people with a felony.  But this situation is a little different.  In time, Toledo will be sending inspectors knocking on doors of suspected rentals, and your tenants will become your snitches.  

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Replied Mar 13 2023, 12:55

Thank you @Michael P., I am going to PM you to request his name.

What part of your window failed?  Was it the actual window stool (what they are calling a sill)?  Or did they go beyond the guidance, and test additional parts of the window?

This may sound like a little detail, but the devil is in the details.  Painting window stools/sills is easy.  Painting jambs and sashes gets exceedingly more expensive and difficult.

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Corey Duran
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Corey Duran
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Replied Mar 13 2023, 13:01
Quote from @Christopher Sandys:

Hi @Corey Duran, there is another thread on Bigger Pockets that specifically addresses the execution of this law.  The summary is: it has been stuck in lawsuit challenges for many years.  It seems that Toledo City Council is having a hard time writing a legal law.  Less than two weeks ago City Council stated that enforcement would commence at the end of this month, March 2023.  An injunction was filed with the Court to prevent them from enforcing the code, because it is still being challenged.  Some people HAVE received letters in the past week.  I think it largely depends on where your rental units are located.  Go here to see where in the queue your rental homes are:

Rental Registry and Lead Safe (arcgis.com)

If you are in the red zone, your time is now.  Maybe.  It depends on how this injunction goes.  Remember, the penalties for failure are criminal, as in - a criminal record forever.  Permanently shut off from going certain places and doing certain things.  That concerns me.  I am doing my best to get my single house in order as soon as possible.  My tenants will pay for the upgrades in the form of increased rent, which is proper.  

The orange and yellow zones are on-the-deck.  Yellow is not until the end of December, but remember, you can't paint your house during the winter, so it is effectively the end of fall this year.  

The thing that is working in your/our favor is that this is just too much for incompetent city bureaucrats to effectively enforce.  At least, not right from the start.  In time, people will comply, and they will focus their efforts on identifying the non-compliers.  

To me this is a lot like the State of Connecticut passing an assault rifle and high capacity magazine registry.  Citizens had to willing comply, or face a felony.  State Police in CT estimate that only 4% of the necessary people registered within a year, and there was nothing they could do about it except keep threatening people with a felony.  But this situation is a little different.  In time, Toledo will be sending inspectors knocking on doors of suspected rentals, and your tenants will become your snitches.  


Thank you for the detailed response.. I want to look into this more. Seems a bit more serious/soon than some people have mentioned. I know some investors with 150+ doors in toledo and they haven't said anything to me about this. Maybe they don't know or care yet.. Perhaps they will once door-knocking starts to happen. Do you have a link to the other thread? I am new to bigger pockets so I do not know where to look for this other thread. Is that how you have been staying on top of this info? Do you have other sources for me to stay up to date with these changes? I would appreciate anything else you are willing to share.

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Replied Mar 13 2023, 13:10

Here is the "Super Thread" going back many years.  If you have the time, it obviously makes sense to start with post 1, page 1.    It is a long, long story of Toledo City Council stepping on their own ... shoelaces.  Purely incompetent.  And, some valiant land lords taking the fight to them.  

Now, I advised you to start at the very beginning, but as a spoiler, the last post (today) predicts yet another delay.  But one person on that thread claims that they did receive the dreaded "Letter from the City" just last week. 

Toledo Lead Paint Law...Halted for the THIRD Time (biggerpockets.com)

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Michael P.#4 Market Trends & Data Contributor
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Michael P.#4 Market Trends & Data Contributor
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Replied Mar 13 2023, 15:08
Quote from @Christopher Sandys:

Thank you @Michael P., I am going to PM you to request his name.

What part of your window failed?  Was it the actual window stool (what they are calling a sill)?  Or did they go beyond the guidance, and test additional parts of the window?

This may sound like a little detail, but the devil is in the details.  Painting window stools/sills is easy.  Painting jambs and sashes gets exceedingly more expensive and difficult.


 Sorry I don't have that detail, since I'm an out of state owner I let my PM handle it.

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Dave Poeppelmeier
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Replied Mar 14 2023, 04:59
Quote from @Corey Duran:

I own 14 doors in Toledo and haven't had anything come to my mailbox yet about needing to have my properties inspected yet.. I have been hearing for years that they are trying to pass something but haven't heard anything in over a year.

Should I be concerned? Following to see what you find in case I need to start prepping.


 Yes, you should be concerned, depending on where your properties are. They're not going to send anything to your mailbox, they want your fines I'm sure: 

Rental Registry and Lead Safe

The city has an active lawsuit against it regarding this ordinance, and the attorney has filed an injunction it appears since the city announced on March 1st that the first 2 census tracts whos deadlines have passed are now due on March 31st. 

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Replied Mar 15 2023, 09:56

I sent the following email to my City Council memeber, and she replied that she has sent it to Monica Smith (City’s lead coordinator) for an answer.

***

Thank you for your swift response yesterday to my voicemail.

I have questions regarding the lead wipe test for the Lead Safe Toledo initiative.

It is my understanding, from watching the video released by the Lucas County Health Department, that these areas, and these areas ONLY, are subject to the lead wipe test:

  1. Floors
  2. Window Sills
  3. Window Wells

Question #1: Is that accurate, that these are the only three areas that are subject to the wipe test?

Concern #1: From a strict, architectural definition, a “window sill” is on the exterior of a house. This is clearly an error.

I suspect that they mean the “window stool,” which is the shelf-like projection at the bottom of the window on the interior of the house.

I am not trying to nit-pick. However, I do need correct and definitive definitions on what is being tested.

A “window well” is also an exterior feature. You will see them outside of windows that are below ground level. I am betting that this is also mislabeled.

A floor – that is properly labeled.

Whom do I contact to get clarity on what is being tested? I am concerned that these areas of confusion are so prominent. That lacks professionalism.

After receiving that clarification, what if a qualified lead inspector tests an area that is not subject to testing, for example a window jamb?

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Corey Duran
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Corey Duran
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Replied Mar 15 2023, 11:43
Quote from @Dave Poeppelmeier:
Quote from @Corey Duran:

I own 14 doors in Toledo and haven't had anything come to my mailbox yet about needing to have my properties inspected yet.. I have been hearing for years that they are trying to pass something but haven't heard anything in over a year.

Should I be concerned? Following to see what you find in case I need to start prepping.


 Yes, you should be concerned, depending on where your properties are. They're not going to send anything to your mailbox, they want your fines I'm sure: 

Rental Registry and Lead Safe

The city has an active lawsuit against it regarding this ordinance, and the attorney has filed an injunction it appears since the city announced on March 1st that the first 2 census tracts whos deadlines have passed are now due on March 31st. 


My properties are all due in June. Are they actually doing anything if you do not comply in time? I read that the ordinance is there but no enforcement of this. Is this something that they can come back and enforce after the fact? Let's say I got it all done in Aug.. could they come back and say "hey it wasn't done by June here is a fine."?

I was given

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Replied Mar 15 2023, 13:28

They claim they are going to start enforcing on 1 April for the first tract.  However, please see my last post.  I spoke with my Toledo City Councilwoman, and she forwarded my questions/concerns to Monica Smith.  Monica Smith is the enforcement person. 

@Corey Duran, this has been tied up in the courts for years.  This is not the first time Toledo has said, "We are going to start enforcement soon."  Now even though they have cried wolf so many times before, eventually it will likely happen.

Regarding your question on ex-post-facto, I don't know the answer.  I can't imagine they would fine you for voluntarily complying.  The challenge is - get in compliance, even if late, before they catch you.  If you can get it done before they catch you, I would suspect you are in good shape.  

Think about it this way, what if they start nailing everyone that is late to comply?  What would happen then?  They are basically saying: too late - you are self-admitting to a crime.  Now we will fine and prison you. I know what I would I would do: get my tenants out, take the financial hit, and get in compliance while it is not rented out.  Can you imagine the thousands of families being sent to the streets?

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Jack Smith
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Replied Mar 19 2023, 08:38

@Christopher Sandys

Hi Christopher, I am only a casual observer in this, hearing bits and pieces through my colleagues in that area I know through OREIA.  You sound pretty well in tune with this (fantastic!) and all of the rest of us in the state have been watching it closely, fearful of this kind of legislation spreading (has already into Cleveland, maybe also other cities in the southern part of the state).  

Are you connected with the Toledo Property Investors Network?  https://www.toledopin.com/ I'm not sure if Toledo REIA is participating in the lawsuits.

If any of the readers of this thread that are investing in Toledo are not actively involved in one of the area REIAs I would greatly encourage them to rethink that approach!  

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Dave Poeppelmeier
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Replied Mar 20 2023, 02:40
Quote from @Jack Smith:

@Christopher Sandys

Hi Christopher, I am only a casual observer in this, hearing bits and pieces through my colleagues in that area I know through OREIA.  You sound pretty well in tune with this (fantastic!) and all of the rest of us in the state have been watching it closely, fearful of this kind of legislation spreading (has already into Cleveland, maybe also other cities in the southern part of the state).  

Are you connected with the Toledo Property Investors Network?  https://www.toledopin.com/ I'm not sure if Toledo REIA is participating in the lawsuits.

If any of the readers of this thread that are investing in Toledo are not actively involved in one of the area REIAs I would greatly encourage them to rethink that approach!  

Toledo PIN was the spearhead for the first lawsuit against the city that was overall successful. Then the city changed a couple of things and slapped it right back on the books. The current lawsuit is being lead by a couple of other big players in the Toledo RE market, but not PIN. Same attorney though. 

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Replied Apr 4 2023, 08:54

News from the last day of March 2023, behind The Toledo Blade paywall:

"A Lucas County judge granted a preliminary injunction Friday [31 March] to stop Toledo’s lead-safe certification rental law from going into effect on the day the new lead ordinance was scheduled to be enforced.

Lucas County Common Pleas Judge Gary Cook ruled on the injunction Friday in a lawsuit filed by Toledo landlord and rental manager Charmarlyn Strong who is challenging the city’s lead ordinance.
The city of Toledo has “passed, rescinded, and passed again multiple versions” of the ordinance, which has created a ”somewhat convoluted set of circumstances for the court,” he wrote.

However, the injunction is not necessarily “a decision on the ultimate enforceability” of the proposed ordinance, the judge wrote.

The next hearing on the case is scheduled for April 27.

For now, the lead ordinance remains “status quo” until the judge can review all of the legal matters, city law director Dale Emch said Saturday.

“I don’t think the judge’s order regarding the preliminary injunction tips the hand to how he is ultimately going to rule on this,” Mr. Emch said. “We feel that we are on firm legal footing given the way the sixth district ruled on this issue previously.”

Attorney Andrew Mayle, representing the plaintiff in this case, said Saturday that the judge’s ruling was correct.

“We think that Judge Cook made the right decision to preliminary enjoin this (matter) pending further litigation on the merits,” he said.

Mr. Mayle has been opposed to the city’s lead law since 2016 and has successfully won three injunctions against three versions of the ordinance. He believes that this is the first phase of a lengthy litigation process.

“We think that our reading of the law is correct. Whether we’re vindicated at the trial court, the court of appeals or the Ohio Supreme Court, basically we’re in this for the long run and I assume that the city is too,” Mr. Mayle said.

For at least seven years, the city of Toledo has tried to enact a lead-safe ordinance that can successfully withstand legal challenges to no avail.

In the latest version, owners of residential rentals with four or fewer dwellings built before 1978 are required to have their properties inspected for lead paint while also obtaining lead-safe certificates from the Toledo-Lucas County Health Department.

In addition, the inspections must be completed by a local lead inspector who visually inspects properties’ interiors and exteriors and collects dust wipes to test for compliance with U.S. Environmental Protection Agency standards.

Potential fines for violations could reach $10,000 annually. Lead-law violations would be handled in housing court as first-degree misdemeanors, similar to other building nuisances.

Mr. Mayle objects specifically to the lead-safe certificate requirement through the Toledo-Lucas County Health Department. He argues that Toledo City Council does not have the authority to outsource enforcement of a city ordinance to another government agency, which in this case is the Toledo-Lucas County Health Department.

City officials contend that thousands of children continue to test positive for lead poison and they point to testimony from health-care officials who blame Toledo’s blighted housing stock, much of which has become rental property, as the source of the poison.

For Toledo children, especially those who are predominantly poor and live in rental properties, the situation of lead exposure has become critical, health experts have said.

Despite legal challenges, the city has moved forward with enacting the lead-safe certification requirement, which was set to be implemented through a 10-phase process.

Properties identified through the census tract as having the highest risk of lead exposure are listed in the first phase of the lead-certification requirement, in which the deadline was supposed to be March 31. Of the 5,199 rental units located in the first phase, more than 2,000 were not certified as of early March, city officials said.

Between 5,000 and 6,000 properties are included in phase two and phase three of the certification process, in which the deadline for those to receive lead-safe certification is June 30.

Despite the injunction, Toledo Councilman Tiffany Preston Whitman, who chairs council’s neighborhoods and community development committee, said Saturday that she remains confident that the most recent version of Toledo's lead ordinance will stand up in court.

“We believe that our ordinance is ultimately going to protect children,” Ms. Preston Whitman said."