§ 17-35. Use of lead-bearing substances prohibited, where; prevention of lead poison hazard.

(a)

Purpose. Lead-bearing substances present a significant health hazard, particularly to children. The purpose of this section is to prevent lead poisoning resulting from the assimilation of lead-bearing substances into the human body without limit to the means of exposure, whether by ingestion, absorption, inhalation or otherwise. Such assimilation is known to be detrimental and is hereby declared to constitute a serious hazard to the health, safety and welfare of the inhabitants of the city. Lead poisoning is a reportable condition pursuant to state administrative regulations as enforced by the state department of health and environment.

(b)

Definitions. The following words, terms, and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Dwelling means any grounds or premises with any type of structure (e.g., residential, commercial, industrial and public) and any related ancillary or accessory structure to such structures or premises, whether interior or exterior.

Dwelling, residential, means any dwelling used primarily as a home or living quarters and any and all ancillary or accessory structures including, but not limited to, garages, carports, sheds, yards, playgrounds, driveways, carriage houses, fences, gates, any room, group of rooms, or other interior or exterior area either designed or used for human habitation by human occupancy, or any dwelling or structure commonly occupied by children in a day care, social or recreational center, home or facility.

Dwelling unit means any room, group of rooms or other interior area of a dwelling or any part of such room, group of rooms, or other interior area which is either designed or used for human habitation or human occupancy, or commonly occupied by children in a day care center or home or school.

Lead-bearing substances means, but is not necessarily limited to, any paint, lacquer, putty, plaster, structural material, soil, water, air, dust, pipes, fixtures, or similar substance containing a quantity of lead concentration determined by the unified government health department, consistent with the standards promulgated by the Environmental Protection Agency, to constitute a hazard to health.

Lead poison hazard means any open or exposed surface of substrata in any dwelling which is coated with, consists of, or contains a lead-bearing substance if such surface, substrata, or generated debris is accessible or may become accessible to ingestion or inhalation by any person, but particularly children under the age of six, or may become accessible as a result of remediation, maintenance, repainting, or renovation, and is flaking, chipped, cracking, peeling, scaling, blistered or loose, as is present on or in any interior or exterior surface on, but not necessarily limited to, any porches or their steps, decking, banisters or railings, or walls, windows and sills, door jams, ceilings, or exterior trim, boarding or fascia. The quantity of lead concentration of various substances (including, but not limited to, superficial dust, paint, air contaminants, water, soils and debris) that constitute a hazard shall be determined by the unified government health department consistent with the standards promulgated by the Environmental Protection Agency and made available to the public upon request.

Open or exposed surface means any interior surface of a dwelling or any exterior surface thereof to which persons, and particularly children, may be commonly exposed.

(c)

Day care and child care centers. Inspection for potential dangers from lead-bearing substances shall be made by the unified government health department in the course of daycare and child care center licensing inspections. The unified government health department shall require childcare facilities with potentially dangerous lead exposure to children to remediate any open or exposed surface containing any lead-bearing substance consistent with Environmental Protection Agency standards for remediation.

(d)

Elevated blood levels of lead in children. Elevated blood lead levels (EBL) in children is a condition which requires report to the unified government health department, the local health authority for the unified government, pursuant to K.S.A. 65-102 and K.A.R. 28-1-3. Upon notification, the health department shall inspect those dwellings, structures, facilities and items of personal property which may be the cause of the EBL and a lead poison hazard.

(1)

If a lead poison hazard is found in, on or about residential dwelling premises offered for habitation by rent, lease or the like, the property owner must submit a plan of remediation to the health department within a reasonable time and proof of remediation to the health department in a reasonable time thereafter.

(2)

If a lead poison hazard is found in, on or about premises whose primary purpose is commercial, the owner or rightful possessor of the property must submit a plan of remediation to the health department within a reasonable time and proof of appropriate remediation to the health department in a reasonable time thereafter.

(3)

If a lead poison hazard is found in a residence occupied by the owner and/or his family, the health department will provide educational materials and assistance, as available, to the home owner as to the dangers of exposure to lead-bearing substances and cost-effective remedial measures which may be taken.

(4)

If an owner of a residential dwelling offered for rent or lease or of commercial property, or a rightful possessor with the obligation of maintaining the property in question fails to submit a plan for remediation and/or fails to subsequently remedy the defect as described in subsections (d)(1) and (d)(2) of this section, said owners or possessors shall be in violation of this section and subject to the penalties described in subsection (g) of this section.

(e)

Lead-bearing substances prohibited. It shall be unlawful and a violation of this section for any person to knowingly:

(1)

Offer for lease, rent or occupation any residential dwelling, which has, in or upon any open or exposed surface, any lead-bearing substance, in a deteriorated condition so as to create a lead poison hazard;

(2)

Erect, construct, renovate or repair any dwelling in a manner inconsistent with Environmental Protection Agency standards regarding the removal, remediation or use of lead-bearing substances or in such a manner as to create a lead poisoning hazard;

(3)

Apply to any toy, article of furniture, fixture, or interior or exterior surface of any residential dwelling any substance containing lead components of which the lead content is in a quantity determined by Environmental Protection Agency guidelines and regulations and applied by the Environmental Protection Agency, the state department of health and environment, or the unified government health department, to constitute a health hazard; or

(4)

Offer for sale or sell any lead-bearing paint or surface coating material intended for or packaged in a form purportedly suitable for use on toys, furniture, fixtures, or in or around residential dwellings which contain lead compounds of which the lead content is in a quantity determined by Environmental Protection Agency guidelines and regulations, and as applied by the Environmental Protection Agency, the state department of health and environment, or the unified government health department, to constitute a health hazard.

(f)

Retaliation for reporting of hazard prohibited.

(1)

A landlord may not increase the obligations of a tenant, decrease the services provided to a tenant, or harass, evict or threaten to evict a tenant because:

a.

The tenant has complained in good faith to a governmental agency or entity of a violation of the provisions of this section;

b.

The tenant has complained in good faith to the landlord or his agent of a violation of the provisions of this section;

c.

The tenant has complained in good faith to or notified a governmental agency or entity, public health authority, or the landlord or his agent about a possible lead poison hazard.

(2)

Any landlord or his agent who acts in violation of this subsection shall be in violation of this section and subject to the penalties provided herein.

(g)

Violation; penalty. Any person convicted of violating this section shall be guilty of an unclassified misdemeanor punishable by not more than six months imprisonment, by a fine of not more than $500.00, or by both.

(h)

Jurisdiction. The municipal courts of the unified government shall have the jurisdiction to hear alleged violations of this section and issue all warrants, writs and orders necessary for its enforcement.

(i)

Furnishing of Environmental Protection Agency guidelines. The unified government health department shall supply appropriate unified government offices with literature and publications setting forth the Environmental Protection Agency guidelines and regulations for the lawful utilization and remediation of lead-bearing substances. Said offices shall make those publications available for distribution, review and acquisition by and to interested parties, including, but not limited to, property owners, landlords, builders, and home and building renovation firms.

(Code 1988, § 17-30; Ord. No. O-19-98, § 1, 5-7-1998)