Digital Extra: Poisoned

5.29.2001
Dueling bills on lead paint pit advocates
• Limiting the liability of landlords who own houses where children have been poisoned is at the center of the debate.

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- Ten years ago, Sen. Thomas J. Izzo, D-Cranston, and Roberta Aaronson were comrades in the battle to reduce childhood lead poisonings in Rhode Island.

Aaronson, head of an advocacy group called the Childhood Lead Action Project, or CLAP, says Izzo was her champion -- one of the few legislators willing to tackle an unpopular issue.

Izzo says Aaronson was his mentor.

She taught him about the complexities of the lead-paint problem, invited him to serve on CLAP's board of directors, and later accepted his invitation to serve on his special lead commission drafting new legislation.

Now these two advocates are locked into such bitterly opposing positions on lead-paint reform legislation that they are questioning each other's motives. Aaronson says Izzo caved in to business interests; Izzo says Aaronson and her group have lost their focus.

More important, many fear their battle may result in no reform legislation this year.

Though Izzo's reform bill swept through the Senate last week in a 46-1 vote, it may die once again in the House -- for the third year in a row -- because of opposition from Aaronson and her supporters.

This year CLAP has proposed its own legislation, which takes a much tougher stance against negligent landlords. But even if CLAP's legislation wins House approval, there is little chance it can succeed in the Senate. Last week, a Senate committee unanimously sided with Izzo's bill over the one proposed by CLAP.

Both agree something new needs to be done to reduce the number of children poisoned by lead paint. Last year alone, nearly 3,000 children were lead poisoned in Rhode Island, most probably by lead paint and dust wearing off the state's vast stock of poorly maintained, older houses. Aaronson acknowledges that she favors parts of Izzo's bill.

So why the split?

Aaronson wants to make it easier for tenants who have been poisoned to sue their landlords. And she wants companies that insure landlords to be required to provide coverage for damages from lead. Denying the right to sue, she says, denies victims their civil rights.

Izzo insists that landlords who make a good-faith effort to make their houses safe from lead should be protected from unlimited damage suits. Limiting liability helps guarantee affordable insurance for everyone, he maintains. Mandating insurance while allowing unlimited liability, he says, will simply lead to either expensive coverage, or none.

He attributes Aaronson's concerns to her constituency. "They are an agency where people come if their kids have been poisoned. Many people they work with are disadvantaged. They see rich companies and banks. They feel the advantaged haven't alleviated their conditions, so they owe something to the disadvantaged. One can understand and appreciate that point of view."

But Izzo said he needed to craft a bill that would work for all of Rhode Island, rather than reflect conditions in a few bad neighborhoods.

Izzo believes he has proposed a broad program that would reduce the poisonings and still provide affordable housing.

In 1991, Izzo and Aaronson joined many others in supporting legislation that mandated screening young children for lead poisoning and empowered the state Health Department to take action against landlords whose poorly maintained apartments caused children to be poisoned.

But it soon became obvious to many that the legislation gave landlords too broad a shield against lawsuits by lead-poisoned tenants. The so-called "innocent owner" provision of the 1991 law protects landlords from damage suits by tenants if they don't have a record of prior poisonings and if they make an apartment where a newly poisoned child lives lead-safe within 90 days. Add the innocent-owner shield to the fact that many landlords don't have good insurance coverage and many tenants don't have the patience to press lengthy lawsuits, and the result is only a handful of tenant-landlord lead damage suits won in the last decade.

Izzo recalls that even though the insurance companies, real estate agents, and bankers liked the innocent-owner provision, he sided with tort lawyers and lead advocates and filed a bill to eliminate the provision. He says then-Majority Leader Paul S. Kelly asked him to pull it back because the issue was so volatile. That's when he proposed his study commission that eventually drafted his current bill.

Izzo is proud of the diversity of the commission. He says there were bankers, lawyers, pediatricians, legislators, advocates, victims' parents, and insurance people. All had to make compromises. "I worked closely with Roberta and CLAP. There were lots of strong feelings, especially among the advocates. But my philosophy was, 'Don't bring to the table reasons why we can't do something; let's work together.' "

It was clear, Izzo said, that the state was investing little in housing. At the same time, market conditions were changing. Speculators paid top prices for tenements in the 1980s. Then the market softened and landlords had trouble paying mortgages -- or making repairs.

The commission agreed to set new, easier-to-achieve "control" standards to make houses safe. Property owners could do the work themselves, after taking a three-hour course, and then fill out papers certifying their properties as meeting the control standard.

As the various elements of the bill came into place -- requirements for education programs, a statewide housing strategy, a tougher stance against repeat offenders -- Izzo said he saw Aaronson grow increasingly concerned about the innocent owner and insurance issues.

He wanted more insurance coverage for more property owners, and to get that he said he had to agree to limit liability.

Aaronson said her disenchantment began with the way Izzo ran the commission. "I'm still disturbed with the way the commission was conducted. I'm disturbed with the product and the process; it was not open.

"The insurance industry was very clever. They set the tone. They put forth their platform early on."

Massachusetts has drastically lowered its lead-poisoning levels, she said, by coming down hard on landlords. The laws in Massachusetts, enacted some 20 years ago, were strict and strictly enforced. Rhode Island's current laws are poorly enforced, and she said Izzo's bill would continue to deny tenants their rights to take action against landlords.

Aaronson said more lawsuits shouldn't be the only strategy to enforce compliance, but they should be a tool that can be readily used.

She has voting records showing that many of the points hammered out at Izzo's meetings were by close votes. There was no consensus.

She felt parents weren't listened to at the meetings. Izzo says they simply stopped coming.

A Senate hearing on the two bills last week reflected the growing divide. State Health Director Patricia Nolan declined to support either bill.

Real estate agents opposed the Izzo bill. Insurance industry lobbyists were strongly in favor. Advocates lined up on both sides.

The testimony of Donald G. Gifford, a law professor who drafted Maryland's lead-paint legislation, drew opposite reactions from the two camps.

Gifford had high praise for Izzo's bill. "I have studied lead-paint poisoning in 50 states. I say if this were enacted, it would be one of the toughest, and most effective and balanced pieces of legislation in the country."

Gifford openly acknowledged that his trip was funded by Dupont, one of the lead-paint companies being sued by Rhode Island because it marketed some of the lead paint now causing so many problems.

He said Dupont wants to eliminate lead poisoning; it's lobbying for greater federal assistance; and it wants to change the focus from the lawsuit against the paint companies now "being thrashed out in Rhode Island courts."

Izzo was proud of Gifford's support. But Aaronson questioned the credibility of a witness financed by a paint company. What's more, she said he touted his experiences in Maryland, and many lead advocates think Maryland has been an abject failure at dealing with lead.

Izzo's bill -- there is no companion House version -- has been sent to the House Corporations Committee. No hearing date has been set.

The CLAP legislation has been referred to the House Finance Committee, and a hearing is tentatively scheduled for 1:30 p.m. today.

"I understand to this day their frustration," Izzo says of his critics at CLAP. "The state budget nowhere reflects a commitment to housing. But we are trying to craft something that is doable and more preventative."

Aaronson said she still hopes to reach a compromise with Izzo. "I think there needs to be an attempt to get both sides together -- a neutral third party."

But Izzo doesn't think that will work. "This is a tightly crafted piece of legislation. If you pull out a strand here and there, it changes the dynamics dramatically."