Nearly a year and a half after the Lead Hazard Mitigation Law was initially scheduled to have taken effect, its constitutionality is being challenged in court.

Superior Court Judge Stephen J. Fortunato Jr. agreed yesterday to hear a case brought by property owners who claim that exempting two- and three-family, owner-occupied properties from the new law's requirements violates their rights to equal protection under the state Constitution.

Fortunato denied their request for a temporary restraining order, meaning the law will go into effect on Tuesday.

The new mitigation law requires landlords to take a three-hour lead education class and to have their rental units inspected for hazardous conditions caused by lead paint.

The law also exempts housing that is legally restricted to residents 62 and older, housing that has previously been certified as lead safe or lead free, and temporary housing not rented to the same person for more than 100 days per calendar year.

The plaintiffs, 17 members of a property owners' organization led by state Rep. Joseph A. Trillo, R-Warwick, claim that the exemption is arbitrary and that it discriminates against landlords who do not live in their properties, as well as those who live in larger buildings.

Joseph Larisa Jr., the lawyer for the property owners, argued that where the owner lives and the number of units in a building have no bearing on the likelihood of a child being harmed by lead paint.

The suit names as defendants Attorney General Patrick C. Lynch, Health Director David R. Gifford and Rhode Island Housing and Resources Commission Chairwoman Susan Baxter. They were represented in court by Special Assistant Attorneys General Terence J. Tierney and Thomas A. Palombo.

Tierney pointed to the plaintiffs' lawsuit itself, which used statistics indicating that 48.8 percent of 126 children who tested positive for lead poisoning lived in owner-occupied buildings.

Although it isn't a majority, "a significant number of children in owner-occupied apartments are poisoned by lead," Larisa replied. "Can you agree?" he asked the defense.

Tierney argued that more data was needed. Even the information he cited from the lawsuit, he said, was derived from "a subset of a subset of a subset of lead poisonings" -- those that were bad enough to warrant intervention by the state.

He told the judge that the reasoning behind the owner-occupied exemption stems from the owner's interest in the community and in his or her own health.

They "have an investment in the neighborhood." he said. "Absentee owners come into town and pick up their check."

After the hearing, both sides seemed satisfied with the outcome. Michael J. Healey, spokesman for the attorney general, said Lynch was pleased that the judge didn't strike down the mitigation law.

Trillo said Fortunato "hit the nail on the head" when he advised the state that, although the burden is on the plaintiff to prove there is no causal relationship between an owner living in a two- or three-unit building and a child avoiding lead poisoning, "the state would not be well advised to sit back and wait for the plaintiffs to do all the work."

The Lead Hazard Mitigation Law, initially scheduled to go into effect in July 2004, was stalled twice while health advocates, property owners and other stakeholders worked toward compromise.

The hearing is scheduled to begin Dec. 7.

Brandie Jefferson has a fellowship with the Metcalf Institute for Marine and Environmental Reporting. She can be reached at bjeffers [at] projo.com.