Legislative paint package would exacerbate Public Nuisance ruling, impose incredible liability and set concerning precedent

By CMTA Staff

Capitol Update, April 20, 2018 Share this on FacebookTweet thisEmail this to a friend

by Dawn Koepke and Jarrell Cook

On the heels of a ruling by the courts last fall that interior lead-based paint is a public nuisance, an initiative was filed – the Safe Homes and School Act – to, among other provisions, override the public nuisance designation for lead-based paint in California. Of note, deeming lead-based paint a public nuisance has a host of incredibly problematic implications. Specifically, it means that every California homeowner who owns a home with interior lead based-paint could be subject to criminal liability, eminent domain, foreclosure, special taxes to resolve the nuisance, orders to vacate or demolish, loss of tax deductions, and mandatory disclosure on real estate transactions. Further, as public nuisances, their homes will be entered into a public database deeming it a public nuisance whether or not the paint has been properly maintained in line with current public health regulations. Ultimately, the public nuisance ruling undermines state laws which have been thoughtfully studied and reviewed, and already regulate lead-based paint in homes.

In response to the filing of the initiative, a group of legislators introduced a package of bills in March to fight the proposed November initiative based on concerns that the measure would alleviate the liability on the three paint companies found responsible. The measures include:

  • AB 2073 (Chiu) – would provide liability protection for homeowners who have lead-based paint in their homes and participate in the court-ordered abatement program
  • AB 2074 (Bonta) – would impose full, retroactive liability onto companies who manufactured, sold, distributed or promoted lead based paint, even if there is no proof those companies caused any harm or injury; further, in addition to product manufacturers, sellers and distributors, the bill would open up liability to those that “promote” a product including a host of other potentially culpable parties
  • AB 2803 (Limón) – would add additional legal protections for homeowners while compounding the public nuisance designation by also deeming the homes hazardous waste sites
  • AB 2934 (Stone) – would increase the number of lead-based paint inspectors
  • AB 2995 (Carrillo) – would define the mere presence of lead-based paint on a property as an “injury,” automatically defining every home in California with a mere drop of lead-based paint as an injured property, regardless of whether actual risks exist
  • AB 3009 (Quirk) – would add a new fee on manufacturers for all paint sold in California to fund cleanup and abatement of lead-based paint

Notably, while the legislative package would ensure liability for the manufacturers and others in the market chain associated with the product, it does nothing to address the overarching public nuisance designation the court ruling instituted. Rather the proposals retain the challenges homeowners will face relative to the public nuisance designation and associated implications including increased financial liabilities, decreased property values, forced public disclosures and the choice of submitting to government inspections or being placed on a public database for refusing an inspection.

CMTA is helping to lead opposition to AB 2074, AB 2803 and AB 2995 over serious concerns and implications not only relative to the incredible liability these bills would impose, but for the precedent they would set for virtually any other products in the market that are or have been at some point deemed a public health or environmental concern.

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