Effective 28 Aug 2005

701.308. Abatement of hazard by owner — no eviction, effect — failure to abate, violation, order of compliance — relocation — report of violation. — 1. Upon receipt of written notification as described in section 701.306, of the presence of a lead hazard, the owner shall comply with the requirement for abating or establishing interim controls for the lead hazard in a manner consistent with the options provided by the department and within the applicable time period. If the dwelling or child-occupied facility is a rental or leased property, the owner may remove it from the rental market.

2. Except as provided in subsection 1 of this section, no tenant shall be evicted because an individual with an elevated blood lead level or with suspected lead poisoning resides in the dwelling, or because of any action required of the dwelling owner as a result of enforcement of sections 701.300 to 701.338. The provisions of this subsection shall not operate to prevent the owner of any such dwelling from evicting a tenant for any other reason as provided by law.

3. No child shall be denied attendance at a child-occupied facility because of an elevated blood lead level or suspected lead poisoning or because of any action required of the facility owner as a result of enforcement of sections 701.300 to 701.338. The provisions of this subsection shall not prevent the owner or agent of any such child-occupied facility from denying attendance for any other reason allowed by law.

4. A representative of the department, or a representative of a unit of local government or health department licensed by the department for this purpose, is authorized to reenter a dwelling or child-occupied facility to determine if the owner has taken the required actions for abating or establishing interim controls for the lead hazard in a manner consistent with the options provided by the department and lead hazards have been reduced to an acceptable level. If consent to enter is not granted, the representative of the department, local government, or local health department may petition the court for an order to enter the premises to determine if the owner has taken the required actions for abating or establishing interim controls for the lead hazard in a manner consistent with the options provided by the department, and provided that the lead hazards have been reduced to an acceptable level. The court shall grant the order upon a showing that the representative of the department, local government, or local health department has attempted to notify the dwelling's owner or adult occupant in writing of the time and purpose of the reentry at least forty-eight hours in advance.

5. Upon reentry, if the department or a representative of a unit of local government or local health department licensed by the department for this purpose finds that the owner has not taken the required actions for abating or establishing interim controls for the lead hazard in a manner consistent with the options provided by the department, and lead hazards have not been reduced to an acceptable level, the owner shall be deemed to be in violation of sections 701.300 to 701.338. Such violation shall not by itself create a cause of action. The department or the local government or local health department shall:

(1) Notify in writing the owner found to be causing, allowing or permitting the violation to take place; and

(2) Order that the owner of the dwelling or child-occupied facility shall cease and abate causing, allowing or permitting the violation and shall take such action as is necessary to comply with this section and the rules promulgated pursuant to this section.

6. If, upon reentry, the lead hazard has not been reduced to an acceptable level, the following steps may be taken:

(1) The local health officer and local building officials may, as practical, use such community or other resources as are available to effect the relocation of the individuals who occupied the affected dwelling or child-occupied facility until the owner complies with the notice; or

(2) The department or representative of a unit of local government or health department licensed by the department for this purpose may report any violation of sections 701.300 to 701.338 to the prosecuting attorney of the county in which the dwelling or child-occupied facility is located and notify the owner that such a report has been made. The prosecuting attorney shall seek injunctive relief to ensure that the lead hazard is abated or that interim controls are established.

7. In commercial lead production areas, if the department identifies lead hazards due to paint, mini-blinds, or other household products/sources in a property where a child has been identified with an elevated blood level, the owner shall comply with the requirement for abating or establishing interim controls for the above-stated hazards, in a manner consistent with the recommendations described by the department and within the applicable time period. Residential property owners in commercial lead production areas shall not be deemed in violation pursuant to this section after compliance with the requirement for abating or establishing interim controls established by the department per the initial risk assessment, or made to pay for any type of lead remediation necessary due to the commercial lead production and transport. If the residential property is owned by a commercial lead production or transport company, which has not taken the required actions for abating or establishing interim controls for the lead hazard in a manner consistent with the options provided by the department and the lead hazards have not been reduced to an acceptable level, the commercial lead production or transport company shall be deemed to be in violation of sections 701.300 to 701.308.

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(L. 1993 S.B. 232 § 5, A.L. 1998 H.B. 977 & 1608, A.L. 2005 S.B. 95)