The San Marino City Council unanimously tabled a proposed ordinance, which, according to Planning and Building Director Aldo Cervantes, is intended “to ensure the protection of our public health with respect to lead hazards.”
“The ordinance will mandate compliance with the Environmental Protection Agency’s Federal Code 40, [or the Lead-Based Paint Renovation, Repair and Painting Rule], which requires anyone performing a renovation or paint project to be certified to abate lead hazards on the property if found,” he stated.
Despite the intention of the ordinance, the council felt the proposed addition to the city’s municipal code lacked a stringent enforcement mechanism and penalty.
“This is a good start, in my opinion. The problem is it has no teeth,” said Council Member Steve Talt. “It should state in our ordinance, ‘If you don’t comply with [the EPA code], you’re in trouble.’”
City Attorney Steven Flower recognized that the ordinance, which also aims to educate contractors about the need to comply with Federal code, was “an initial first step.”
“Our concern was, if we were to try to directly enforce the EPA’s Federal Rule, whether or not we’d be preempted,” Flower explained.
Talt acknowledged the validity of the preemption concern, and continued to characterize potential problematic scenarios in San Marino.
“This happens probably daily in the city of San Marino, we have building codes [and] we have construction codes that are violated left and right,” Talt said, noting as an example that some contractors place portable bathrooms in the front yard during a construction despite local code that prohibits it.
He continued, “This is serious enough where we should put some teeth into the ordinance if we’re going to adopt it. Let’s not go halfway. Let’s make sure that we’ve got a hammer to hit over somebody’s head if they’re going to violate these rules.”
Mayor Richard Sun shared Talt’s response.
“It seems like there’s not enough tools we could use to enforce this particular ordinance,” Sun commented.
“Why don’t we get it done completely in one shot instead of coming back to amend it?” he added. “I think we should have some teeth in there—some kinds of penalties—because this is a health hazard issue.”
Council Member Allan Yung echoed his colleagues’ statements, after which Flower clarified the city’s ability to enforce the proposed lead ordinance.
Flower first stated that staff “will come back with more inspection enforcement” and review enforcement mechanisms in other cities with stringent lead ordinances.
Then he explained, “This ordinance can be enforced. What this ordinance does, however, is not directly enforce the EPA rule. That’s a Federal Rule. We can’t directly enforce Federal law. What this does is require the contractor to come in on an annual basis—which will probably tie administratively to business license renewal—and certify that if they’re going to do this work as subject to the rule, they’re certified to do it.”
Cervantes confirmed in an interview with The Tribune that the business license renewal process would capture a majority of contractors, adding that his department is working with EPA to add to the ordinance.
“If they provide the certification, or if they’re going to go and do work without a building permit, we can enforce that. That’s a misdemeanor. That is a criminal offense,” Flower added. “We have enforcement for what this ordinance does. What I’m hearing is you want to go further than what this ordinance does.”
Cervantes added that the city could fine and/or issue a stop-work notice in accordance with local building codes if the city discovered somebody to be in violation of the proposed ordinance.
Claiming the last word, Talt reiterated the council’s direction to staff.
“It’s just that if they get caught, they have to pay for it,” he concluded.