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A federal judge won’t dismiss a class action suit against the Philadelphia Housing Authority brought by current and former residents who claim the agency has failed to protect children from exposure to lead in rent-subsidized Section 8 housing in Philadelphia. Lawyers for PHA had urged Senior U.S. District Judge Clifford Scott Green to dismiss the suit, saying the plaintiffs had no case since their claims were premised on violations of federal regulations that have since been repealed, and can’t show any violations of the new regulations. Green, of the Eastern District of Pennsylvania, disagreed, saying “plaintiffs have alleged violations of practically every statutory provision related to the Section 8 Program.” Ruling on a motion to dismiss, Green said he was required to accept as true the plaintiffs’ allegation that PHA’s inaction has deprived them of “decent, safe and sanitary Section 8 housing” because they have minor children with elevated blood lead levels. Green also rejected the argument that the suit was fatally flawed because the plaintiffs never named the private landlords as co-defendants. PHA’s lawyers, Joel M. Sweet, Alan C. Kessler and Susan J. French of Philadelphia-based Wolf, Block Schorr and Solis-Cohen, argued that the landlords are “indispensable parties.” Green disagreed, saying the suit alleges that PHA’s failure to comply with federal regulations — specifically its passing on the costs of housing inspections to property owners and tenants — caused the landlords to refuse to rent to them because of the costs associated with renting to those who had children with elevated blood lead levels (EBLs). “Therefore, PHA’s argument, that Section 8 landlords are necessary and indispensable parties, is merely an attempt to shift the thrust of plaintiffs’ discrimination allegations, which are aimed solely at PHA’s alleged failure to comply with the federal lead-based paint regulations, to the conduct of the Section 8 landlords,” Green wrote. The ruling is a victory for plaintiffs’ attorneys Peter R. Kohn and Daniel Berger of Philadelphia-based Berger & Montague who filed the suit on behalf of Joan Paige and her child, Tisha Paige, and Kishia Hanible and her children, Dontay Hanible and Quintral Lowry. Green found that the Section 8 Program is designed to provide “decent, safe, and sanitary dwellings for families of lower income.” Under the program, local housing authorities, such as PHA, enter into annual contribution contracts with HUD. The housing authority uses the contribution contracts to enter into contracts with private landlords to subsidize the rental payments of low-income families who satisfy the criteria for Section 8 housing, such as the plaintiffs. Prior to the Section 8 housing property being certified as decent, safe and sanitary, Green found that the property must meet housing quality standards under federal regulations. The Lead-Based Paint Poisoning Prevention Act, Green said, requires the local housing authority to take actions to prevent lead-based paint exposure in children. Specifically, the regulations require Section 8 housing units to be inspected both initially and annually for the presence of lead-based paint. Plaintiff Paige claims that after she moved into lead-paint contaminated housing, she demanded testing and remediation, but was ultimately forced to move out because the landlord would not pay for the testing and she could not afford it. She claims she later lost her eligibility to participate in the Section 8 program as a result of moving away. In September 2000, after Paige’s suit was filed, HUD revised the regulations in the Section 8 program concerning lead-based paint. Prior to September 2000, the general requirements for testing and inspections for Section 8 housing provided that in Section 8 units constructed prior to 1978 where children under 6 years old resided, when the housing authority was notified of a child with an EBL, the paint in the house was to be tested with on-site procedures or by laboratory analysis of paint samples. Under the new regulations, when the housing authority is notified of a child with an EBL in a Section 8 unit, the housing authority must conduct a “risk assessment” within 15 days of the notification, which includes a visual inspection, limited wipe sampling and any other activity as may be deemed appropriate. In April 2001, the plaintiffs’ lawyers added Hanible as a co-plaintiff in order to include claims by a current resident since Paige no longer lives in Section 8 housing. The suit seeks purely injunctive relief, including a mandatory injunction requiring PHA to enforce the federal lead-based paint regulations; a fund for medical monitoring; and an order directing PHA to issue Section 8 housing vouchers to class members and to reimburse the payment of unsubsidized rent to those who lost their Section 8 eligibility and were thus terminated from the Section 8 Program due to PHA’s alleged violations of the pre- and post-September 2000 regulations. PHA’s lawyers argued that neither of the plaintiffs has standing to sue to obtain injunctive relief for the pre- and post-September 2000 regulations because the pre-September 2000 regulations have been superseded and because the plaintiffs have failed to allege any harm or any threat of future harm as a result of PHA’s noncompliance with the post-September 2000 regulations. But the plaintiffs’ lawyers argued that they have alleged sufficient past and present statutory and regulatory violations such that the court can infer that future violations threaten to continue, resulting in continued lead exposures and a compromised ability to obtain safe, lead-free Section 8 housing. Green sided with the plaintiffs, saying “despite PHA’s arguments, the court finds that plaintiffs sufficiently aver that the injuries suffered by them are redressable. Plaintiffs successfully claim that if PHA is required to abide by the regulations, lead-free Section 8 housing will become available to them.” The case is Paige v. Philadelphia Housing Authority.

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