City of St. Louis v. Brune

• Decision Date: 10 March 1975
• Docket Number: No. 2,No. 58550,58550,2
• Citation: 520 S.W.2d 12
• Parties: CITY OF ST. LOUIS, Missouri, Respondent, v. Paul F. BRUNE, Appellant
• Court: Missouri Supreme Court

Page 12

520 S.W.2d 12

CITY OF ST. LOUIS, Missouri, Respondent, v. Paul F. BRUNE, Appellant.

No. 58550.

Supreme Court of Missouri, Division No. 2.

March 10, 1975.

Jack L. Koehr, City Counselor, William Kornfein, Asst. City Counselor, St. Louis, for plaintiff-respondent.

J. E. Sigoloff, St. Louis, for defendant-appellant.

HENRY I. EAGER, Special Commissioner.

The defendant appeals from a conviction for the violation of a St. Louis City ordinance designed to prevent lead poisoning in dwelling units. He raises, though somewhat inadequately here, the constitutional validity of the ordinance. The issue was raised in the trial court. On that ground we accept jurisdiction.

The ordinance, 56091, approved January 27, 1972, repealed a prior ordinance and provided in substance (in so far as necessary here) as follows: that its purpose was 'to detect, treat and prevent lead poisoning resulting from the internal consumption (including without limitation ingestion, inhalation and absorption) of lead-bearing substances, which internal consumption is hereby declared to constitute a serious public health hazard'; that 'lead-bearing substance' (is) any paint, varnish, lacquer * * * which contains One Percent (1%) or more by weight of metallic lead * * *'; that no person shall use or apply such substances to certain designated surfaces or objects; that an 'exposed surface' is any interior or exterior surface of a dwelling or dwelling unit to which children may be commonly exposed; that the Health Commissioner may inspect dwellings and dwelling units for lead-bearing substances in or upon 'exposed surfaces' (and 'shall' do so where lead poisoning has been reported), remove samples, forward them for laboratory analysis and, upon a determination that lead-bearing substances are present, give notice in writing (of which there is no question here); that if such 'exposed surfaces' are not treated as required within 14 days of such notice, then the ordinance 'shall have been violated' and the Commissioner shall proceed to prosecute; that lead-bearing substances shall be either removed or securely and permanently covered, in a manner which will result in the safe elimination of 'flakes, chips, debris and other material,' and that the Commissioner shall determine the manner of treatment and may issue rules and regulations thereon.

Upon inspection of the premises in question (Apt. 2W 5136 Delmar) on December 22, 1972, by a city sanitarian or inspector, he found 'peeling or cracking or flaking' paint in eleven places, interior and exterior; these involved walls, windows and doors. He took samples, putting each one in a separate box and designating the place from which it came. The inspection was made at the request of the mother of a child 'that had been tested for lead poisoning.' Upon analysis five of the samples were found to contain lead in excess of one per cent, and were so reported. The inspector then had a notice prepared and mailed on January 17, 1973, stating the violations and requiring correction within 14 days. On February 2, 1973, he went back, inspected the place, and found that nothing had been done. A different inspector visited the premises on March 5, 1973, checked the reported violations, and found that no work had been done. She testified that 'a child there had been tested for lead and had elevated lead in his blood.' On March 9, 1973, another notice was sent to defendant, extending the time for correction of March 16th. On April 16, 1973, another inspector went out and, according to her testimony, found that no work had been done; another letter was sent, but on May 2nd no work had been done. The prosecution followed.

The defendant testified: that he gave the original notice to his workman-contractor and told him to do the work; that it was done within the 14 days, but that the workman had to 'go back' on some of it. That man testified: that he did the work within 14 days, but had to do some of it over; that this was in the 'spring,' but that he could not remember the dates; that some of the work was done when they were 'in court with that' (presumably on these proceedings). Apparently he burned off the paint in most of the offending places. It is obvious that the trial court did not believe the evidence, conclusory as it was, that the corrections were made within 14 days. Still another inspector found the work only partially done on June 6th; he followed it up, and it was finally completed about June 20, five months after the original notice.

There was medical testimony for the city as follows: that lead poisoning is a serious health hazard, and it is 'epidemic' in St. Louis; that it is particularly dangerous to children who crawl about, explore, and eat paint chips, or chew on painted windowsills or rails; that the principal danger is from ingesting the material, and this occurs in the older housing units; that very serious and permanent results are frequent in children, including retardation and other brain damage; that even one per cent of lead in paint is not safe; that the paint should be removed or covered; that children frequently visit or are kept in homes or apartments where they do not live and are thus exposed; that poisoning is more likely where there is peeling or chipping of paint, but that solid paint can be and is chewed; that in a children's clinic 14% of the patients were found to have abnormal lead levels.

The Health Commissioner testified to the methods required for correction, i.e., remove the lead paint if on woodwork, panel up to four feet if on walls; that painting over it is not sufficient, for it will come through and chip or peel again; that children bite into windowsills, etc.; that generally samples are only taken when the paint is chipping or peeling.

Defendant's points are, as somewhat condensed: (1) That the ordinance is arbitrary and unreasonable in that the means provided for its enforcement bear no real and substantial relationship to its declared purpose, because it requires no findings, (a) of conditions which would reasonably result in lead being internally consumed, and (b) that the premises be occupied by children. This is presumably a claim of the violation of due process rights. (2) That the ordinance is arbitrary and unreasonable because it fails to establish sufficient standards and delegates to the Health Commissioner the power to determine the standards and conditions which result in a violation. (3) That the ordinance is vague, unreasonable and arbitrary in that the offense is not described in such terms as may easily be understood, both as to its nature, and when a violation occurs.

1. Defendant (as we have designated him) does not claim that the purpose of the ordinance is illegal or invalid; it is, as declared, 'to detect, treat and prevent lead poisoning resulting from the internal consumption * * * of lead-bearing substances * * *.' Defendant says, first, that the means adopted are not adequately related to the purpose, because the ordinance does not require a finding of conditions that would reasonably result in the consumption of lead and, further, does not require that the premises be occupied by children. We may dispose of the latter element very readily. In housing of the type where lead poisoning is a hazard, the tenants move and shift around rapidly; if there are no children occupying the premises today, they may be there next week; also, children visit relatives, stay with baby-sitters, etc., and thus are frequently present in premises where they are not among the regular tenants. A specific requirement of the presence of children was not necessary. Defendant further argues that there can be no reasonable relationship between the mere presence of lead paint and the internal consumption thereof, unless the paint is peeling or chipping; this, because the principal danger is to children and they will not usually eat the paint unless it has chipped or peeled. There are adequate answers to this: first, the evidence shows without contradiction that children often chew painted windowsills, railings, etc., which are low enough for them to reach; and secondly, if paint is not peeling or chipping today or this week, it may be doing so next week or next month and there cannot reasonably be constant inspections. The ordinance was not rendered arbitrary or unreasonable (or unconstitutional) by the omission of any required findings on these two elements.

Defendant has cited: McDonnell Aircraft Corp. v. City of Berkeley, 367 S.W.2d 498 (Mo.1963), State ex rel. Doorack et al. v. Lewis, 439 S.W.2d 541 (Mo.App.1969), and 16 Am.Jur.2d, Constitutional Law, § 279, p. 541. The cases have no application here on their facts; the only possible application is the statement of the rule that an ordinance, adopted pursuant to the police power, must not be unreasonable or arbitrary, and that it must bear a reasonable relation to a legitimate end. These principles are well recognized. The McDonnell case involved an...