City of St. Louis v. Brune, No. 58550

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 520 S.W.2d 12
• Parties: CITY OF ST. LOUIS, Missouri, Respondent, v. Paul F. BRUNE, Appellant
• Decision Date: 10 March 1975
• Docket Number: No. 2,No. 58550

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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.

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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The ordinance, 56091, approved January 27, 1972, repealed a prior ordinance and provided in substance (in so far as necessary here) as follows: that its purpose was 'to detect, treat and prevent lead poisoning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

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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;...