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Lead Paint Remediation in Day Care Facilities

lead paint

In the previous post, we discussed the duties of landlords in apartment buildings to notify tenants, inspect dwellings and common areas, and remediate lead-based paint found in certain situations (see Duties of Landlords to Remediate Lead Paint under New York City Law). As noted last month, the New York City Childhood Lead Poisoning Law of 2003 applies to day care facilities as well, although the requirements are somewhat different than what applies to apartments. This post discusses the law as it applies to day care facilities.

Which facilities are covered under the law?

The law is broadly defined to include any facility used to provide day care service. Likewise, “day care service” is also broadly defined to include “any service which, during all or part of the day, regularly gives care to seven or more children under six years of age, not all of common parentage, which operates more than five hours per week for more than one month a year.” A kindergarten or any higher grade in a facility operated by the board of education is specifically excluded from this definition.

Presumption of Lead-Based Paint

The law applying to apartment buildings covers all dwellings built before 1960, as well as dwellings built between 1960 and 1978 where the owner knows lead-based paint is present. Notice that no such date-range limitations are provided for day care facilities. Instead, the law for day care facilities includes all covered facilities regardless of when they are built and goes one step further by establishing a legal presumption that all paint on the interior of any structure erected prior to 1978 is lead-based paint.

To rebut this presumption, it is up to the owner or operator of the day care to submit a sworn statement supported by testing or sampling results that lead-based paint is not present. Such testing would have to be conducted by a certified inspector or risk assessor as described in the law.

Remediation Requirements

The law requires an absence of any peeling lead-based paint in any portion of the facility and also requires that any painted equipment be painted with lead-free paint. If any peeling paint is found, or if lead-based paint is used on any chewable surfaces or deteriorated, friction or impact surfaces, then the surface must be immediately remediated in an authorized manner. This requirement applies to any lead-based paint or paint where the lead content is unknown.

If you are the owner or operator of a day care facility in New York City and have a question about the application of the law to your facility, or if a complaint has been served against you, contact the Law Offices of Richard A. Fogel, P.C. to speak with an attorney who can help you.

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