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AMENDED
May 26, 2005
H. 3582
Introduced by Reps. McLeod, Clark, J.E. Smith, Hosey, Moody-Lawrence, Anderson, Bailey, Bowers, Breeland, J. Brown, R. Brown, Davenport, Haskins, M. Hines and Sinclair
S. Printed 5/26/05--S.
Read the first time April 28, 2005.
TO AMEND ARTICLE 13, CHAPTER 53, TITLE 44 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO LEAD POISONING PREVENTION AND CONTROL SO AS TO RENAME THIS ARTICLE THE "CHILDHOOD LEAD POISONING PREVENTION AND CONTROL ACT", TO CLARIFY THAT THE ARTICLE ADDRESSES CIRCUMSTANCES RELATING TO CHILDREN AND LEAD POISONING, TO FURTHER SPECIFY SURFACES IN A DWELLING OR FACILITY THAT MAY CONTAIN A LEAD-BASED HAZARD, TO UPDATE REQUIREMENTS FOR EDUCATION AND PUBLIC AWARENESS PROGRAMS, INVESTIGATIONS, AND RECORDKEEPING, TO REVISE PROCEDURES FOR THE ISSUANCE AND EXECUTION OF AN ADMINISTRATIVE WARRANT TO INVESTIGATE LEAD-BASED HAZARDS, TO REQUIRE LABORATORIES TO REPORT TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL RESULTS OF ANY BLOOD LEAD ANALYSES CONDUCTED ON CHILDREN UNDER THE AGE OF SIX, TO DELETE OBSOLETE PROVISIONS, TO REVISE CRIMINAL PENALTIES, TO PROVIDE FOR CIVIL FINES, TO PROVIDE THAT A VIOLATION DOES NOT GIVE RISE TO A CAUSE OF ACTION, AND TO PROVIDE THAT THE PROVISIONS OF THIS ARTICLE ARE CONTINGENT UPON THE APPROPRIATION OR AVAILABILITY OF FUNDS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 13, Chapter 53, Title 44 of the 1976 Code is amended to read:
Section 44-53-1310. This article may be cited as the 'Childhood Lead Poisoning Prevention and Control Act'.
Section 44-53-1320. As used in this article, unless the context requires otherwise:
(1) 'Accessible surface' means any protruding interior or exterior surface that a child can mouth or chew including, but not limited to, an interior windowsill.
(2) 'Child' or 'children' means a person under six years of age.
(3) 'Child care facility' means a structure or portion of a structure in which children are present on a regular basis, including a structure used as a school, nursery, childcare facility, or other facility catering to the needs of children, including an outbuilding, fencing, or other structure used in conjunction with the structure.
(a)(4) 'Department' means the Department of Health and Environmental Control.
(b)(5) 'Dwelling' means a structure, all or part of which is designed or used for human habitation, including any a primary residence, secondary residence, outbuilding, fencing, or other structure used in conjunction therewith with the structure.
(c)(6) 'Dwelling unit' means any a room, group of rooms, or other areas of a dwelling.
(d) 'Exposed surface' means any interior surface of a dwelling, dwelling unit or child care facility and those exterior surfaces of such structures which are chewable by or readily accessible to children six years of age or younger, such as stairs, porches, railings, windows, doors and siding from ground level to a vertical distance of at least five feet, including those interior or exterior surfaces where peeling or chipping paint or other similar surface-coating material occurs or is likely to occur.
(7) 'Friction surface' means an interior or exterior surface subject to abrasion or friction including, but not limited to, a window or stair tread.
(e)(8) 'Householder' means the occupant of a dwelling or dwelling unit or his representative the occupant's agent, the owner of an unoccupied dwelling unit or his representative the owner's agent, or the owner or occupant of a day care childcare facility or his representative the owner's or occupant's agent.
(9) 'Impact surface' means an interior or exterior surface subject to damage by repeated impact on contact including, but not limited to, doors and door jambs.
(10) 'Lead-based hazard' means a condition that causes exposure to lead from lead-contaminated paint, lead-contaminated dust, bare lead-contaminated soil, or other lead-based substance that is deteriorated in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects.
(f)(11) 'Lead-base substance' means any paint, lacquer, glaze, or other similar surface-coating material and putty or plaster containing more than six hundredths of one percent (0.06 percent) lead by weight, calculated as lead metal in the total nonvolatile content or in the dried paint film or seven-tenths or more milligrams per square centimeter (0.7 mg/cm²) of lead in the dried paint film of paint already applied as measured by in situ analyzer device. Standards for lead-contaminated dust and lead-contaminated soil must be the same as those established by the United States Environmental Protection Agency.
(g)(12) 'Person' means any an individual, firm, corporation, association, trust, or partnership.
(h) 'Sale' or 'sell' means transfer or delivery for a consideration, barter, exchange or gift or offer therefor.
(i) 'Toys' means all articles intended for use by infants or children as playthings.
(j)(13) 'Lead poisoning' means a blood lead level at an elevation hazardous to health as established by the director Department of Health and Environmental Control.
(k) 'Director' means the Director of the Department of Health and Environmental Control.
(l) 'Child care facility' means a structure or portion thereof in which children under six years of age are present on a regular basis, including any structure used primarily as a residence, school, nursery, day care center, clinic, treatment center or other facility catering to the needs of children including any outbuilding, fencing or other structure used in conjunction therewith.
Section 44-53-1330. No person shall use or apply lead base substances:
(a) To toys, furniture, cooking, drinking or eating utensils or the interior or exterior surface or fixture of any dwelling, dwelling unit or child care facility.
(b) In or upon any fixtures or other objects used, installed or located in or upon any exposed surface of a dwelling, dwelling unit or child care facility or intended to be so used, installed or located.
Section 44-53-1340. No person shall sell, offer for sale, deliver, give away or possess with intent to sell, deliver or give away any of the following:
(a) Toys, furniture, cooking, drinking or eating utensils if the exterior finish contains a lead base substance.
(b) Fixtures or other objects intended to be used, installed or located in or upon any exposed surface of a dwelling, dwelling unit or child care facility if the exterior finish contains a lead base substance.
(c) Any lead base substance for use on any exposed surface of any dwelling, dwelling unit or child care facility. The director by regulation may exempt from the provisions of this item lead based paints that are not intended or suitable for use on or within residential premises which are not advertised or labeled as intended or suitable for such uses and which are not sold to the general public on a retail basis if he finds that the sale or use of such paints will not result in the exposure of children younger than six years of age to the paints and will not result in an additional danger to life or health for such children or for the general public. Also by regulation, he may exempt from the provisions of this item lead based ceramic glazes or the raw lead and raw lead compounds utilized in the home manufacturing of glazes on such terms as he finds will not result in additional danger to life or health.
The provisions of this section shall not apply to the sale of products which conform to the standards for the sale of lead base paint products under federal law.
Section 44-53-1350. The provisions of this article shall do not apply to any items which that are exempt pursuant to federal law.
Section 44-53-1360. (A) The director shall department may establish a program for the early diagnosis of cases of childhood lead poisoning. The program shall must provide for systematic examination for lead poisoning of all children at risk under six years of age residing within the State. Examinations shall must be made by such means and at such intervals as the director shall determine department determines to be medically necessary and proper.
The program, to the extent that all children residing within the State are not systematically examined, shall must give priority in examinations to those children residing, or who have recently resided, in areas where significant numbers of lead poisoning cases have been reported recently or where other reliable evidence indicates that significant numbers of lead poisoning cases may be found.
(B) When the department is informed notified of a case of lead poisoning pursuant to Section 44-53-1380 or otherwise, the director or his representative department shall cause to have examined examine or refer for examination within thirty days all other children under six years of age, and such other children as he may find the department finds advisable to examine, residing or recently residing in the household of the victim or in all other dwelling units in the dwelling of the victim or in a childcare facility occupied by the victim, unless the parents or guardian of the child objects to the examination because it conflicts with his or her religious beliefs or practices.
The department shall maintain comprehensive records of all examinations conducted pursuant to this section. The records shall be geographically indexed in order to determine the location of areas of relatively high incidence of lead poisoning. The records shall be public records but the name of the persons examined shall not be included. A summary of the results of all examination conducted pursuant to this section shall be released yearly to all interested parties or more frequently if the director so determines.
All cases or probable cases of lead poisoning, as defined by regulation of the director, found in the course of examinations conducted pursuant to this section shall be reported immediately to the affected person, to his parent or legal guardian if he is a minor, and to the director. The director or his representative shall inform such persons or agencies as he deems advisable of the existence of such case or probable case. The name of any person contracting lead poisoning shall not be included unless the director determines that the inclusion is necessary to protect his health and well-being. These records are strictly confidential and may not be released except as required by law or by court order.
Section 44-53-1370. The department shall may institute an educational and publicity program in order to inform the general public, and particularly parents of children residing in areas of significant exposure to sources of lead poisoning; teachers, social workers and other human service personnel; owners of residential property, particularly property constructed previous to 1945; and health services personnel, particularly interns, residents and other intake personnel at major hospitals, of the dangers, frequency and sources of lead poisoning and the methods of preventing such poisoning. a childhood lead poisoning prevention education program. The program shall emphasize the dangers and sources of lead poisoning and the methods of lead poisoning prevention and lead-based hazard remediation.
Section 44-53-1380. (A) Whenever any If a physician, hospital, public health nurse, or other diagnosing person or agency knows or has reason to believe that any person a child he or she examines or treats has or is suspected of having lead poisoning, such the person shall notify the department within seven days give notice thereof to the department. The department shall specify the procedure to be followed in making the reports and shall provide the necessary forms. When the reports are received, the department shall, by laboratory work and otherwise, assist the attending physician or other person in determining whether the case is one of lead poisoning and, if so, the source of the poison.
The director shall maintain comprehensive records of all reports submitted pursuant to this section. The records shall be geographically indexed in order to determine the location of areas of relatively high incidence of lead poisoning. The records shall be public records but the name of any person contracting lead poisoning shall not be included.
(B) A laboratory doing business in this State shall notify the department of the results of any blood lead analyses conducted on children under six years of age; this notification must be submitted to the department within thirty days of completion of the analysis.
Section 44-53-1390. When the department is informed notified of a case of lead poisoning case, pursuant to Sections 44-53-1360 and 44-53-1380, or otherwise, any authorized representative of the department, upon presentation of the appropriate credentials to the householder, and with the consent of the householder or his agent, may enter and inspect a private a dwelling, dwelling unit, or childcare facility at reasonable times and in a reasonable manner for the purpose of ascertaining the presence of lead base substances conducting a lead-based hazard investigation and may remove samples of objects necessary for laboratory analysis. If the householder refuses admission to the premises, the inspector department shall may obtain an inspection warrant before he can inspect administrative warrant from a court of competent jurisdiction to investigate the premises. This section also applies to secondary residences and any other premises routinely occupied by the child.
Upon the request of any occupant, the director or his representative shall cause to have the occupant's premises inspected within a reasonable time, not to exceed ten days, unless systematic inspection of the areas in which the person requesting the inspection resides is scheduled within thirty days, in which case the inspection may be deferred up to twenty additional days.
Section 44-53-1400. An administrative inspection warrant may be issued by any magistrate whose territorial jurisdiction encompasses the property to be inspected. The magistrate shall issue the warrant upon a showing that a victim of lead poisoning resides, or has recently resided, in the dwelling or child care facility or the magistrate shall issue the warrant if the owner of the property requests the premises be inspected because a child under the age of six years resides there. The issuance and execution of an administrative warrant to investigate must be as follows:
(1) A judge or magistrate of a court having jurisdiction where the investigation is to be conducted, upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting investigations authorized by this article or regulations promulgated pursuant to this article and removing samples of objects from the premises appropriate to the investigations. For the purpose of this section, 'probable cause' exists when the circumstances indicate there is reason to believe a child has been exposed or is at risk of being exposed to a lead-based hazard at the premises specified in the warrant.
(2) A warrant must be issued only upon an affidavit of a department employee designated and having knowledge of the facts alleged, sworn to before the judge or magistrate and establishing the grounds for issuing the warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge or magistrate shall issue a warrant identifying the area, premises, building, or conveyance to be investigated, the purpose of the investigation, and, where appropriate, the type of property to be investigated. The warrant must authorize the removal of samples of objects for laboratory analysis, where appropriate. The warrant must be directed to a designated department employee to execute it. The warrant must state the grounds for issuance and the name of the person or persons whose affidavit has been taken in support of the warrant. The warrant must command the person to whom it is directed to investigate the area, premises, building, or conveyance identified for the purpose specified and, where appropriate, authorize removal of samples of objects for laboratory analysis. The warrant must direct that it be served during reasonable hours and must designate the judge or magistrate to whom it must be returned.
(3) A warrant issued pursuant to this section must be executed and returned within ten days of the date of issuance.
(4) The judge or magistrate who has issued a warrant under this section shall attach to the warrant a copy of the return and all papers filed in connection with the warrant and shall cause these papers to be filed with the court which issued the warrant.
Section 44-53-1410. An inspection warrant shall be issued only if it meets the following requirements:
(1) It shall be signed by the issuing official and shall bear the date and hour of its issuance above the signature with a notation that the warrant is valid for only twenty-four hours following its issuance, excepting Saturdays, Sundays and holidays.
(2) It shall describe, either directly or by reference to the sworn affidavit of the person seeking the warrant, the property where the inspection is to occur and be accurate enough in description so that the executor of the warrant and the householder can reasonably determine from it what property the warrant authorizes an inspection of.
(3) It shall indicate the conditions, objects, activities or circumstances which the inspection is intended to check or reveal.
(4) It shall be attached to the sworn affidavit of the person seeking the warrant who shall establish by his sworn affidavit that there is probable cause for believing that there is a condition, object, activity or circumstance legally justifying an inspection of the property and the basis for the establishment of the grounds described in Section 44-53-1400.
Section 44-53-1420. Any inspection warrant shall be valid for only twenty-four hours after its issuance, excluding Saturdays, Sundays and holidays. It shall be personally served upon the householder between the hours of 8:00 a.m. and 8:00 p.m. and shall be returned within forty-eight hours, excluding Saturdays, Sundays and holidays.
Section 44-53-1430. (A) Whenever If a child under six years of age resides in any a dwelling or dwelling unit or is routinely present at a childcare facility in which any paint or other similar surface-coating material contains dangerous levels of lead which is on an exposed surface, as defined pursuant to Section 44-53-1320 a lead-based hazard has been identified, the department shall:
(a)(1) The department shall post in or upon the dwelling, dwelling unit, or child care facility, in a conspicuous places place, notice of the existence of the substances which constitute a public health nuisance hazard. The notice shall must not be removed until the department states determines that the lead base substances no longer constitute a public health nuisance identified lead-based hazard has been remediated.
(b)(2) The department shall give written notice of the existence of the substances lead-based hazard to all persons residing in the householder occupying the dwelling, dwelling unit, or childcare facility.
(c)(3) The department shall give written notice of the existence of the substances lead-based hazard to the property owner or managing agent and order that the lead base substance on the exposed surface hazard be removed, replaced or securely and permanently covered within thirty days of receipt of notice. If, at the discretion of the director, the condition cannot be corrected within thirty days, an extension of reasonable time may be granted remediated within a reasonable period of time.
(B) The property owner, agent or person in control of any a building subject to this article shall have has the right to appeal within thirty days from the decision order of the department to any court of competent jurisdiction, stating in the notice of appeal the grounds therefor, and the court shall affirm, modify or revoke the decision of the department within thirty days of receipt of the notice of appeal as a contested case.
If, before the end of the thirty-day period or extension, the owner sells the dwelling or child care facility, he shall notify the prospective buyer of the lead problem and the new owner shall assume the responsibility of carrying out the requirements of this section within the specified time period.
Section 44-53-1440. No A person shall knowingly must not rent or offer for occupancy a dwelling or dwelling unit to be occupied by children under six years of age which has been posted and ordered cleared remediated of harmful lead-based base substances in accordance with Section 44-53-1430 hazards until the identified hazards have been remediated. If the presence of lead base paint or other surface-coating materials is unsuspected and the lead-based hazard becomes known when the dwelling or dwelling unit is already rented to a family with children under six years of age, the family of the children shall must not be evicted for that reason unless a court order is issued pursuant to Section 44-53-1470(2). The owner and occupant of the dwelling or dwelling unit shall be given written notice by the director or his representative advising of the existence of such substances in the dwelling or dwelling unit and ordering that within thirty days such lead base substances be removed, replaced or securely and permanently covered.
Section 44-53-1450. The director department may adopt such promulgate regulations as may be necessary to carry out the intent and provisions of this article; provided, however, that the promulgation of any regulation which is contrary to or inconsistent with federal law shall be null and void.
Section 44-53-1460. Nothing in this article shall may be interpreted or applied in any manner to defeat or impair the right of any a person, municipality, or other political entity to maintain an action or suit for damages sustained, or equitable relief of, for violation of an ordinance by reason of, or in connection with, any a violation of this article.
Section 44-53-1470. If the owner of any residential property or child care facility who is notified pursuant to this article of a dangerous level of lead in paint or other surface-coating material present upon his premises refuses or does not satisfactorily correct or remove such dangerous conditions within the time specified by Section 44-53-1430, the director or his representative may:
(1) Cause such building, structure or portion thereof to be made safe. For the purpose of removing the public health hazard, the director or his representative may immediately enter the structure or go upon the land on which it stands and with such assistance and at such cost as he deems necessary remove the nuisance. Cost incurred, if not paid by the property owner or agent, shall be borne by the State Budget and Control Board which shall acquire a lien on the property to the amount of such costs, which shall be recorded in the office of the clerk of court or register of deeds in the county where the property is situated and the lien shall be enforceable as a tax lien, junior in priority to any other prior recorded lien or mortgage on the property.
(2) Upon request, and with the consent of the owner or his representative, obtain an order from a court of competent jurisdiction that the structure be declared unfit for human habitation and shall not be leased, rented or otherwise occupied as a residence or child care facility until such time as the lead poisoning conditions are abated.
Section 44-53-1480. Any A person violating the provisions who knowingly violates a provision of this article or an order of the department issued pursuant to this article shall be deemed is guilty of a misdemeanor and, upon conviction, shall must be fined not more than two hundred dollars or be imprisoned for not more than thirty days the maximum allowed by the magistrates' courts in this State. Each day's violation shall constitute constitutes a separate offense. Violations existing within individual Isolated lead-based hazard violations existing in dwellings, dwelling units, or childcare facilities shall must be considered separate violations. No person shall be convicted of violating Section 44-53-1340 unless it is proved that he had actual knowledge that he was violating any of the acts prohibited by Section 44-53-1340.
Section 44-53-1485. A person who violates a provision of this article or a final determination or order of the department issued pursuant to this article is subject to a civil penalty not to exceed one thousand dollars a day.
Section 44-53-1490. (A) A violation of this article does not give rise to a private cause of action. However, this article does not prohibit a person from commencing an action for damages or injunctive relief pursuant to other law; and this article does not prohibit an action by a municipality or other governmental entity for damages or injunctive relief or an action authorized by other law or regulation.
(B) This section does not prohibit the introduction of evidence of failure to comply with the provisions of this article in establishing the appropriate standard of care in the other action.
Section 44-53-1495. The provisions of this article are contingent upon the appropriation of state general funds or the availability of financial support from other sources."
SECTION 2. This act takes effect upon approval by the Governor.
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