Opinion
No. CV03 11242
September 29, 2004
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS #14
The motion to dismiss presently before the court arises out of an action by the plaintiff, William Campbell, the Director of Health of the city of Danbury, against the defendants, John Zdanowski and Helen Zdanowski, for their alleged failure to comply with an order to abate lead paint found in the defendants' rental property known as 15 1/2 Padanaram Road in Danbury, Connecticut (the premises).
The plaintiff alleges the following facts in the complaint. On March 15, 2001, inspectors from the Danbury health and housing department observed defective, chipped and peeling paint at the premises in violation of section 10-4(5) of the Danbury Code of Ordinances (the code). At the time, a child under six years of age was living at the premises. On March 17, 2001, the plaintiff issued the defendants a notice by certified mail, ordering the defendants to abate all lead-based surfaces in the premises by May 31, 2001. The complaint further alleges that a reinspection was performed on May 7, 2003, at which time the lead abatement had not been corrected. In the complaint, returnable on June 10, 2003, the plaintiff seeks, inter alia, damages and an injunction ordering the defendants to comply with the order of abatement.
Danbury Code of Ordinances § 10-4(5)(b) provides as follows: "The owners of all dwellings shall comply with the requirements of Section 19a-111c of the Connecticut General Statutes concerning the removal of toxic levels of lead from dwellings, as the same may be amended from time-to-time.
The director of health may require any such owner to submit evidence of compliance with the requirements of the aforesaid provisions of the Connecticut General Statutes from qualified testing firms acceptable to the director."
Although the complaint alleges that the inspectors confirmed the presence of a child under the age of six years in the dwelling on May 15, 2001, at the hearing on September 20, 2004, the parties stipulated that a child under six was living at the premises on March 15, 2001, and vacated the premises sometime in November 2001.
The defendants filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction, for the reason that there are no longer any children under the age of six occupying the premises. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. . . . An issue is moot when the court can no longer grant any practical relief . . . Whenever a claim of lack of jurisdiction is brought to the court's attention, it must be resolved before the court can proceed." (Internal quotation marks omitted.) Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 81 Conn.App. 659, 661, 841 A.2d 246 (2004).
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250, 851 A.2d 1165 (2004). The parties have stipulated that a child under six lived at the premises at the time the defendants received the order to abate the lead paint. Despite the order to abate, the defendants took no action to remove the lead paint. The parties have stipulated for the purposes of this motion that the child lived at the premises until sometime in November 2001. Taking the facts alleged in the complaint to be true, a child under six resided in the subject premises from the time of the initial inspection in March 2001, until sometime in November 2001, for over seven months after the order to abate.
General Statutes § 19a-111c provides in relevant part that "[t]he owner of any dwelling in which the paint, plaster or other materials contain toxic levels of lead and in which children under the age of six reside, shall abate or manage such dangerous materials consistent with regulations adopted pursuant to this section." In their motion to dismiss, the defendants argue that because the child under six vacated the premises, § 19-111c no longer applies.
The defendants rely on Campbell v. Six Fifth Avenue Corp., Superior Court, judicial district of Danbury, Docket No. 956978 (July 3, 1996, Mihalakos, J.) (17 Conn. L. Rptr. 274) in support of their argument. In Campbell, a trial before the court, the court found that the Danbury Department of Health inspected a premises inhabited by a family with children under the age of six. Id. The city ordered the defendant property owner to test the premises for lead paint. Id. After the inspection, but before the positive lead test results were received by the owner, the minor children vacated the premises. Id. As in the present case, the defendant in Campbell claimed mootness. In Campbell, Judge Mihalakos entered judgment for the defendant, holding that Connecticut General Statutes § 19a-111c "is a preventative measure specifically directed to children under age because of their greater susceptibility to lead poisoning. The logical sequence would be that once the child is gone, the need for precautionary abatement is eliminated and the abatement order is rendered moot." Id. There is, however, a major factual distinction between Campbell and the present case. In Campbell, the children had already vacated the premises before the owner received the order to abate. The Campbell court did not provide practical relief because there was no violation of § 19a-111c. In the present case, the child under six lived in the premises for months after the owner received the notice to abate from the department of health. Because the child remained in the defendants' premises after the notice to abate was received, the court can grant practical relief in the present case. The present case is factually similar to both State v. Boisvert, Jr., Docket No. CR 99-0196364 S (May 5, 2000, Robinson, J.) 27 Conn. L. Rptr. 258 and State v. Frankel, Docket No. CRNH 9609-2018 (January 23, 1997, Munro, J.) 22 Conn. L. Rptr. 398. Although both were criminal matters, they involved similar motions to dismiss, filed by the defendants, claiming lack of subject matter jurisdiction. In both cases, children under the age of six resided in the defendants' premises at the times of the initial lead inspection and issuance of the orders of abatement but had vacated prior to the follow-up inspection. Both courts denied the defendants' motions to dismiss, rejecting the defendants' arguments that the court lacked subject matter jurisdiction where the child under six had vacated the premises. As stated by the court in Frankel, "[i]t would be contrary to public policy and the lead abatement statutes to accept the argument that once a contaminated premises is vacant, the owner may choose not to comply with abatement orders." Id. See also Dillon v. Department of Public Health, Docket No. CV97-0570364 (September 30, 1998, McWeeny, J.) 23 Conn. L. Rptr. 73 (dismissing the administrative appeal filed by the apartment owner who had been ordered by the City of Hartford to abate lead in the rental apartment, where the child under six had vacated the premises sometime after the inspection and order of abatement was issued; holding that the abatement orders have prospective application and recognizing that abatement orders are issued to prevent further exposure to lead poisoning); Nadeau v. Commissioner of Public Health, Docket No. CV95-0553046 (March 15, 1996, Maloney, J.) (dismissing the appeal filed by the owners of the premises, holding that the lead abatement orders have prospective application).
The legislature and this court recognizes that children under six are especially vulnerable to lead exposure in light of their greater exposure to lead, and the effects of the lead exposure to their development. Additionally, the court is cognizant of the need to prevent lead exposure to other persons. Vacancy of the premises containing the lead by the child under six does not excuse compliance with the lead abatement order. The fact that there are no children under the age of six currently residing in the premises, does not deprive this court of subject jurisdiction.
For the foregoing reasons, the defendants' motion to dismiss is denied.