A longtime replacement window and door retailer in the Chicago area is suing the Environmental Protection Agency for the federal bureaucracy's claim that it violated rules regarding companies that remodel homes.
The rule concerns notification to homeowners of the possible problems with lead-based paint in pre-1978 housing.
But Ro Cher Enterprises, which runs Door & Window Superstore, is involved only in the retail sales of replacement windows and doors, not remodeling, according to a lawsuit filed against the EPA.
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"If the EPA wants to impose exorbitant penalties for violations of federal law, it should have to make its case to a real court with a real judge, a jury, and due process protections for individuals and businesses," said Oliver Dunford, a senior attorney at Pacific Legal Foundation.
The organization is working on behalf of the family business, founded by Roger and Cheryl Janakus, who have sold doors and windows for decades.
There are two issues, the first that the EPA has misunderstood the Ro Cher business.
It exclusively sells doors and windows. It does not do renovations, but the EPA accused the company anyway of violating the Toxic Substances Control Act that involves notices to homeowners about the potential for lead-based paint.
TSCA does impose certain requirements on companies that renovate older (pre-1978) housing to protect against exposure to lead paint. Renovation companies must have an EPA certificate and they must provide EPA lead-hazard pamphlets to homeowners of older houses. The EPA claims Ro Cher violated these TSCA provisions.
But Ro Cher is not in the renovation business. Rather, Ro Cher sells doors and windows and helps its customers find renovation experts. And these renovation experts do not work for Ro Cher. Nonetheless, the EPA seeks to hold Ro Cher liable.
The EPA demands a $375,000 fine.
The second issue is that the EPA brought the case, then assigned it to one of its own employees to "decide."
That means the case was "overseen not by a federal judge but by an employee of the EPA itself. The prosecutor and judge work for the agency, which prevents Ro Cher from getting a fair hearing," the legal team explained.
The lawsuit in U.S. District Court for Illinois is to obtain a fair adjudication.
The filing charges, "Neither the individual presiding over the action (purportedly an administrative law judge (ALJ)) nor members of the EPA's Administrative Appeals Board, which reviews initial ALJ decisions, were properly appointed to office. They therefore lack the authority to carry out the functions of those offices, and their actions are void."
The EPA's "in-house" prosecutions and convictions violate "Article III because EPA's claims against Ro Cher must be adjudicated in an Article III court in front of an independent, life-tenured judge."
The EPA's scheme violates the Fifth Amendment and the Seventh Amendment, the case charges. The EPA also is violating the Eighth Amendment, it says.
The complaint explains that the company "did not perform or direct renovations or installations" at any time.
The EPA claims the company's "subcontractors" performed the work, but the complaint explains those contractors never were "subcontractors."
The complaint charges that the government "may not deprive any person of private rights except through common-law procedures—most fundamentally, through an Article III court.'
The EPA essentially was acting as "prosecutor, judge, jury, and appellate court," it charges.
The case seeks an order voiding the EPA's demands.
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