New Precedent Could Affect Residential Non-Smoking Laws
Serendipitous legal circumstances may have contributed to the establishment of a new legal precedent in one northern California town located east of the San Francisco Bay; citizens of Dublin, CA may now be eligible to file temporary restraining orders to escape secondhand smoke.
(photo courtesy of Mia Mabanta)
From an article in the Contra Costa Times, we learned that an Alameda County Court judge granted a temporary restraining order to a couple who complained that their downstairs neighbor had violated a town nuisance ordinance by smoking near their residence.
The ordinance, passed two years ago, was originally designed to make it easier for small claims suits to be filed that pertain to secondhand smoke as a public nuisance. The couple, however, sought a temporary restraining order, much to the initial consternation of court.
However, after reviewing the evidence, which included the repeated attempts at trying to reach a compromise, documentation of couple's allergies to smoke and the actual town ordinance, the judge saw it fit to grant the restraining order, which prohibits smoking within 25 feet of their residence or in any apartment that shares a ventilation system with their unit. If the neighbor violates the terms of the temporary restraining order, the couple can call the police to have the offender arrested.
This is quite an important development as far as smoke free apartments laws go. We have touched upon political intervention on behalf of smoke free apartments before, when State Senator Alex Padilla introduced California Senate Bill 1598, which would allow landlords the right to prohibit smoking.
The last action on that bill, according to the California Senate's online legislative resource, occurred June 24th when the author, Mr. Padilla, canceled the first Senate hearing on the bill, after it had passed in the California State Assembly. Perhaps Mr. Padilla recognized that landlords already have that right and have no problem exercising it. In fact, we have related how in some cases, apartment management companies have found it advantageous to offer smoke free apartments.
What do you think? Where should the boundary between the right for someone to participate in legal activity in their own home and the rights of others to live healthy lives be drawn?
As soon as secondhand smoke is detected by someone who does not want to be exposed to it, should the smoker be forced to stop?
Take our informal poll below and let us know where you stand.
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10 Responses to “New Precedent Could Affect Residential Non-Smoking Laws"
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October 30th, 2008 at 2:46 pm
i think it should be the smokers who pay more, not the non-smokers.
October 30th, 2008 at 2:55 pm
This is a form of facism. Car exhaust is also cancerous, are we outlawing that? We are mortal. Get over it.
October 31st, 2008 at 9:39 am
Where will it end? I have a right to smoke in my OWN place, which *I* pay to live in. I'm courteous to non-smokers rights, but when things start to get ridiculous I will fight back. Don't try to tell me how to live in my own place!
My upstairs neighbors have lead feet, which, while annoying while I'm awake is maddening when it wakes me up. Lack of sleep affects my health. Can I have them arrested?
Let's not even talk about all the car exhaust, which is worse for the public's health than any cigarette is!
November 3rd, 2008 at 9:24 am
I think people should be free to do whatever they would like in their homes. In units that may incur damage due to smoke (and as long as it isn't in violation of the lease)that seems to be damage that would fall under repair paid for by the security deposit.
November 26th, 2008 at 11:57 pm
wow, I can't believe that landlords don't have the right to ban smoking now in CA.
I am with Kevin Keiper, charge more for smokers. It coast the landlord more as smokers require more cleaning a teh end of their tenancy. I think landlord should be able to say no smoking, or for that matter say smoking is OK. And charge more for either. If there is a market for smoking or non smoking apartments landlords should be able to fill it.
December 31st, 2008 at 7:35 pm
I feel that no smoking should be put into leases. The landlord should be able to make that choice. They should also be able to remove people who lie on a lease. I was really upset when I leased one of my two apartments to an organization that deals with the disabled to a smoker. The social worker was a smoker and ignored our requests. The day she moved in she lit up. She new we did not want a smoker. She lied to my husband. Both my husband and I have health problems. He has diabetes and has growths in his lungs that need to be monitored. I have asthma and both of us are on cpap and bipap machines. We live next store, but my husband is there for hours at a time and that is his residence. I bought the house and are on the deed. We tried to give her the gum and had to put an area in the yard which was not on the lease for her. It took us months to get the smoke out from the previous owners tenants. My husband had to paint and use a razor on windows and lights, to get out the damage it has caused. We told her not to smoke in the apartment. Her roommate does not smoke and she smokes in the apartment. I smell it when I use my yard and go into the house. It makes my husband and I sick. I am in New York. I need help. What do I do.
January 8th, 2009 at 4:08 pm
I agrre with Rob Kubitz, Erin, and Marcel: Smoking was allowed first. The ban, because of the exaggerated “second hand smoking" issue, came after. Meaning the “smoke free" situation is new, and is the change. The people that wants/supports such change, (the non-smokers) should be the ones to pay higher rent should it comes down to this. Not renting to someone that smokes and/or not allowing him or her to smoke, in an apartment for which he/she is paying rent for, is discriminatory, and should not be permitted by law. If smokers would have stood up for their rights back when this whole thing started, we wouldnât be in this predicament. At least, not for the time being. Where did non-smokers came up with the belief they have more rights than smokers? And why do smokers permit this to happen? We all have the same rights. SMOKERS HAVE RIGHTS TOO. Bottom line is: SMOKERS SHOULD HAVE THE RIGHT TO SMOKE IN AN APARTMENT FOR WHICH THEY ARE PAYING RENT.
January 15th, 2009 at 12:50 pm
I think smoking period, should be illegal! it is deadly and serves NO perpose what so ever to society
February 23rd, 2009 at 9:13 pm
Second hand smoke is a known carcinogen. I have no objection to anyone smoking in their own apartment. Knock yourself out. But I do have an objection to the nose bleeds, sore throats, asthma attacks and headaches I suffer as a result of second hand smoke entering my apartment. And I object to the extra expense caused to me in the form of doctor visits, medication, air cleaners and a constantly running air conditioner. Before my chain smoking neighbors moved in I could open my windows. I could also use my balcony. Now I cannot. So I'm paying the sane rent and have experienced a loss of services. To me, that's discriminatory. I think it is a building's responsibility to provide a safe environment for all tenants. Buildings should be required to provide a smoke free environment in the same way they are required to provide an environment free of vermin. Both are health hazards.
February 27th, 2009 at 4:02 am
i think smoking is terrible.why am i forced to breathe that???????????????????????????????????????
i am also a male RN and i see the health results and the disease this smoking causes.
another concern is p-eople with health issues and pain are not allowed to smoke pot to alleviate symptoms,but the govt lets people smoke ciggarettes?go figure
at walmart smokers take 5 or 6 last inhales before going into store then upon coming out the first thing the smokers do is light up???gross