After the Dublin City Council announced plans last month to declare secondhand smoke a public nuisance, leading the way for residents to sue each other over smoking that takes place on private property, the Contra Costa Times warned of "a slippery slope," the San Francisco Chronicle lamented "the nanny state," and the Tri-Valley Herald declared the city's liberties "up in smoke."
Despite the strong words, other localities may not be far behind. Emeryville leaders were scheduled to consider a similar ordinance on Tuesday, September 19, which they are ultimately expected to approve. Pleasanton Mayor Jennifer Hosterman says that while the issue has not yet been raised before her council, she would be happy to take it up if it were. "I am an old ex-smoker," she said. "And we are the worst."
San Francisco also is thinking about classifying secondhand smoke a nuisance, according to Serena Chen, policy director for the American Lung Association of California, although city officials declined to comment.
For years, a statewide smoking ban has been in effect for most workplaces, including all but a handful of restaurants and bars. In addition, cities around the Bay Area have passed increasingly severe restrictions on when and where people can smoke in public. First, many cities forbade smoking near public spaces where people congregate bus stops, building entrances, and the like and then proceeded to ban smoking at places such as public parks and beaches. California nonsmokers are increasingly living smoke-free public lives, and smokers are increasingly exiled.
Given this progression, it's hardly surprising the debate is now turning to whether residents have recourse against someone who smokes on private property. "Californians have become used to being protected from secondhand smoke at work and at restaurants," Chen says. "Then they go home to bedrooms filled with smoke" from neighbors' cigarettes.
For the antismoking advocate, nuisance ordinances are "a way to level the playing field for people exposed to smoke in their home," as well as a way to capitalize on recent reports from the Surgeon General and the state's Air Resources Board labeling secondhand smoke unsafe at any level and as a toxic air pollutant, respectively.
Robert Best, California coordinator of the Smoker's Club, an advocacy group, takes a darker view. "Once they get enough nuisance complaints, they'll pass a law banning smoking in your house," he says.
But while Dublin's ordinance has generated both scorn and praise, its practical impact and that of laws likely to follow remains murky. Its nominal purpose is to make it easier for city residents to bring inconsiderate smoking neighbors to small-claims court. Plaintiffs will now be able to make their cases starting from the assumption that secondhand smoke is a nuisance.
That's enough to excite someone as sensitive to secondhand smoke as Connie Chaltas. The Redwood City resident says the smoke seeping into her home from a neighbor's condo has led her to sleep in her car for the last year. "We need it made a nuisance," she says. "They can cite someone for loud music, but they can't for secondhand smoke. Which is more toxic?"
Yet an ordinance like Dublin's would not alter Chaltas' legal remedies much. According to lawyers she has consulted, to pursue her case now, she would have to subpoena all her other neighbors to get them on record as being nonsmokers, have an air-quality expert test the air in her home and, ultimately, prove that the smoke has caused her harm. A nuisance ordinance would change none of this.
Chen acknowledges that Dublin's ordinance is not intended primarily for use in the courtroom. Rather, she says, it is best understood as a tool to intimidate smokers who are unwilling to accommodate their smoke-sensitive neighbors. With the ordinance, she says, "a somewhat recalcitrant smoker might sit down and talk with me and agree to smoking a little further away. And in many cases that's all it would take."
In a place like Dublin, though, that can be tricky. That's because the rapidly developing city has embraced "smart growth," wherein yards are small and neighbors live in closer proximity than in many suburbs. This was the issue for Shirley Wassom, whose case eventually led to the town's controversial new law.
Wassom and her husband, Bob, moved to Dublin from Texas in 2000 to be closer to their son and his family. Their yard was small, but they were content at home until May of last year, when a new renter moved in next door. In the evenings, the woman smoked cigarettes on her patio, which was just across a wooden fence from the Wassoms' yard, no more than fifteen feet from their dining room and kitchen windows.
For Shirley Wassom, the smoke drifting into her house brought back all manner of bad memories. In the 1970s, she worked in the accounting and finance department at Reese Air Force Base in Lubbock. Most of her co-workers were smokers, she said, so she inhaled secondhand smoke every day. Already sensitive to tobacco smoke when she started, her physical and mental health started to fray after five years on the job.
For a couple months, Wassom showed up to work wearing a black industrial respirator. She sought legal help, she said, but the only lawyer willing to listen turned out to be a dud. The rest saw her case for what it was: A loser. She put in for medical retirement, but was refused.
When Wassom started fainting at intersections while driving home from work, she stopped going. Shortly thereafter, she received a letter firing her for nonappearance.
The physical and emotional damage caused by this experience was long-lasting: Wassom had become allergic to nearly everything, she says, blaming the condition on her smoke-filled former workplace. For twenty years, she rarely left her house, and then only while wearing the respirator. Only in the last decade has she been able to assume a more normal life.
The smoke drifting into her Dublin home, she says, "brought it all back for me." And so one day last fall, Wassom told the neighbor to keep her tobacco smoke on her own property. A testy exchange ensued, followed by a period of attempted compromise.
Wassom's son fashioned a device by which the neighbor could push a button to signal when she intended to light a cigarette; this turned on a radio and a series of lights in the Wassom home. When the Wassoms missed the signal one morning and complained, the neighbor grew frustrated and the experiment faltered.
The couple considered moving, and even looked at a few places. Shirley Wassom strongly supports the city's ordinance, but because it offers little in practical legal terms, it is unclear what good it would have done in her situation, which was solved when the neighbor moved out in May.
While the law's intent may be to foster compromise, forcing civility on an adversary is not always possible. Just ask John Collins Sr., who moved to Dublin in 1966. Over the years, he has opposed the formation of Dublin's incorporation as a city, smarted over the high cost of its elaborate municipal complex (he calls it the Taj Mah-Dublin), and been infuriated and personally inconvenienced by the city's restrictions on recreational vehicles. "I hate too much law to begin with," he says, "but ridiculous laws especially."
Collins finds Dublin's ordinance pointless because of the steady easterly breeze that blows through town most days. "To get a harmful amount of my cigarette smoke, you'd practically have to [sprint] your way across your property," he says.
People who do not like the smell of smoke have a legitimate gripe, Collins says, adding that he would make an effort to accommodate a neighbor bothered by his habit. However, he says, the ordinance puts him on the defensive on his own property, and that is more than he can take.
And so the pack-a-day smoker is planning to do something that decades of frustration with Dublin's government have not driven him to. He is going to move, he says, "as far away from a city as I can get."
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