Smoke-Free Nation 

Berkeley's new outdoor smoking ban is one of several recent Bay Area laws that mark the beginning of the end to smokers' rights.

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The Sanderses said they tried talking with their neighbor several times. But Nancy said he "made it our problem," and told them he was a "full-on smoker" and not about to change. So the couple went online looking for help and soon discovered that their city had given them a strong tool. After the Sanderses requested assistance from City Hall, the City Manager's Office sent a letter to Chuck and Nancy and all of their neighbors.

The letter explained that Dublin residents could take their smoking neighbors to small claims court and offered a seven-step process for "effective mediation" of conflicts "where smokers and nonsmokers live in close proximity." But the Sanderses said their neighbor never even acknowledged receiving the letter, stopped answering the door when they knocked, and continued smoking unabated. In time, they hired a lawyer to draft a letter, more clearly threatening that they would take their neighbor to court if he did not voluntarily control his smoking. When they didn't get a reply, Chuck waited for his neighbor out in the parking lot at 9 a.m. to give him one last chance to avoid a lawsuit. But that final encounter went nowhere.

So three months ago, the Sanderses had their day in small claims court, and Alameda County Judge Charles Smiley issued a restraining order against their downstairs neighbor. It read, in part, that he "shall not smoke within 25 feet" of their home — which meant that he was barred from lighting up within 25 feet of his own apartment — or risk being arrested. The judge said that Dublin's ordinance forced him to set a precedent with the case, and that the best tool at his disposal was the restraining order. Nancy said that for the most part the drifting secondhand smoke problem has gone away since the judge intervened.

But residents of other East Bay cities can't use Dublin's new law. Jane Carleton, who has owned her condo in Walnut Creek for about four years, said her life changed last summer when the unit below her was purchased by a new owner. "It was August 17th. I'll never forget the day she moved in below me. She's a real partier," Carleton said.

Carleton said that her new neighbor, along with streams of her nightly party guests, would smoke a lot, both inside the unit and out on the balcony, at all hours. Carleton tried talking to her neighbor to alert her to the drifting smoke, but to no avail. She then worked with her other neighbors as well as her homeowners' association, but with little results. Finally, she contacted a lawyer who told her that it would cost around $15,000 to solve her problem.

For now, Carleton keeps her windows closed most of the time, but the smoke still finds its way into her home. She said it's making both her and her pet sick. She keeps a detailed log of "events," chronicling when and where she smells smoke and sometimes sees it coming into her own home. She said she's also looked into moving, but she's holding out hope.

Chen of the American Lung Association said the Sanderses' and Carleton's stories are all too common. "Californians are used to spending eight hours a day in a smoke-free environment, then going out to eat and not being exposed to secondhand smoke," Chen said. "The greatest irony of all is going home and opening your front door and your living room smells like a bar from the old days."

Smokers, understandably, feel under siege. John Schmidt, who owns the Pub in Albany, a low-key bar and smoke shop on Solano Avenue — think coffee shop with pipes and pints — recently sent a letter to the Albany City Council, complaining about the city's proposed new antismoking law. Schmidt said in his letter that his business declined more than 30 percent after the 1998 indoor smoking ban, "followed by a long recovery that was assisted by the availability of outdoor seating to accommodate smokers."

Schmidt sent the letter to express his opposition to the city's plan to ban smoking all along Solano, a popular shopping and dining strip. He told the Express that the proposed law forced him to get involved in city politics to save his business. He views the Albany ban as an unnecessary encroachment on his rights as well as the rights of patrons of the Pub.

After a drawn-out process, Albany passed the smoking ban last month. It takes effect next week, but includes provisions that still allow for outdoor smoking at bars along the avenue. For the time being, John Schmidt and his customers can still light up. But the city, like Oakland, did ban smoking in common areas of condos, townhomes, and apartments, and passed a landlord disclosure law.

Meanwhile, Marcia Brown-Machen of Berkeley's health department is working with others in the city to draft a smoke-free, multi-unit housing policy of their own. She predicted that the draft will be ready for the mayor and the city council in six to nine months. Berkeley officials, she said, are very interested in how other cities are enforcing their new restrictions.

Enforcement, in fact, has turned out to be a key issue in Berkeley's own ban on smoking in shopping districts, including downtown, Telegraph Avenue, Solano Avenue, and Fourth Street. Indeed, it will probably take a lot of time for the air to clear, since city officials do not plan to deploy a Draconian campaign. Instead, they will roll out the public education slowly, by distributing no-smoking signs for concerned business and restaurant owners. It also will be up to nonsmokers to urge smokers to "self-enforce" the new rules.

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