About a year ago, I filed in Los Angeles Superior Court on behalf of my daughter (then 5) the first of its kind in the nation lawsuit involving secondhand smoke. I sued the owners of the Oakwood apartment complex in Woodland Hills, where she has lived her entire life, to require them to prohibit as a public nuisance smoking in the outdoor common areas of the complex, where even today smokers arrayed around the swimming pool, etc. can make the facilities we pay rent for unusable to her.

The trial court dismissed the suit, and that decision is now on appeal. I am somewhat confident as an attorney that the state court of appeal will reverse the trial court and revive the lawsuit. But the trial judge's decision only underscored -- for about the 300th time in my experience regarding the issue -- the need for a "give no quarter" approach at every legislative level to eliminating the involuntary exposure to secondhand smoke wherever people have a right to gather. Because the flimsy, reflexive justifications for not doing so have become enmeshed in the fabric of American culture. And the mythology (largely employed by ersatz libertarians on the right) that government is controlling your life and denying your freedom when it tells you you can't smoke somewhere still has cachet.

Even a seasoned trial judge viewed the issue through the false prism of competing "rights": those of the smoker and the person that doesn't want to breathe what all credible science has established as the toxic byproduct of that activity. And almost everyone, I would venture to say, has encountered the recalcitrant smoker that refuses to refrain from lighting up with the proffered justification, "I've got a right to smoke here."

But there is no right to smoke -- at least insofar as the term right has legal meaning, and isnt just being used colloquially to mean, "something I want to do whenever and wherever I feel like it."

A right must have a recognized textual source, e.g., a constitution, statute, judicial decision, contract. The test is whether there is a corresponding obligation and limitation on the part of the government to enable you to exercise that right. Now who can cite to a single ruling by any judicial or quasi-judicial body in favor of a smoker challenging a smoking restriction?

The fact is that for decades smokers dictated what everyone else in their vicinity had to put up with, be exposed to, and risk. Needless to say, this socially sanctioned behavior has led to a sense of entitlement in many smokers approaching that of Mitt Romney. It will continue to take the kind of backlash that makes some smokers feel aggrieved to disabuse them of these fallacies -- and embolden non-smokers to stand up for their rights. Far from being time to step back (based on a quirky anecdote at that), it is time to become even more relentless in driving the effects of smoking exclusively into the confines of the smoker's lungs.

The owners of the apartment complex should be able to either allow smoking outdoor or not. Those that decide to rent must then decide if they wish to live in a complex that allows smoking.

In fact the same should apply to complexs with children. An owner should have the freedom (key concept here) to decided if they wish to have families with children or not.

I don't smoke and I don't like the smell of smoke but the govt shouldn't have to get involved. As long as smoking is legal the owners of the complex should be the ones that decide.

This is the argument I've heard hundreds of times over the years (and from that intellectual collosus of right wing libertarianism, Larry Elder, when I was on his show a while back.) Unfortunately for the libertarians who reflexively abjure government regulation, it is simply wrong. It is not "up to" restaurants and supermarkets to decide if they want to serve meat stored in a footlocker, or "up to" the owners of multi-family housing complexes whether they want to rent to black people, single women, or people with children. Nor is it "up to" Oakwood to decide it to allow people to bring loaded guns to the pool, or to manufacture explosives or open a rendering plant on the premises, or to leave the swimming pool unfilled and unguarded. Get a clue; come up with something remotely original before you take finger to keyboard.

Ok, you disagree with the concept of libertarianism. That is fine because there ARE lots of woles in it (and any philosophy ). But your full of yourself tone and reply shows your true colors.

Why don't you buy a house to live in? Oh, you don't earn enough. Well work harder and maybe someday you can take care of your children the way you want to take care of them.

I find it a little humorous that you complain about a little outdoor smoking, but you live in LOS ANGELES, where the air itself is like smoking half a pack.

I don't know the geography too well, so Woodland Hills may be some swanky suburb that doesn't deal with LA's renowned air-quality problems--it sounds like it might be--but lighten up. Unless it's a crowded, semi-enclosed area and everyone is puffing, it's essentially harmless.

because of the public vs private property issue.

A suit against the City of Chicago was dismissed for pretty much that reason a week or so ago.

A porch collapsed during a party (long history here of murderous porches, corrupt building inspectors, and dodgy landlords). There were over 30 people on it, when it collapsed three were killed (I think - not sure of the numbers).

It was tossed out because the government cannot be expected to guarantee anyone's safety on private property. Apparently the landlord isn't liable because the porch really was up to code.

I live in So Cal and this area has smog just as bad as most of LA. My gut tell me 'johnny' doesn't find much of anything humorous.

I can see the apt. owners having some restrictions and limits (e.g. smoking only in certain outdoor areas that are not even partially enclosed), but either way it is up to the owners of the complex.

Actually, it's not correct to say that no one wants to rule on this. It's more accurate to say that state court trial judges are notoriously conservative (in the judicial, not in the political sense) and are therefore reluctant to extend existing law to novel factual situations. This is consistent with the fact that the trial judges do not make law, and their decisions are not precedent in future cases.

In California, as in almost every state's judicial system, the courts of appeal, including the state supreme court, make the law applying statutes, i.e., establish the precedents that others are bound by under similar circumstances. These are the courts that decide only issues of law, such as whether secondhand smoke is a noxious, offensive substance that substantially interferes with a reasonable person's enjoyment of property, such that the property owner must abate it.

And by the way, a tenant has the same right to enjoy the property he lawfully inhabits as a homeowner has vis a vis property he/she owns. The public/private property dichotomy is irrelevant; the apartment owner has well established duties to reasonably protect even visitors from foreseeable harm, which secondhand smoke certainly poses according to all the science.

johnnyb--

Good luck -- I hope you win!

I completely agree that the present discourse is fundamentally flawed to the extent that it recognizes any right to smoke in public places. Public smoking affects others and is therefore perfectly suitable to regulation or even prohibition.

Unless one fully rejects the concept of a regulatory state, I don't see a legitimate distinction to be drawn between public smoking and any other kind of activity that has external consequences. (Curiously, I am certain that a fair number of those who defend the "right" to smoke in public have no problem with regulation of other activities whose effects on others are more attenuated [consumption of drugs in one's home, consensual adult prostitution, etc.].)

But my support for your case aside, I do have a question: what kind of harm do you intend to prove? Having smoke around the swimming pool is obnoxious, for sure. I can easily see how it would affect your enjoyment of the common areas. But you're bringing this suit on behalf of your daughter, so I assume the real issue is her health? If so, what kind of evidence suggests that small quantities of outdoor smoke could pose more than a theoretical health risk?

You make a very valid point about harm. Yes, smoking in a enclosed place clearly causes harm and this is why it is against the law in most places now. Great.

This might be a bogus example, but what about eating nuts. There are people that get a very bad reaction to nuts and even the dust that comes from eating nuts. Well should we ban the eating of nuts in public because of the theoretical health risk to those allergic to nuts?

So the 'gray area' is what quantities of second hand smoke poses a health risk. Granted I have seen outdoor smoking that is a health risk. For example, the outdoor bar at the Four Seasons here in LA. Yes it is outdoors BUT since almost everyone is smoking it is almost like being outside.

But if this pool area is large 'enough' and the number of smokers is limited at any one time, I don't view that as the same.

Excellent question: it happens to be the question that the trial judge ruled against us on. In California, in order for someone to sue another to make him or her abate a public nuisance (which is defined as one that simultaneously affects "substantial number of persons," as opposed to a private nuisance that affects a property' owner's use and enjoyment of her property) the private plaintiff must allege "special injury." That means the plaintiff has to suffer a different kind of injury than everyone else suffers.

In my daughter's case, her special injury is that secondhand smoke aggravates her asthma. We alleged this is a different kind of injury than that suffered by other people exposed to secondhand smoke in the outdoor common areas; their injury, based on the 2006 reports of the California Air Resources Board and the U.S. Surgeon General, is a heightened risk of lung cancer and heart disease.

The trial judge ruled -- mistakenly, we believe -- that any injury to the respiratory system, like asthma, is the same as another, like lung cancer. Therefore, the trial judge found, my daughter did not have "standing" to sue for public nuisance. This is the primary issue the court of appeal will make the law on one way or the other.

Thanks for the encouragement and support.

"A right must have a recognized textual source, e.g., a constitution, statute, judicial decision, contract."

Utter nonsense. The Bill of Rights isn't a grantage of rights to subjects, it is the illumination of pre-existing rights of citizens. The rights are not granted by government to the citizens, the citizens cede certain powers to the government. The rights themselves existed before there was a constitution. This is the very heart of the doctrine of individual sovereignty espoused by Locke and put forth by the people who wrote the constitution. The idea that rights are in some way based on text is ludicrous.

So, what you're lawsuit is really attempting to do is to infringe on the rights of the private property owner (the landlord) in determining whether or not his residents have the ability to engage in a legal activity upon his property.

The health risk you perceive to your daughter is very small, at worst, and probably no worse than the particulate-laden air of Southern California outside the pool area where the legal smoking takes place.

Your pompous, hortatory verbiage fails in its quest to offer a patina of legitimacy to your ill-founded fulmination. You're (contraction for you are; see your post) obviously not an attorney, though I wish you were and representing Oakwood. Then you could make your "natural right to smoke everywhere" argument, which, strangely no attorney or even credible defender of smokers has thought to advance it in challenging smoking restrictions.

PS: "grantage? Are you fucking kidding me?

Childhood asthma is linked to growing up in places with poor air quality. So even if you were to win and remove all second hand smoke the impact to your daugher's conditon would be mimimal. It would be better to move to an area with better air quality. So one has to wonder what your actual motive is.

Why exactly does one have to wonder? And do you know more than the American Lung Association or the Surgeon General or her mother or me about asthma triggers, asshole? Jesus.