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Calif. City: Secondhand Smoke a Nuisance

August 26, 2006

DUBLIN, Calif. (AP) _ Smokers, beware: This bedroom community near San Francisco may soon put you in the same category as rodents, junk cars and weeds. The Dublin City Council gave preliminary approval last week to an ordinance declaring secondhand tobacco smoke a public nuisance, a move designed to make it easier for residents to take to court neighbors who puff with impunity.

``We have to legislate civility at times,″ said Councilwoman Kasie Hildenbrand.

Hildenbrand sponsored the measure after a constituent complained that polite attempts to persuade the smoker next door to curtail her habit had failed.

If the law passes as expected on Sept. 5, Dublin would join the state of Utah and the Los Angeles suburb of Calabasas in giving residents a stick to shake at recalcitrant smokers when pleas for courtesy are ignored.

The proposed Dublin measure would not ban smoking in private homes or backyards. Neither would police be asked to issue citations.

But adding secondhand smoke to the list of nuisances the city recognizes _ a docket that already includes excessively loud music, noxious smells and untended garbage _ would lower the burden of proof on plaintiffs who go to small claims court seeking relief from wafting fumes and up to $7,500 in damages.

Dublin already outlaws smoking within 15 feet of public playgrounds, ATMs and bus stops, as well as in the outdoor seating areas of restaurants and enclosed common areas of condominiums, nursing homes and retirement communities. It also bans hookah bars, where patrons smoke through communal water pipes, and medicinal marijuana clubs.

The vote on the latest ordinance came a little more than a month after the California Air Resources Board classified secondhand smoke as a toxic pollutant that contributes to deaths and illnesses among nonsmokers.

Hildenbrand said the board’s action, along with a report from the U.S. Surgeon General last month that attributed 46,000 deaths from heart disease and another 3,000 cancer deaths annually to secondhand smoke exposure, should embolden bigger cities to add tobacco smoke to their public nuisance statutes.

Two council members who voted against the ordinance argued that targeting smoking on private property was an improper use of the city’s authority.

Utah’s law has been on the books since the mid-1990s, but Lena Dibble, spokeswoman for the state’s Tobacco Prevention and Control Program, said she knew of only one or two instances where people ended up in the state’s small claims court over secondhand smoke. And no cases had been filed since the late 1990s.

Calabasas, Calif., adopted its secondhand smoke law in March as part of a comprehensive measure that also banned smoking in all public places.

Anti-tobacco groups knew of no other places where efforts to curb secondhand smoke had gone as far.

The Dublin resident who inspired her city’s legislation said she and her husband considered moving because of a yearlong battle with a smoking neighbor.

Shirley Wassom, 72, said the neighbor lit up on her patio, and the smoke wafted through Wassom’s windows. Wassom, who is allergic to cigarette smoke, asked her to smoke on the far side of the yard, but the woman insisted she had the right to smoke where she pleased.

Wassom’s son installed a two-way radio so the neighbor could warn the couple to close their windows. But the system didn’t work very well, she said. One morning, the neighbor became irritated when she could not reach the Wassoms on the radio at 7 a.m.

``That burned me up,″ Wassom said. ``Here she knows I’m retired and expects me to get up to shut our windows.″

Her problem was resolved after the neighbor moved in May.

Hildenbrand said she expects more such disagreements because the city has encouraged the development of town house and condominium complexes with shared yards.

``I really feel that as Dublin grows, we are creating new nuisances for our community that are not typical of suburban areas, and we need to be progressive in taking care of our residents,″ she said.

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