Argument For Legislation Limiting Children's Exposure to Second Hand Smoke

Children and infants are especially susceptible to the effects of second hand cigarette smoke. This is because young children their lung capacity as related to their body weight is larger than that of an adult, their immune system is not as developed as that of an adult, and they are less likely to complain and/or remove themselves from the environment that causes the exposure. In other words, children are biologically geared to inhale more of the toxins present in cigarette smoke than their adult counterparts. Second hand smoke exposes children to a number of carcinogens (cancer causing substances), and when the environment is such that air flow is limited, such as inside a home or vehicle, those carcinogens are especially concentrated. There are more than four thousand substances present in tobacco smoke, more than forty of which are known carcinogens. These substances include formaldehyde, arsenic, vinyl chloride, lead, cadmium and nickel, as well as a host of other chemicals that are completely unpronounceable.

The effects of environmental tobacco smoke range from the relatively benign to serious health consequences. The irony of tobacco smoke is that the chemicals that are present in second hand smoke are often more concentrated than the smoke that a smoker takes into his or her lungs. Among the effects that second hand smoke has on children are increases in the frequency of upper and lower respiratory tract infections, an increase in the severity or frequency of existing asthma episodes and/or symptoms, a reduction in the flow of oxygen to tissues and reduced lung function in general, and an increase of fluid in the middle ear. Second hand smoke has also been associated with frequent ear infections, throat infections, an increase in the frequency and severity of colds and sore throats, poor or slowed growth, childhood cancers, and Sudden Infant Death Syndrome (SIDS). Second hand smoke is thought to be responsible for more than 10% of all cases of childhood asthma, more than 16% of all physician office visits for cough and more than 20% of all lung infections in children under the age of five. Smoking is also responsible for a number of children's deaths from cigarette-related home fire.

There is little doubt that adults are aware of the overall dangers of cigarette smoke. Less than 10% of individuals believe that second hand smoke presents no danger whatsoever to the non-smoker. However, many people are not aware of how the effects of second hand smoke are compounded in children. Because of the increased danger of tobacco smoke, several states are considering legislation that would ban smoking around children under a certain age (generally fifteen) in any enclosed area, especially a vehicle.

Arguably, smoking is not against the law for any individual over the age of eighteen. Therefore, many adults do not consider their smoking as anything other than a legal right. Any attempts to limit that right are generally met with significant resistance and protest. However, as cigarette smoke is so dangerous to others, especially children, it can be argued that the only way to prevent harmful effects to non-smokers is to effect legislation that limits the rights of smokers. To date, most states have initiated some form of indoor smoking bans. These bans have been met with protest and resistance from smokers and non-smokers alike. The smokers protest that they have a legal right to smoke and the non-smokers protest that the government is limiting the rights of the smoker, and that those limitations may lead to the limitation of other rights. Non-smokers that are in favor of legislation that limits the rights of smokers argue that the legislation would not deny the right of a smoker to smoke, but would instead enforce the right of the non-smoker to remain healthy. Much like the use of alcohol, the use of cigarettes would, under the enactment of such legislation, be legal only in the sense that such use would not violate the rights of others. As alcohol is legal only in as much as it does not endanger others, so would the use of tobacco be legal only in as much as it does not endanger others.

To date, Arkansas, Louisiana, Washington, Vermont, and Texas have already initiated some form of legislation that bans smoking around young children. Many states are ordering that children involved in custody disputes and/or divorce cases are provided with a smoke free environment. However, these cases are often the result of one parent complaining about the other parent's smoking around the children. Additionally, as the courts are intervening in a child's home environment, there the legal system must either stop requiring a smoking ban in such cases or that it must apply the ban uniformly across every household, not merely the ones involved in civil litigation. Children's rights groups are calling the exposure of young children to second hand smoke a form of child abuse and are rallying for legislation that limits the smoking of any individual around children. In Arkansas, any individual who is caught violating the ban against exposing children to second hand smoke can be fined $25, but can avoid the fine if they show proof of enrollment in a stop smoking program.

It can be argued that legislation that bans smoking around children, in cars, homes, or other enclosed areas, is a position that places the health of children above the bad habits of the adults that care for them and above the civil liberties of those adults. Regardless of their oppositions, adults must realize that current research overwhelmingly indicates that the effects of second hand smoke on children are predominantly negative and that these effects must be curbed in any way possible and as quickly as possible. With many states already employing statewide smoking bans that protect all non-smokers from the effects of tobacco smoke, it must be realized that states cannot enact such legislation without also considering what they can do to protect children. Smokers have been presented with the knowledge that second hand smoke is harmful to others for many years, yet parents and other caregivers continue to smoke around their young charges. Obviously, something other than educating smokers to the harmful effects must be done to prevent smoking around children.

It can be argued that such a ban would be inherently difficult to enforce. It has also been argued that seat belt laws and drunken driving laws would be difficult to enforce, yet fewer people drink and drive and more people buckle up on the nation's highways. However true the argument regarding enforcement is, remember it is often not the legal system itself that prevents individuals from violating ordinances such as smoking bans, drunken driving laws, and seat belt laws, but the fear of the legal repercussions of violating the laws. Additionally, many individuals have found that the enactment of smoking bans have given them the incentive they needed to stop smoking themselves, just as states' enactment of new seat belt regulations spurred more individuals to employ the use of their seat belts, regardless of their initial resentment of the legislation. For some people, the right to harm themselves just isn't worth the fight in the long run.

Cigarette Smoke and Tenant Rights

Renters in apartment dwellings can get irritated by other tenants who enjoy cigarettes. Another occupant's smoke can creep into your residence through an open window or the air conditioning system. Unfortunately, until the rental lease agreement makes it a requirement for the landlord to stop such happenings, there is currently very little that is possible to do with regards to California law. Local laws may change soon, but that doesn't assist those being put off by by smoke currently.

Even though a few cases have been submitted in California against landlords or other renters due to the sharing of secondhand smoke, the legal answers are still unknown. Results submitted by the California E.P.A. (Environmental Protection Agency) that connect someone else's smoking to a variety of diseases, which include brain damage and pregnancy complications, may affect a law's perspective of this situation, but that is yet to become clear. If you happen to be a renter thinking about legal action against a property owner or renter for subjecting you to his second hand smoke, due to the newness of the situation, you may need to consult a lawyer.

Renters Rights Against Their Property Management Company

Even though there is no law that prohibits smoking in private domiciles, all California property managers owe a diversity of responsibilities to their renters, to include: The implied warranty of habitability and the implied covenant of quiet peacefulness.

With regards to the implied warranty of habitability, a part of every single one of California rental lease agreements, a property owner makes certain that the grounds are and will remain livable. Livability is usually discovered by the owner's obedience with specific code obligations, such as providing required heating and ventilation.

But, California judges have not determined that code obedience is the only deciding factor of whether a break has happened. That way, it is conceivable that, when under specific situations, the judge might rule that a renter's openness to secondhand smoke breaches the warranty of livability.

The implied covenant of quiet peacefulness champions the renter's use and peacefulness of the grounds for the reasons outlined by the rental lease agreement. The property owner can breach the implied covenant of quiet enjoyment by doing something or failing to do something, such as failing to cease other renters from creating too much noise. The inquiry the courts would ask is whether the other tenants smoking greatly affects the renters ability to enjoy of a specific part of the grounds. It is unknown how a California judge would rule on this situation.

In the rest of the U.S., a few judges have permitted lawsuits to stand when a occupant's smoking is severe enough, or made the property owner to extend to the renter a lessening in rent due to the smoke. But, it is unknown whether a property owner would be responsible for the relocation costs of a renter who decided to discontinue a renal lease agreement because of secondhand smoke problems. Due to the fact that these outcomes were made by an out-of-state judges, the rulings are not applicable in California and it is unclear how California judges would rule on the same evidence.

Renters Rights Against Their Neighbors

In California, a renter now has little if any legal rights opposing another tenant for exposing them secondhand smoke. There is no legality that prohibits smoking in private domiciles, like the law that prohibits smoking at work. That way, the tenant who smokes has not violated the law by smoking in her apartment.

A occupant's smoking might not reach the legal requirement for a "nuisance" as determined by the California judges. Even though California law outlines a nuisance as that which is dangerous to a person's wel-being, . . . Or is not decent or irritating to the senses, . . . So as to meddle with the peaceful happiness of life or property," judges also make it a requirement to that a plaintiff give proof that the action is both "substantial" and "unreasonable."

Going by the present California case laws, a occupant's smoking might not be viewed as either substantial or unreasonable, but it depends on the consistency, length of time and degree of exposure. A judge might see the secondhand smoke challenges as just the renter's inability to live together in the same building.

Rights of Physically Challenged Occupants

Renters with specific physiological disabilities might have other legal answers at their disposal to stop drifting smoke from coming into their domiciles. Under state and local law, those with limitations are enabled with feasible quarters and/or changes of guidelines from their property managers to make sure that commensurate availability to and happiness of their living space.

To certify for these exceptions, the renter has to qualify for the legal explanation of "handicapped" or "disabled," meaning that their circumstance "limits" (under California law) or greatly limits" (under federal law) a substantial life ability."

Someone with a genuine lung situation may be considerably limited in her breathing. If a renter is "handicapped" or "disabled" according to the legal definition, and openness to secondhand smoke is stopping the renter from appreciating the property, the law makes it a requirement for a feasible living space. The property owner might be made to stop smoking in joint areas of the property, if that is the origination of the smoke, or let the tenant move to an alternate apartment, further from straying smoke. Rather, the renter might be able to discontinue his/her rental lease agreement without being penalized.

What Can a Property Owner Do to Halt Such Problems?

To not run into challenges caused by renter's smoking, property managers in California might:

Start a smoke-free rule by not allowing new occupants from lighting up;
Establish non-smoking parts of properties; or
Not allow smoking in all joint areas, such as stairs or garages.

Conclusion

If a renter in a property is put off by occupant's smoking, the legal answers are unclear. Property owners have certain responsibilities to renters (implied warranty of habitability and implied covenant of quiet enjoyment). These property owner-renter law guidelines may offer some reprieve for renters depending on the seriousness and length of the openness to secondhand smoke. Due to the fact that this is a recently discovered part of the law, it is unknown how a California judge would decide. If a renter is physically challenged she might have other legal cures under state and local anti-discrimination laws.

Rather, the apartment manager is allowed to stop smoking in an apartment. Or a local government might establish an law putting limits on smoking in joint areas or stating that property managers have the ability to create areas of the property smoke-free.

So, make positive you are clear as best you are able the parts of the building where smokers are hanging out before you agree to your rental lease agreement.

Second Hand Smoking Declining

Second hand smoking came to the lime-light in the early 1980s when a Japanese researcher noticed that people who lived with smokers also suffered from smoking related illnesses and disorders. Since then numerous other studies have been completed which soundly point to these initial Japanese findings.

The wide acceptance of the effects and dangers of second had smoke has largely encouraged most measures that limit smoking in public places. This acknowledgment of the dangers of second hand smoke made the problem and concern not only that of the smoker but a society wide problem. In as much as pro-tobacco groups cry human rights violations of smokers rights, the counter argument is that smokers violate the right to health and right to life of the general public.

Recently the CDC released a report that showed a decline in second hand smoke compared to the 80s and 90s levels. The decline is in the region of 70% and is arrived at by comparing study results from cotinine tests done in the 80s to those done recently. Cotinine is a metabolite of nicotine. Nicotine does not stay long in the body in its original form. Once inhaled and in the bloodstream it changes after a short period of time to cotinine. Researchers do blood tests to test the presence of cotinine which is a tell-tell sign of the presence of nicotine.

The announcement by the CDC of the decline of second hand smoke even though still showing that a significant number of people especially young children are still affected by second hand smoke is a cause for celebration. It clear shows that anti-smoking laws and regulations preventing public place smoking have been well hided. Children remain vulnerable because they often live with smoking parents or siblings. What then is required is to extend the laws banning public smoking into homes in order to once and for all protect children from smoking parents and siblings.

The success of stop smoking laws leading to second hand smoke decline is sadly confined to the developed world. In poorer developing countries such as China with 350 million smokers, second hand smoke is still affecting millions of innocent people on a daily basis. The problem is not only at the smokers level but also at the government level which is not keen to tamper with lucrative tobacco tax dollars. More pressure and campaigning is needed to convince these particular governments of medium to long term health costs of a sick population.

The decline is second hand smoking in western countries shows that it is possible to bring into control second hand smoking even in the developing countries when the right policies and willingness is established.