# El Dorado Hills couple sues neighbor over cigarette smoke



## Griff (Nov 1, 2009)

Found this on Fark.com, link is here:

http://www.sacbee.com/topstories/story/2297196.html

I figured it belonged here since it really isn't EMS news, but it is interesting nonetheless. I'm torn on the issue, myself; I am not a smoker and I dislike the smell/etc, but litigation (in this case, at least) seems a bit extreme to me. Any legal minds in here think that this case has any merit? What are the implications of any precedent (either way) that will be set by this case?


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## CollegeBoy (Nov 1, 2009)

Griff said:


> Found this on Fark.com, link is here:
> 
> http://www.sacbee.com/topstories/story/2297196.html
> 
> I figured it belonged here since it really isn't EMS news, but it is interesting nonetheless. I'm torn on the issue, myself; I am not a smoker and I dislike the smell/etc, but litigation (in this case, at least) seems a bit extreme to me. Any legal minds in here think that this case has any merit? What are the implications of any precedent (either way) that will be set by this case?



Amazing how people will sue over anything these days. Seriously, I don't see smoke really being a problem. If it is blowing from one yard into another house (which I true find amazing) then either they have absolutely no tolerance, or it is terribly poor design by the architects. Honestly, I think that any merit in the case will fall upon the testimonials of other neighbors. I don't openly support or discourage smoking myself, what people do is their own choice. How would I feel if someone told me I couldn't chew every now and then?


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## Sasha (Nov 1, 2009)

RuralEMT said:


> Amazing how people will sue over anything these days. Seriously, I don't see smoke really being a problem. If it is blowing from one yard into another house (which I true find amazing) then either they have absolutely no tolerance, or it is terribly poor design by the architects. Honestly, I think that any merit in the case will fall upon the testimonials of other neighbors. I don't openly support or discourage smoking myself, what people do is their own choice. How would I feel if someone told me I couldn't chew every now and then?



Cigarette smoke is bad for you. It is a problem. Second hand smoke is bad for you too. I chose not to smoke because of the bad health effects, it's not right for a smoker to contaminate MY lungs and cardiovascular system because of their poor choices. As a smoker you have a responsiblity to keep your smoke away from others. Can't handle it, don't smoke.

*IOM Report Confirms Secondhand Smoke Causes Heart Attacks in Nonsmokers*
Full Article: http://www.lungusa.org/press-room/press-releases/iom-report-on-secondhand-smoke.html


> (October 15, 2009)—
> Statement of Charles D. Connor, American Lung Association President and CEO:
> 
> A new report released by the prestigious Institute of Medicine (IOM), Secondhand Smoke Exposure and Cardiovascular Effects: Making Sense of the Evidence, confirms secondhand smoke exposure to be a significant cause of acute coronary events, including heart attacks, and that there is no safe level of exposure. The report also concluded that relatively brief exposure to secondhand smoke can cause acute coronary events.



http://www.epa.gov/smokefree/healtheffects.html

*The Effects of Secondhand Smoke on Our Health*
Full Article: http://quitsmoking.about.com/cs/secondhandsmoke/a/secondhandsmoke.htm


> Secondhand smoke is a toxic cocktail consisting of poisons and carcinogens. There are over 4000 chemical compounds in secondhand smoke; 200 of which are known to be poisonous, and upwards of 60 have been identified as carcinogens.
> 
> When a cigarette is smoked, about half of the smoke is inhaled / exhaled (mainstream smoke) by the smoker and the other half floats around in the air (sidestream smoke). The combination of mainstream and sidestream smoke makes up environmental tobacco smoke (ETS).





> How Secondhand Smoke Can Affect the Heart
> 
> Heart disease mortality - an estimated 35,000 to 62,000 deaths are caused from heart disease in people who are not current smokers, but who are exposed to ETS
> Acute and chronic coronary heart disease
> ...


http://www.cdc.gov/tobacco/basic_information/health_effects/heart_disease/flash/index.htm 
http://www.healthlinkbc.ca/healthfiles/hfile30a.stm
http://circ.ahajournals.org/cgi/content/abstract/111/20/2684


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## Griff (Nov 1, 2009)

An argument I saw in the comments section involved cigarette smoke versus automobile exhaust. Basically, "exhaust fumes are bad for you too but we don't sue people for driving their cars by our house". What delineates medical harm to others? Is it possible that some actions are less accepted in society because not everyone participates in those actions? Everyone drives a car but not everyone smokes; either of these activities could detrimentally affect the health of someone nearby, but disproportionate attention is paid to one over the other.

I personally would love to never have to breathe secondhand smoke ever again, but I am concerned that this sort of litigation is a step in the wrong direction in the context of civil liberties. I'm kind of playing Devil's advocate here, but I do think that it is a slippery slope to be sure.


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## VentMedic (Nov 1, 2009)

It is sad when the hazards of smoking must be explained to those who are supposed to be in a health care related profession. There is definitely a need for at least college level A&P for entry into EMT school. 



Griff said:


> An argument I saw in the comments section involved cigarette smoke versus automobile exhaust. Basically, "exhaust fumes are bad for you too but we don't sue people for driving their cars by our house". What delineates medical harm to others? Is it possible that some actions are less accepted in society because not everyone participates in those actions? Everyone drives a car but not everyone smokes; either of these activities could detrimentally affect the health of someone nearby, but disproportionate attention is paid to one over the other.
> 
> I personally would love to never have to breathe secondhand smoke ever again, but I am concerned that this sort of litigation is a step in the wrong direction in the context of civil liberties. I'm kind of playing Devil's advocate here, but I do think that it is a slippery slope to be sure.


 

We do have regulations for cars and pollution. If your car fails to meet standards, you will be ticketed and that car parked until it is brought up to standard. We also have regulations for idling a parked car, bus or ambulance near certain areas. Most EDs will not allow an ambulance to sit idling outside of their doors. We also have petitions and lawsuits against building major highways near schools. We have neighborhoods fighting the trucking routes for heavy commerce due to pollution. We have many organizations monitoring the health of children and pollution. this is nothing new and some need to start reading more medical journals other than just looking at the pretty pictures in JEMS to see what is happening in healthcare and the environmental issues.


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## JPINFV (Nov 1, 2009)

I'm disappointed. The Fark headline for that article sucked.


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## Griff (Nov 1, 2009)

VentMedic said:


> It is sad when the hazards of smoking must be explained to those who are supposed to be in a health care related profession. There is definitely a need for at least college level A&P for entry into EMT school.
> 
> 
> 
> ...



Nobody is questioning the detrimental health effects of cigarette smoke. The issue concerns civil litigation against a citizen's otherwise legal behavior on private property. I'm not sure what A&P has to do with that. ^_^


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## VentMedic (Nov 1, 2009)

Griff said:


> Nobody is questioning the detrimental health effects of cigarette smoke. The issue concerns civil litigation against a citizen's otherwise legal behavior on private property.


 
Have you even paid any attention to the arguments for smoke free restaurants, parks and cities?   How about apartment buildings, office buildings and hospitals?  



> I'm not sure what A&P has to do with that.


 
Did you read the other posts in this thread?


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## Griff (Nov 1, 2009)

VentMedic said:


> Have you even paid any attention to the arguments for smoke free restaurants, parks and cities?   How about apartment buildings, office buildings and hospitals?


Yes.



VentMedic said:


> Did you read the other posts in this thread?



Yes.


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## Griff (Nov 1, 2009)

Ah. Looking further into the article reveals that the owner of the smoker's house (the defendant) is the only one in the household eligible to own a home in that community. The other residents are family members that all smoke. So it is feasible that three 1-2 pack/day smokers could create enough smoke to be a hazard, and that seems like a reasonable complaint to me. *The household is composed of the mother, the daughter, the son, and the son-in-law. *

 I would wager (speculative) that the issue goes much deeper than smoking, however.


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## nomofica (Nov 1, 2009)

Griff said:


> Ah. Looking further into the article reveals that the owner of the smoker's house (the defendant) is the only one in the household eligible to own a home in that community. The other residents are family members that all smoke. So it is feasible that three 1-2 pack/day smokers could create enough smoke to be a hazard, and that seems like a reasonable complaint to me. *The household is composed of the mother, the daughter, the son, and the son-in-law. *
> 
> I would wager (speculative) that the issue goes much deeper than smoking, however.



As it always does.


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## VentMedic (Nov 1, 2009)

If the other members of the household are not 55, they may be asked to leave the community unless one can prove they are a primary care giver to the mother who owns the house.   If they are living there without the approval of the Board of that community, they will be in violation and the owner will face stiff penalties.   When someone buys into these communities, they sign a lengthy contract and know the consequences if any violations occur.


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## mycrofft (Nov 1, 2009)

*EL Dorado HIlls is litigious and also downwind from Sacto and Bay Area.*

One person painted her house green instead of tan and instead of talking with her the homeowners' assoc. (representing a SMALL percentage) took her to court a few years ago. A nearby personal  aquaintance was sued for $80K because she and her husband cut a tree on their own property, but the neighbor says it was part of the view from his house and so reduced its value.:wacko:

ED HIlls has other concerns. It sucks up the southern half of Saramento's pollution (Auburn gets the rest), and EDH sits on serpentine rock deposits which release a form of asbestos when disturbed. Another pair of reasons not to smoke there (as well as brush fires).


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## downunderwunda (Nov 1, 2009)

I am a smoker. I know the damage it does to me. 

What I am doing is, under the law legal.

I smoke outdoors to minimise the impact on my family. 

I agree on restrictions on smoking indoors in workplaces, cafe's etc. However, in my own yard, outdoors, why should I not have the freedom to light up then? What will be next, someone sues because the person next door can be seen from 1 window of the house sunbaking nude & they disagree with their body shape & find it offensive?


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## rescue99 (Nov 1, 2009)

Griff said:


> Ah. Looking further into the article reveals that the owner of the smoker's house (the defendant) is the only one in the household eligible to own a home in that community. The other residents are family members that all smoke. So it is feasible that three 1-2 pack/day smokers could create enough smoke to be a hazard, and that seems like a reasonable complaint to me. *The household is composed of the mother, the daughter, the son, and the son-in-law. *
> 
> I would wager (speculative) that the issue goes much deeper than smoking, however.



Hog wash! Smoke isn't pleasant, especially cigar smoke..yuck. I dispise booze, the smell, the taste, the way people behave when they drink. Not to mention all of the health affects of booze. It's a nuisance and a serious health risk yet, if someone drinks it is their choice. Despite the health and welfare affects on everyone booze comes into contact with, it's still legal. Similarly, a person smoking in their own back yard is certainly not something worth wasting the courts time over. A responsible judge would dismiss it as frivolous. 

Perhaps tossing the free loaders out who shouldn't be living there is more of an angle in reality but, it won't prevent any visitors from stepping outside for a smoke. ^_^


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## Akulahawk (Nov 1, 2009)

VentMedic said:


> If the other members of the household are not 55, they may be asked to leave the community unless one can prove they are a primary care giver to the mother who owns the house.   If they are living there without the approval of the Board of that community, they will be in violation and the owner will face stiff penalties.   When someone buys into these communities, they sign a lengthy contract and know the consequences if any violations occur.


That is not always the case. Age restricted communities can require that a primary resident be of age, but they may or may not be able to restrict all members of that family that do not meet the age requirement from living there. If they do restrict all residents to a particular age, it would have to be written into the contract or CC&R's that way. If there's no such provision in the contract or CC&R's, if they were to be "asked" to leave, that would give the residents a cause of action against the HOA.


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## Akulahawk (Nov 1, 2009)

As to the lawsuit, there may or may not be a civil case... but I'd almost wager that the suit will be tossed out.


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## VentMedic (Nov 1, 2009)

Akulahawk said:


> That is not always the case. Age restricted communities can require that a primary resident be of age, but they may or may not be able to restrict all members of that family that do not meet the age requirement from living there. If they do restrict all residents to a particular age, it would have to be written into the contract or CC&R's that way. If there's no such provision in the contract or CC&R's, if they were to be "asked" to leave, that would give the residents a cause of action against the HOA.


 
If you look at this community, it does follow the laws of age restriction to the letter in their real estate notices.   

California is like Florida and Arizona in this respect about the disclosure of the restriction in their bylaws and their carefully worded real estate announcements.  

There also have been enough previous challenges of these age restrictions to where these communities now know about advertisement and their bylaws stressing disclosure of the ages of all living at that residence.  Once they give way to someone 54.5 y/o, they have opened the door to toddlers.


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## VentMedic (Nov 1, 2009)

Akulahawk said:


> As to the lawsuit, there may or may not be a civil case... but I'd almost wager that the suit will be tossed out.


 
That would depend on property lines and how the California law "nothing offensive to the senses" will be interpreted.


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## bunkie (Nov 2, 2009)

I hate the smell of pine-sol. It irritates my asthma and makes me queasy. I lived in a duplex and my neighbor happened to love the stuff. Every single time she cleaned with it I could smell it in my house. 

Smoke is a whole different soapbox for me. When I was out trick or treating with my kids I walked through countless clouds of smoke as people walked _with_ their kids, sucking on cigarettes. You want to contaminate your kid I'll call you a crappy parent, but you willingly contaminate mine and its fighting turf there. I asked a few of them to put their cigarettes out. By the end of the night I was in full scale asthma attack territory. So if my neighbors smoke is coming to my house, I'd def do something about it. I dont want to breathe it and I certainly dont want my kids breathing it. 

You want to pollute yourself, by all means. Have at it, but you wont pollute my kids or me.


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## downunderwunda (Nov 2, 2009)

bunkie said:


> I hate the smell of pine-sol. It irritates my asthma and makes me queasy. I lived in a duplex and my neighbor happened to love the stuff. Every single time she cleaned with it I could smell it in my house.
> 
> Smoke is a whole different soapbox for me. When I was out trick or treating with my kids I walked through countless clouds of smoke as people walked _with_ their kids, sucking on cigarettes. You want to contaminate your kid I'll call you a crappy parent, but you willingly contaminate mine and its fighting turf there. I asked a few of them to put their cigarettes out. By the end of the night I was in full scale asthma attack territory. So if my neighbors smoke is coming to my house, I'd def do something about it. I dont want to breathe it and I certainly dont want my kids breathing it.
> 
> You want to pollute yourself, by all means. Have at it, but you wont pollute my kids or me.


As I have stated, I am a smoker. If someone approaches me & asks, I will usually put it out, depending on their tone. However, it is _legal_ for me to smoke & I am in my yard, im sorry if it wafts into your house, but there is an easy solution. clse the window or door for 10 minutes. Problem solved. 

Smokers are not out just to piss you off. 

Until they make it illegal, harden up.


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## Akulahawk (Nov 2, 2009)

VentMedic said:


> If you look at this community, it does follow the laws of age restriction to the letter in their real estate notices.
> 
> California is like Florida and Arizona in this respect about the disclosure of the restriction in their bylaws and their carefully worded real estate announcements.
> 
> There also have been enough previous challenges of these age restrictions to where these communities now know about advertisement and their bylaws stressing disclosure of the ages of all living at that residence.  Once they give way to someone 54.5 y/o, they have opened the door to toddlers.


Yes, provided that they "give way" to a party that doesn't meet the qualification. What isn't mentioned in the article is the ages of all those persons living there. If everyone is over 45... and the mother (primary resident) is over 55... guess what? They're all legally living there. That may or may not be the case, but it's certainly possible. 

Here's the relevant law for ages: 


> Any such limitation
> shall not be more exclusive than to require that one person in
> residence in each dwelling unit may be required to be a senior
> citizen *and that each other resident in the same dwelling unit may be
> ...





VentMedic said:


> That would depend on property lines and how the California law "nothing offensive to the senses" will be interpreted.


Yep. Nuisance law. It possibly qualifies as a private nuisance, unless it can be shown that more than that one neighboring property is affected. Then it would become a "public nuisance". Who knows, the suit may actually survive to trial.


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## mycrofft (Nov 2, 2009)

*If it intrudes, is reasonsble and a compromise cannot be reached or it is dangerous..*

Suit time.
And I don't mean C&R Clothiers!


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## rescue99 (Nov 2, 2009)

downunderwunda said:


> I am a smoker. I know the damage it does to me.
> 
> What I am doing is, under the law legal.
> 
> ...



I am *not* a smoker and I agree with you Downunder. Outside in your own back yard is your business. Everyone has a bad habit that annoys or is potentially harmful to others....we need to get over it. As long as people demonstrate a reasonable effort to be polite when they smoke, we need to be a more tolerant. At least they aren't slobbering drunks claiming the right to "celebrate." There is nothing fun about being subjected to it and the habit is a drain on society. Do we have the right to drink? Yep..sure do. Therefore, it is me who must adjust.


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## Sasha (Nov 2, 2009)

downunderwunda said:


> As I have stated, I am a smoker. If someone approaches me & asks, I will usually put it out, depending on their tone. However, it is _legal_ for me to smoke & I am in my yard, im sorry if it wafts into your house, but there is an easy solution. clse the window or door for 10 minutes. Problem solved.
> 
> Smokers are not out just to piss you off.
> 
> Until they make it illegal, harden up.



Sorry, your right to smoke ends at other people's right not to breathe in second hand smoke. You want to smoke cigarettes? Keep your smoke away from others, or smoke inside your house. I have no sympathy for smoker's rights, they are not just impacting their own health but others around them as well.


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## rescue99 (Nov 2, 2009)

Sasha said:


> Sorry, your right to smoke ends at other people's right not to breathe in second hand smoke. You want to smoke cigarettes? Keep your smoke away from others, or smoke inside your house. I have no sympathy for smoker's rights, they are not just impacting their own health but others around them as well.



I feel the exact same way about drinking. I am NOT a smoker yet, believe what's good for the goose is good for the gander. Unless we prohibit the public and private use of ALL disgusting substances that directly or indirectly harm those around us....such as being stinkin drunk in public for example, we have to be more tolerant period. As long as it is legal, there isn't a whole lot else we can do except punish those who violate safe practice perhaps. 

I hope we're as eager to revive alcohol prohibition right along with a ban on smoking. Alcohol murders far exceed drive by smoking deaths. Alcohol related crimes far exceed smoking crimes in general. Every time someone steps behind the controls of a vehicle with a single drink in their system he/she violates the safety of virtually everyone around them. The risk isn't limited to the closest neighbor. Right is right. Ban one bad habit, ban em all.


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## Sasha (Nov 2, 2009)

rescue99 said:


> I feel the exact same way about drinking. I am NOT a smoker yet, believe what's good for the goose is good for the gander. Unless we prohibit the public and private use of ALL disgusting substances that directly or indirectly harm those around us....such as being stinkin drunk in public for example, we have to be more tolerant period. As long as it is legal, there isn't a whole lot else we can do except punish those who violate safe practice perhaps.
> 
> I hope we're as eager to revive alcohol prohibition right along with a ban on smoking. Alcohol murders far exceed drive by smoking deaths. Alcohol related crimes far exceed smoking crimes in general. Every time someone steps behind the controls of a vehicle with a single drink in their system he/she violates the safety of virtually everyone around them. The risk isn't limited to the closest neighbor. Right is right. Ban one bad habit, ban em all.



You CAN get in trouble for public drunkness. You also can get arrested for beating your wife intoxicated or not. It is illegal to drive drunk. There are safety percautions. They tried to ban drinking a long time ago, prohibition ring a bell? It actually increased alcoholism rather than decreasing it. So they limit and regulate alcohol consumption and criminalize dangerous alcohol related behaviors.

I have yet to see a smoker go to jail for posioning their kids  lungs with that crap, yet a child can be taken away from a parent with alcoholism.


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## bunkie (Nov 2, 2009)

downunderwunda said:


> As I have stated, I am a smoker. If someone approaches me & asks, I will usually put it out, depending on their tone. However, it is _legal_ for me to smoke & I am in my yard, im sorry if it wafts into your house, but there is an easy solution. clse the window or door for 10 minutes. Problem solved.
> 
> Smokers are not out just to piss you off.
> 
> Until they make it illegal, harden up.



I was married a smoker for 6 years. He quit for a few years but is smoking again. I consider myself quite hard on the subject.


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## VentMedic (Nov 2, 2009)

Sasha said:


> I have yet to see a smoker go to jail for posioning their kids lungs with that crap, yet a child can be taken away from a parent with alcoholism.


 
It is illegal in some states to smoke with a child in the car.

Also, if a child is brought to the ED with respiratory problems and a high carboxy Hb level, that can be used against the patients if the living situation is questionable and if serious enough, they can be charged with child endangerment especially if they know the child has a preexisting condition and they have already been counseled.


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## downunderwunda (Nov 2, 2009)

Sasha said:


> Sorry, your right to smoke ends at other people's right not to breathe in second hand smoke. You want to smoke cigarettes? Keep your smoke away from others, or smoke inside your house. I have no sympathy for smoker's rights, they are not just impacting their own health but others around them as well.





Then make it illegal to smoke sasha. 

Then are you willing to accept the increases in taxes?

What I am saying is outdoors it usually will dissipate before it effects anyone. 

If we get to this point, & it is offensive, then do we ban farting in public?


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## VentMedic (Nov 2, 2009)

It is a little more than just the offensive smell.  

Since the Heart Lung Bill, FDs have gotten better rates on insurance.

Hospitals that have banned hiring employees that smoke and giving notice to those that have failed to quit after given ample time and free services have also reaped the benefits as have the employees with reduced insurance premiums.    This is also experienced by many other companies that are not involved in health care.  Many of the high tech firms went with smoke free employees many years ago.


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## rescue99 (Nov 2, 2009)

VentMedic said:


> It is illegal in some states to smoke with a child in the car.
> 
> Also, if a child is brought to the ED with respiratory problems and a high carboxy Hb level, that can be used against the patients if the living situation is questionable and if serious enough, they can be charged with child endangerment especially if they know the child has a preexisting condition and they have already been counseled.



I think you are making my case...if a substance is offensive or a risk to the safety and welfare of others...why not go all the way and ban it all? I both understand and respect a person's right to consume legal substances within the parameters of the law. I hate brussel sprouts and I'm highly allergic to shell fish too! I'd dearly love to ban both but, both are legal. What to do, what to do??? <_< Arbitrary prohibition isn't the answer. Tolerance and being respectful of those around us is a reasonable expectation however. Makes much more sense to defend that if we really want to defend a cause.


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## VentMedic (Nov 2, 2009)

rescue99 said:


> I think you are making my case...if a substance is offensive or a risk to the safety and welfare of others...why not go all the way and ban it all? I both understand and respect a person's right to consume legal substances within the parameters of the law. I hate brussel sprouts and I'm highly allergic to shell fish too! I'd dearly love to ban both but, both are legal. What to do, what to do??? <_< Arbitrary prohibition isn't the answer. Tolerance and being respectful of those around us is a reasonable expectation however. Makes much more sense to defend that if we really want to defend a cause.


 
As with alcohol, which is legal, you have the right to consume it as long as it does not become offensive or endanger others.    One has to differentiate between the willful actions of a person and the substance itself which is now the argument pro marijuana in California.   If you forced a child to eat shell fish knowing they were allergic to them, you would be responsible for the action and the shell fish would not be the ones to blame.  If you intentionally blow smoke into your asthmatic child's face to where the child may become ventilator dependent with permanent health issues, your actions are what you were in control of.


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## mycrofft (Nov 3, 2009)

*We need a tobacco diversion program*

Case could be made for ADA protection if tobacco addiction is perceived as a handicap.


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## Seaglass (Nov 3, 2009)

Smoking is disgusting and harmful, but I won't complain unless it's seriously bothering me. Same goes for people with heavy perfume. In public, it's also a case of whether I need to be there or can leave, and who was there first. 

I'd never support banning anything you do to yourself in private, but public bans on smoking make plenty of sense to me. 



mycrofft said:


> Case could be made for ADA protection if tobacco addiction is perceived as a handicap.



I don't think any other addictions are (someone correct me if I'm wrong on that...), while asthma and allergies have already been established as disabilities. In a direct conflict, I suspect the condition with the established history of being covered would win out.


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## VentMedic (Nov 3, 2009)

Seaglass said:


> I'd never support banning anything you do to yourself in private, but public bans on smoking make plenty of sense to me.


 
Do you approve of the Heart and Lung Act for FFs and other Public Safety Officers?   Do you understand why  that Bill was passed and is needed?


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## Seaglass (Nov 3, 2009)

VentMedic said:


> Do you approve of the Heart and Lung Act for FFs and other Public Safety Officers?   Do you understand why  that Bill was passed and is needed?



I'm actually not familiar with it, and not finding anything with full text online, except for something in PA that doesn't seem all that relevant. Would you mind posting a link?


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