On June 28, 2006, Melinda Birke, a five-year old girl who suffers from asthma, and "a minor by and through her Guardian ad Litem," sued Oakwood Garden Apartments [OGA] in Woodland Hills, California, asking the Los Angeles County Superior Court to issue "an order enjoining Defendants from permitting the acts alleged in this Complaint to have caused special injury to Plaintiff and to have affected a substantial number of residents and guests of the OGA."
The "acts alleged" in the case relate to allowing other tenants in the OGA complex to smoke tobacco products in open common areas within the apartment complex, where the plaintiff has encountered, and, absent judicial action, will continue to encounter, second-hand tobacco smoke, causing her harm.
an interview with Debra Carlton, Senior Vice President, Public Affairs, California Apartment Association about smokefree apartment complexes
California Politics Today spoke this afternoon with Debra Carlton, Senior Vice President, Public Affairs, California Apartment Association (CAA), about the position of her organization towards the concept of smokefree apartment complexes.
You can listen to that conversation, in its entirety, by clicking
here.
During that interview, Ms. Carlton said, among other things, that the CAA lacked "guidance" from the California Legislature on this issue; that landlords do have the legal authority to prohibit their tenants from smoking, either inside of their rental units or in outdoor common areas in their apartment buildings, or both; that existing rent control regulations in place in certain jurisdictions in California prohibit the substantial reduction in agreed-upon tenant rights, such as the right to smoke in common areas or in rental units, but that the California Legislature could override this restriction if it so chose; and that apartment owners were, in part, bearing the brunt of an anti-smoking movement that hasn't yet been able to convince the Legislature to ban smoking in places where it generates unwanted second-hand smoke.
Ms. Carlton agreed that an individual's right to generate toxic and carcinogenic second-hand tobacco smoke was the only existing exception to the general legal rule that disallows individuals from generating and releasing into the ambient air of others toxic and carcinogenic chemicals.
from attorney Michael Sohigian's brief on behalf of Melinda Birke
Paragraph 12 of the brief filed in the case of
Birke v. Oakwood Garden Apartments by attorney Michael Sohigian in the Superior Court for the State of California, County of Los Angeles, Northwest District (Case No. LC075094) alleges that:
"The harm attendant to these conditions is serious. On January 26, 2006, the California Air Resources Board (the "CARB")
identified environmental tobacco smoke (ETS), or second-hand smoke, as a Toxic Air Contaminant: "an airborne toxic substance that may cause and/or contribute to death or serious illness."
Paragraph 13 of that brief alleges that:
"On June 27, 2006, the Office of the Surgeon General of the United States (the "Surgeon General"), the nation's highest public health officer, issued
a comprehensive scientific report which concludes that there is no risk-free level of exposure to secondhand smoke, and that nonsmokers exposed to secondhand smoke at home or work increase their risk of developing heart disease by 25 to 30 percent and lung cancer by 20 to 30 percent, a finding the Surgeon General described as "of major public health concern due to the fact that nearly half of all nonsmoking Americans are still regularly exposed to secondhand smoke."
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