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Your Right to Brandish Your Cigarette Stops at My Nose

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Message Daniel Braun

Mayor Michael Bloomberg ignited controversy when he announced that he planned to propose legislation requiring residential buildings to adopt written policies disclosing where in those properties smoking would be prohibited. Audrey Silk, founder of a city smokers' rights group, has already stated that "there is nothing innocent" about this bill, warning that it is the first step in prohibiting smoking in people's homes. Ms. Silk is partially correct, for it would be a grave mistake to rush to pull the legislative trigger. We are all coming to learn the price of thoughtless, intrusive legislation.  

Ms. Silk's concerns are understandable, but incomplete. The Government should not be concerned with what individuals do in the privacy of their own homes. A lingering concern, no doubt, is about where such governmental intrusions will end. What's next, a rule about what must be the color of one's bed sheets? 

Both Mayor Bloomberg and Ms. Silk seem to be missing a key point. Smoking cigarettes is not simply about what one does in the privacy of one's home. If one merely lights up a cigarette in one's apartment, and neither the odor nor the cigarette's toxins waft into a neighbor's apartment, then there exists no issue here. What one does to one's own body in the privacy of his or her home is, generally speaking, exclusively that individual's business. 

The problem is that the reality in New York City, where people live in close proximity to one another, is different. 311, for instance, received well over 2000 complaints about secondhand smoke in residences, in 2012 alone. 

It would be wrong for anyone to suggest that smokers have no rights. But it would be equally incorrect to assume that smokers have the right to do anything they please, even in their own homes. No one has ever enjoyed such rights.  

Generally, one cannot throw loud parties late at night in their private apartment. Any argument that prohibiting such disturbances impinges upon what one has the right to do in one's home would be incredulous -- neighbors have rights too. 

And this is the key. Cigarette smoke from one's neighbors represents a nuisance. Simply put, such noxious fumes prevent the reasonable use and enjoyment of one's property.  

It is somewhat problematic, then, to see Dr. Thomas Farley, the commissioner of New York City's Department of Health and Mental Hygiene, and Mayor Bloomberg, do an awkward dance around this issue and propose legislation requiring residential buildings to disclose information about smoking to its prospective tenants and owners.  

In this respect, Ms. Silk's concerns about the government prohibiting smoking in people's homes are probably quite well founded. A requirement that residential buildings provide such information to prospective tenants and owners about building smoking rules, could foreseeably crowd out smokers. Most individuals nowadays do not even wish to spend a few nights in a smoker-friendly hotel, never mind live in a smoker-friendly building. The Mayor's proposed legislation would essentially require residential buildings to make a decision: yes or no to smoking. It is not difficult to guess what option most buildings will likely chose. 

But the fact that Dr. Farley has stated that this proposed new policy is "just disclosure" indicates that the Administration is trying to play down the impact of this legislation, in an attempt to appease all sides of the spectrum. In other words, New Yorkers are to believe that this new legislation will not be offensive to their rights, but rather simply help prospective tenants and owners make better informed decisions. 

It seems that a better, though perhaps less politically expedient approach, would be to take a stand on the basis of individual rights. We are all familiar with the legal adage: generally, my right to swing my fist stops at your nose. Similarly, a person's right to light a cigarette in their apartment ought to end where their neighbor's unit begins. Just as one should have the right to smoke in one's apartment, so too should one have the right to be free of cigarette smoke in one's home.  

Yet, there is no justification for Bloomberg's proposed legislation. Existing nuisance laws and lease terms pertaining to odors and noxious fumes should suffice. Let's enforce them. 

If a residential building has a ventilation system that adequately filters the air between units so that cigarette fumes do not travel from one apartment to another, then an individual should be free to smoke in his apartment if he pleases, even though this might not be in his own best interest. Once that cigarette smoke crosses the threshold of another person's apartment, however, then it's time to light up somewhere else. Smokers and non-smokers alike have rights, and it is time to understand the nature and limits of these first, before we promulgate new legislation.

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Daniel Braun is an attorney in New York.
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Your Right to Brandish Your Cigarette Stops at My Nose

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