More than 12 million premature deaths over the past 40 years were attributable to smoking . Smoking is the leading cause of preventable death in the United States . The California Air Resource Control Board declared secondhand smoke a “TOXIC AIR CONTAMINANT” and concluded that there is no safe level of exposure . Resolution 06 - 01 , Cal . Air Resources DB . ( 2006 ) . So automatically , secondhand smoking is always dangerous and therefore nuisance pursuant to CAL . CIV . CODE § 3479 . So , pursuant to CAL . CIV . CODE §50 , can the force be used to abate danger caused by secondhand smoking ? If not why not ? Please explain the reasoning . ( Some lawyers speak about " right to smoke " ) . Thanks !
Generally, the use of force referred to under Civil Code 50 relates to the use of force in self defense, where is there is real and imminent threat of physical harm. Unlike a situation where someone is physically threatening you or your family, you can easily move away from most locations where there is second hand smoke.
Since California law specific prohibits smoking in some location and expressly authorizes it other locations, smoke is not always a nuisance. Further, injury from second hand smoke is based upon long term exposure, thus there is probably no imminent threat of physical harm. Finally, you have many other remedies available besides force. In sum, using force to abate issues created by second hand smoke is probably likely to cause more harm than good.
Construction / Development Lawyer
No, you cannot use force to stop someone from smoking. Doing so could land you at the wrong end of a battery or assault charge. Perhaps you might be justified if someone intentionally blows smoke directly in your face, but simply being exposed to secondhand smoke from a neighbor is probably not sufficient grounds to justify the use of force.
Santa Monica has some pretty restrictive laws on smoking and a restrictive rent control laws. Contact the city or the rent control board. They may be able to help or give you advice.
If the neighbor is a tenant in your building, then you can also call your landlord.