FARAI CHIDEYA, host:
I'm Farai Chideya, and this is NEWS & NOTES.
There's just about nowhere left to smoke in California. Restaurants and bars have banned it, many beaches and parks, too. And now some California cities want to stop the smoke that drifts from someone's home or apartment into another person's space.
From member station KQED in San Francisco, Sarah Varney reports.
SARAH VARNEY: California was the first state to fire a warning shot into the final frontier for smokers - their homes. Earlier this year, the state agency that protects air quality declared second-hand smoke a toxic air contaminant. The same classification as cancer-causing benzene and diesel exhaust. A few months later came a second warning.
Dr. RICHARD CARMONA (Former U.S. Surgeon General): There is no risk-free level of second-hand smoke exposure.
VARNEY: Then-U.S. Surgeon General Richard Carmona.
Dr. CARMONA: The science is clear. Second-hand smoke is not a mere annoyance, but a serious health hazard that causes premature death and disease in children and non-smoking adults.
VARNEY: But while state agencies can regulate toxic air pollutants outside and in workplaces, they have no authority to ensure residents breath clean air in their homes, so cities and counties increasingly turning to the ancient legal fairy of public nuisance. You can do what you'd like on your own property until it bothers other people. If your neighbor repeatedly plays loud music late at night or burns tires in his backyard, you can take him to court.
Calabasas in Los Angeles County became the first California city to add second-hand smoke to the list of public nuisances earlier this year. When council members in Dublin, a suburb east of San Francisco, decided to follow suit, they were forced to confront questions about how far government should go to protect public health.
During public testimony at the Dublin City Council meeting, smoker Berg Cane(ph) described how smoker-friendly ground is vanishing under his feet.
Mr. BERG CANE (Smoker): Used to be I could smoke outdoors. And then I couldn't smoke that close outdoors. I had to stay away from the front door. Then I could smoke in my home. My wife wouldn't let me. I had to go out in the garage or out on the patio. Now I can't even smoke on my patio, although I can fire up my grill. I'm often reminded that I am a minority when it comes to smoking. In fact, a second class citizen.
VARNEY: Dublin Mayor Janet Lockhart retorted that's because smoking causes heart disease and cancer.
Mayor JANET LOCKHART (Dublin, California): They haven't said that about barbecue smoke or perfume. But this, they have. It kills people. And I don't see - to me, it just, it boggles my mind how people can go off on the deep end on this and not realize the dangers inherent in second-hand smoke.
VARNEY: Government does regulate certain private behavior, Mayor Lockhart told residents at the meeting, when that behavior threatens the liberties of other citizens.
Mayor LOCKHART: This is about civil liberties. It's about the civil liberties of 86 percent of the population of California. They have the right not to breathe second-hand smoke. They have the right to be in their bedroom, in their living room, and not have to put on a respirator or to sleep in their car. They have that right.
VARNEY: If non-smokers once shied from confrontation, those days seem to be coming to a close. As the number of smokers declines - it's now only 14 percent - some who want to live smoke free, like John Berk(ph), are becoming restless.
Mr. JOHN BERK (Non-smoker): I'm going to take you for a mini tour of the complex. And we're going through here. This is one of the pools. I'll show you around.
VARNEY: John Berk walks past the swimming pool at the Oakwood Garden Apartments in Woodland Hills, just north of Los Angeles.
Mr. BERK: There's a basketball court here. It's (unintelligible) tennis courts. Here is the children's playground area.
VARNEY: All of the amenities a young family might want. But Berk's five-year-old daughter Melinda(ph) has asthma and often can't swim or use the playground because drifting second-hand smoke makes it difficult for her to breath. Berk says he's pleaded with Oakwood for years to do something about it.
Mr. BERK. And often people will sit on these benches here, along the perimeter and on the grass here, and smoke while the children are playing here.
VARNEY: Landlords can set rules for smoking, much like they do with pets. Berk says he can't afford to move, and even if he could, there's no guarantee his daughter won't be exposed to second-hand smoke at another apartment. A day after the U.S. surgeon general declared that there is no safe level of exposure to second-hand smoke, Berk filed a lawsuit against Oakwood, the largest rental housing company in the world. The lawsuit asked Oakwood to ban smoking in the common areas and for the court to award punitive damages.
Oakwood spokesman Jessica Shih said the company wouldn't comment on the lawsuit, but said Oakwood follows all state laws. Carol Berk says when she and her husband asked smokers to extinguish their cigarettes when Melinda is playing, civility can break down.
Ms. CAROL BERK (Wife of John Berk): I've had people come up to me and say I have a right to smoke, and just blow smoke right in my face, you know. People can be pretty nasty about it. John fights back, I just leave. I just leave.
VARNEY: Some landlords and apartment owners, though, are responding to tenants' demands. The California Apartment Association, whose members own more than two million units around the state, posted a notice on their Web site about how to alter a lease to prohibit smoking in living units and common spaces.
The association's attorney, Heidi Pulutke, says she doesn't know how many landlords are changing their leases to smoke free, but she was surprised by the reaction to a recent article she wrote in the association's magazine.
Ms. HEIDI PULUTKE (Attorney, California Apartment Association): Of all the things I've written for a magazine, that's the thing I've gotten the most calls about. I think the most common call is, oh this is great, I had no idea I could do this.
VARNEY: Pulutke says property managers had believed renters had a right to smoke. But that's not the case says Robin Salsburg, an attorney with a Public Health Law Program.
Ms. ROBIN SALSBURG (Attorney, Public Health Law Program): Smokers are not a protected class under the Constitution. The Constitution protects people, characteristics of people that you're born with - your race, your ethnicity, your gender. Smoking is a habit.
VARNEY: The U.S. surgeon general's report, says Salsburg, has forced landlords and affordable housing agencies to take second-hand smoke more seriously because they could held liable for the health risks. That's likely to benefit lower income and African-American families the most, says Salsburg, because they tend to rent or live in government-subsidized housing. African-Americans, though, have the highest rate of smoking in California, and it remains to be seen whether the efforts to clamp down on second-hand smoke will cause them to quit.
For NPR News, I'm Sarah Varney in San Francisco.