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NYC May Ban Sidewalk Smoking Nothing New

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New York City is considering banning smoking while smokers are on a sidewalk, and some commentators are acting as it were a novel if not unique restriction on what some argue are the rights of smokers.

But public interest law professor John Banzhaf, who helped get the first such smoking ban in 2006 when Calabasas, CA, restricted all outdoor smoking to a small number of designated smoking areas (about the size of a parking space), says outdoor smoking bans are clearly nothing new, with thousands already in effect, and effective in protecting nonsmokers throughout the United States. “Beautiful downtown Burbank,” made famous by Johnny Carson and his “Tonight Show,” is another example.

Moreover, he says, in additional to the annoyance and physical irritation many nonsmokers experience when they are forced to breathe secondhand tobacco smoke in public places, there is solid scientific evidence that it can and does pose a health risk, especially to the estimated 100 thousand Americans (including children) who have medical conditions such as asthma, hay fever, sinusitis, rhinitis, allergies, etc. which make them especially susceptible. Banzhaf also helped establish that such individuals are entitled to special protection under the law, especially under the Americans With Disabilities Act [ADA].

Brian King, an expert on deadly secondhand smoke with the Centers for Disease Control [CDC] noted years ago,”There’s no risk-free level of secondhand smoke.” California has officially designated secondhand tobacco smoke as a toxic air contaminant, while the federal government includes it – along with asbestos – as a known carcinogen. More than ten years ago, the published findings of several Stanford University researchers was that secondhand smoke exposure levels can be significant near an active smoker.

Banzhaf also noted that, for the same reason, he has been able to help obtain court orders in the great majority of states banning smoking in private homes in order to protect children involved in divorce proceedings, and that several parents have lost custody of their children for smoking in their presence.

Clearly the courts are convinced that secondhand tobacco smoke – known to kill almost 50,000 Americans each year, and to raise the risk of a heart attack in exposed nonsmokers to that of a smoker after only a brief exposure – is dangerous enough to warrant complete smoking bans, even in private homes, and also even in institutions where smoking patients may be committed involuntarily.

Moreover, reports Banzhaf, every court in every country which has addressed the issue has ruled that there is no legal right to smoke anywhere around others, just as there is no legal right to consume alcoholic beverages, gamble, or expose one’s genitals near them, including NYC sidewalks.

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John F. Banzhaf

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