Tel Aviv court upholds fine against trendy café that failed to prevent outdoor smoking

British parliament prohibits smoking in all vehicles with passengers who are minors.

By JUDY SIEGEL-ITZKOVICH
File picture of Fidel Castro smoking a cigar during interview with the press in Havana (photo credit: REUTERS)
File picture of Fidel Castro smoking a cigar during interview with the press in Havana
(photo credit: REUTERS)
In a precedent-setting ruling, the Tel Aviv District Court rejected a fashionable cafe’s appeal of a lower court ruling in which the establishment was fined for failing to prevent customers from smoking outdoors.
District Court Judge Ruth Lebhar-Sharon ruled last week that the plaintiff, Gal Yefet, should get NIS 3,000 in compensation from the Reviva and Celia – Restaurant and coffee shop, where many Tel Aviv celebrities dine.
Judge Naama Peres handed down the original ruling in favor of Yefet at the hearing in the Tel Aviv small claims court that the coffee house appealed. Lebhar-Sharon proposed, after looking into the arguments of both parties, that the appeal be denied.
Under a 2012 amendment, smoking is banned not only inside an establishment but also outdoors. However, the owner may designate a smoking area. According to the judgment, three principles must be observed if the owner wants to designate an outdoor smoking area.
The appeal set a precedent, in which people should not be exposed to secondhand smoke, even outdoors, if they are seated in a non-smoking part of the outdoor space or at any other open public place, explained the plaintiff’s lawyer, Amos Hausner.
“Any leak of the toxic substances in tobacco to the non-smoking area, even outdoors, is a violation of the law. This applies to all outdoor places where a smoking area may be designated,” he said.
“In outdoor places where smoking is totally banned, such as swimming pools and Jerusalem light-rail platforms, this principle applies far and beyond,” Hausner continued. “The owners, and those in charge, must be aware that exposure to secondhand smoke is dangerous and causes diseases, disability and death.”
In addition, owners of public places must ensure that all customers who wish to sit in a non-smoking part of the facility will be accommodated accordingly, said the lawyer.
“The owners cannot respond that there is no availability. This is a basic principle of the consumer culture and norms of service. A violation of the duty will result in compensation.
Currently, there are pending class actions [suits] to this effect.”
Finally, if smoking is allowed outdoors in designated areas, there must be very clear signs stating where smoking is banned and where it is allowed. “Otherwise,” said Hausner, “there can be no valid designation of ‘smoking areas’ in outdoor places defined as public places by the law.”
Asked by The Jerusalem Post about the failure of the Jerusalem Municipality to issue even one NIS 1,000-per-violation ticket against the tens of thousands of violators at light-rail stations (visible by the number of cigarette butts on the sidewalk) since it was opened over three years ago, Hausner said this falls under the same amendment, and that at this municipal facility used by 140,000 passengers daily, all provisions of the ban on outdoor smoking are applicable.
The Health Ministry spokeswoman, in response to the Post, sent only a link to its annual Smoking Report and its website, saying that “the authority to enforce the smoking laws and giving fines are the responsibility of the local authorities. The law enables the health minister to set regulations about various topics involving enforcement.”
The spokeswoman added that the ministry’s Department for Prevention of Smoking in Public Places in its Enforcement and Supervision Branch “is in regular contact with the local authorities, cooperates in enforcement campaigns and supervises and encourages the enforcement of laws to prevent smoking.”
But she did not answer directly the question of non-enforcement by the municipality of no-smoking laws at light-rail stations.
Jerusalem Mayor Nir Barkat’s municipal spokesman did not comment by press time.
Meanwhile, a regulation passed by the British Parliament has shown how much Israel lags behind in legislating against smoking.
The UK parliament took action that, starting October 1 this year, it will make it illegal to smoke (or fail to prevent smoking) in England in cars with passengers under the age of 18.
According to the latest issue of the British Medical Journal, which quoted the British Lung Foundation, an estimated 430,000 British children are exposed to secondhand smoke in their family car every week. Public Health Minister Jane Ellison told the Journal that 3 million children have been exposed to secondhand smoke in cars, putting their health at risk.
“We know that many of them feel embarrassed or frightened to ask adults to stop smoking, which is why the regulations are an important step in protecting children from the harms of secondhand smoke.”
The medical journal added that the Royal College of Physicians called for such a ban in 2010 when it released its Passive Smoking and Children report. The report estimated that passive smoking caused an annual 20,000 cases of lower respiratory tract infection, 120,000 cases of middle-ear disease and 22,000 new cases of wheezing and asthma in the UK.
Hausner said that the late Yisrael Beytenu MK Yuri Stern initiated a private member’s bill barring smoking in vehicles with child passengers before he died of cancer at the age of 58 in 2007.
“The bill did not have progress due to his medical condition. There is a justification that the driver does not smoke at all, as it is a distraction. During the last session of the Knesset, the Drug Abuse Committee heard a very interesting study that tested drivers after they smoked a water pipe and found their abilities to react were similar to those after consuming a lot of alcohol.”
Edna Peleg-Olevsky, the Israel Cancer Association’s spokeswoman and information director, said that in 2013, it ran an awareness campaign on the dangers caused by smoking in vehicles, not only regarding attention to the road but when tiny particles of smoke not only enter children’s lungs but also remain in the upholstery of the vehicle, causing “thirdhand smoking damage” to passengers.
Finally, Dr. Yael Bar-Ze’ev, head of the Israel Medical Society for the Prevention of Smoking and Smoking Cessation, stated: “I don’t know whether Israeli is ripe for legislation like that in the UK, but I and our society would surely support it. Before such a law is passed, it should be preceded by an information campaign on keeping homes and vehicles free of tobacco smoking and one also for the medical community who would advise parents not to smoke in cars and homes.”