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Court rejects suit against Espresso Bar for failure to enforce non-smoking law
By YONAH JEREMY BOB
11/12/2013
Nonsmokers’ rights found no legal help on Wednesday as the Tel Aviv District Court.
 
Nonsmokers’ rights found no legal help on Wednesday as the Tel Aviv District Court dismissed a class-action lawsuit against the Espresso Bar coffee chain for having allegedly failed to comply with its obligations under a 1992 law to prevent smoking in public spaces.

On April 4, 2012, a couple, along with their grandchild, visited an Espresso Bar at 7 Ben-Gurion Street in Herzliya.

The couple was seated inside, per their request to be in a nonsmoking section.

However, the couple complained that the door from the outdoor smoking section was being left ajar, allowing waves of smoke to enter the nonsmoking area from the outdoor smoking section.

The waitress to whom the couple complained declined to fully close the door separating the indoor nonsmoking and outdoor smoking sections because of the need for quick access between the sections.

The couple added that even if the waitress had closed the door fully, the door construction was deficient and still would have allowed in significant waves of smoke from outside.

Hoping they could obtain civil damages against the restaurant for failure to enforce the law to prevent smoking in public spaces, the couple requested approval to file a class-action suit against Espresso Bar.

The court rejected the request on several grounds.

It found that there was no right to sue an establishment like Espresso Bar in the class-action context when the true violators of the law had been the smokers themselves, and Espresso Bar at worst had failed to stop the violators.

The court said that prior case law requires signage and separate sections for smoking and nonsmoking such as Espresso Bar had.

While the law also permitted establishments to hire their own inspector to temporarily detain smoking violators until official city inspectors arrived on the scene, this was not required and the true enforcement obligation remained on city inspectors.

The court said that any other conclusion would be disproportionate and impractical to enforce.
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