Diner that allowed smoking loses 'assault' case

Tel Aviv Judge orders restaurant to pay NIS 3,000 to man who sued over second-hand smoke.

Jlem smokers1 298 (photo credit: Ariel Jerozolimski)
Jlem smokers1 298
(photo credit: Ariel Jerozolimski)
A Tel Aviv restaurant owner who failed to enforce no-smoking laws at the request of a customer has been ordered to pay damages for an "assault" by smoking patrons on a nearby diner. So decided Tel Aviv Judge Shlomo Friedlander in a ruling on August 30 that was released on Monday. In the case, the judge also declared that employers should impose sanctions on employees who smoke on the premises in contravention of the law, and ultimately even dismiss them. Friedlander, a Tel Aviv Magistrate's Court judge, was lent for a day to the Small Claims Court. The plaintiff was Guy Ophir, a lawyer and activist for the Avir Naki voluntary organization (www.avir-naki.com), which fights for enforcement of no-smoking laws. He was assisted in preparing his case by Amos Hausner, the veteran anti-tobacco lawyer who is chairman of the Israel Council for the Prevention of Smoking. The Martha Restaurant, owned by the Rosetti Food Company, was the defendant in the case. During Ophir's meal at the restaurant, two other customers started to smoke near him. He asked the waitress to stop them, but she did nothing. There were also no signs, as required by the law, stating that smoking was illegal, and there were ashtrays around. When Ophir complained to the smokers, they moved to the bar and continued smoking. In addition, one of the restaurant employees was seen smoking on the job. The judge also based his decision on the legal requirement of proprietors to ensure that customers, employees and visitors are not harmed on their property. A previous case on which Friedlander based his ruling involved a man who was beaten by thugs in Jerusalem's Central Bus Station; the victim sued Egged, which owns the bus station. The Supreme Court said Egged was responsible for not ensuring protection of customers and required it to pay compensation. Friedlander said in his Small Claims Court ruling that an employer had a duty to ensure that employees who broke the law by smoking in prohibited areas should be sanctioned, and even dismissed if they persist. Friedlander ordered the restaurant to pay NIS 3,000, which was the maximum that Ophir requested, plus NIS 500 in court costs, justifying the relatively small sum by noting that the restaurant now adheres to the no-smoking ban. Otherwise, said the judge, the compensation would have been much higher, perhaps up to NIS 17,800, which is the maximum compensation in Small Claims Court. The judge said the compensation must be punitive, and emphasized that no-smoking laws should be enforced by proprietors of public places with determination. Ophir said he would donate the money to the anti-smoking cause. Hausner said the ruling set a precedent in that property owners could no longer claim they were powerless to enforce no-smoking laws on their premises; if they do not, they expose themselves to serious sanctions, he said. Assault, said Hausner, can be carried out not only by a physical attack but also with gas, an offensive smell or smoke. In November, MK Gilad Erdan's law that makes owners responsible for complaining to the municipality or local authority over smoking violations on public property will go into effect. The law also greatly increases fines on smokers and requires the local authority to appoint inspectors for enforcement of the law.