Death by “Right to Private Action”, by Carol Denney

When push came to shove in protecting low-income people in apartment buildings from secondhand smoke, Berkeley teamed up with Big Tobacco and made sure that a resident’s only recourse if things go wrong is "the right to private action", in other words, a civil suit. And sure, you can sue your landlord and/or neighbors. But it won't give you healthy, breathable air.

Other cities, such as Pasadena, California, recognize that smoke is a toxic, physical element, easily documented with a Q-tip and a test of the residue on surfaces, and is put in the housing code inspectors' arena like a broken heater or electrical outlet. But Berkeley really insisted on a "no help here" sign.

There is no agency, no commission or committee, no department to help except to document a pointless complaint. You can file a complaint, of course. And if somebody else in your building happens to file a complaint simultaneously the responsible smoker may be fined, the most counterproductive of responses. But fines, paid or unpaid, rarely resolve the issue. And the more likely result is retaliation.

I had my original car destroyed. I had my neck broken and several concussions after more than a dozen assaults- with no arrests. I continue to have my windshields repeatedly smashed, the tires slashed, and registration scraped off while my current vehicle sits in our allegedly secure garage. The replacement car for the one determined to be a total loss by my insurance company was riddled with bullet holes only months ago. Recently one of the smokers threw rocks and eggs at my head in the dark while screaming profanities at me into the night for all the neighbors to hear.

I spend as much time as possible as far away from my apartment as I can get despite being one of the founders of our housing nonprofit, a public benefit corporation dedicated to safe, affordable, permanent, tenant-controlled housing. Our disinterested building management, despite a cancer and tobacco-related disease cluster which would make any self-respecting health worker gasp, has no incentive to address the matter. Nor does the city, which nonetheless sends city inspectors out once a year who are frightened if you even suggest that they make a note of the omnipresent secondhand tobacco and marijuana smoke.

Do not think for a minute that this ongoing nightmare, this horror apparently celebrated by a majority of the Rent Stabilization Board for side-stepping already ludicrously limited liability, is considered a problem by the current Berkeley City Council. They are, as they will be proud to say, well aware. They are proud to point to the Multi-Unit Housing smoking protections on paper and note that it is "progressive" in theory. And if you listen closely you will hear the rustle of shaking heads when the indices of income-based health disparities in Berkeley is momentarily noted every few years, with muted overtones of almost genuine concern.

By Carol Denney 1970 San Pablo Ave #4 Berkeley, CA 94702, 510-548-1512 # # #