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Worker Denied Smoking Ban at Cal State

February 03, 1989|JOHN SPANO | Times Staff Writer

The right to a "safe and healthful" workplace under state law does not include a smoke-free environment, an appellate court in Santa Ana ruled Thursday.

The decision leaves David B. McCoy, a piano tuner at Cal State Fullerton and a passionate foe of smoking, assigned to work in a building with sealed windows and a ventilation system that he claims merely recirculates smoke-tainted air.

In a lawsuit against his employer, McCoy claimed unsuccessfully that he deserves the same protection from second-hand smoke he contends that the university affords to books, plants and computers.

In the suit, McCoy stated that his health was being ruined by constant exposure to smoke and that he had an allergy that left him wheezing, dizzy, suffering from headaches, nausea, fatigue and anxiety, all due to the university's inadequate effort to control the noxious fumes.

But in 1987, an Orange County Superior Court judge ruled that the school had complied with a 1982 state law that prohibits smoking at meetings in government-funded offices and requires supervisors to try to accommodate nonsmokers' needs.

School's Efforts Upheld

The state appellate court's unanimous decision Thursday upheld that ruling.

In its opinion, the 4th District Court of Appeal noted that the university bans smoking in classrooms, lecture halls, laboratories, theaters, gymnasiums, library reading areas, public assembly areas and common work areas. In fact, the opinion said, its policy is "far stricter" than the law requires.

The court found that the university has done much to restrict the adverse impact of second-hand smoke.

"The silence by the Legislature as to the details on how to achieve smoke-free work stations necessarily implies that each department or agency has the discretion to choose methods necessary to accommodate the legislative objectives in the context of the peculiarities of their individual work places," the opinion held.

Cal State Fullerton has restricted smoking on its campus since 1978 and has regularly reviewed its smoking policy, the court noted.

Despite the apparent setback, McCoy's lawyer, Stephen Berger of Newport Beach, said his client believes that things have improved as a result of the lawsuit.

'A Little Better'

"Things have gotten a little better," Berger said. "I think our lawsuit did cause them to start enforcing the smoking rules. They banned smoke in a couple of new places. We still have a problem, but it's better."

Berger had urged the appellate court to find that a smoke-free environment should be required under in a state law mandating that "every employer shall furnish employment and a place of employment which are safe and healthful to employees therein."

The court declined to do so but did offer some hope to those who oppose smoking.

"A review of the authorities indicates that in a proper case, the court looks favorably on the plight of a nonsmoker in today's society. This is not such a case," the opinion said.

Citing the experiences of a Turkish sultan, the court also rejected McCoy's claim that Cal State Fullerton's impressive smoking policy was not being enforced.

Among those who have tried and failed to stamp out smoking, the court said, were Murad IV, a 17th-Century Turkish monarch; King James I of England, and early colonists in Massachusetts.

McCoy filed several grievances over working conditions, but none was successful. He also helped organize a petition drive seeking a prohibition on smoking anywhere on campus. That also failed, despite a referendum in 1987 that showed 72% of the student body favored such a ban.

Wouldn't Snitch

McCoy claimed that, in response to his complaints, the administration provided him with an air cleaner and a respirator mask to wear at work. He also said that administrators encouraged him to turn in smokers who violated the rules but that, according to court documents, he refused to become a "spy, snitch or tattler."

McCoy works in the Performing Arts Building under the title of instrument technician. Berger said McCoy has had some success in pursuing a claim of partial disability as a result of workplace conditions.

McCoy could not be reached, and a university spokesman declined comment.

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