Judge Rejects Plea to Tighten Smoking Rules at Cal State

Turning down the plea of a university employee who claims his health is at stake, a judge refused Wednesday to order Cal State Fullerton officials to strengthen anti-smoking rules on campus.

David B. McCoy’s request was denied in a short written order after a hearing before Orange County Superior Court Judge Gary L. Taylor.

“The university welcomes the prompt decision in the matter and will continue to monitor pollutants in all buildings in order to ensure the safety of students, faculty, staff and public,” said Jerry Keating, director of public affairs for the school.

Ban on Most of Campus

Keating said smoking already has been banned on 90% of the campus.

McCoy could not be reached for comment, but his lawyer, Stephen W. Berger, said he is considering an appeal.

“Apparently, he just did not feel there was an abuse of discretion,” Berger said of the judge’s decision. “The university, unfortunately, has a great deal of leeway in these matters. Judge Taylor apparently feels it’s something the courts shouldn’t intervene in.”

McCoy has been trying for years to win stronger restrictions on smoking at Cal State Fullerton.

University officials twice have denied his grievances over a smoky workplace. They gave him an air filter, suggested he work only nights and once issued him a face mask to wear in the office.

At the hearing Wednesday, McCoy’s lawyer denounced what he called the arrogance of the administration and urged the judge to cut through a maze of law and regulations and protect his client’s rights.

McCoy, 44, an instrument technician who works in the performing arts building at the university, suffers from asthma and other allergies that make him especially susceptible to the hazards of secondary smoke.

State law, university regulations and executive orders require the university administration to work toward a smoke-free working environment for its employees. Berger urged the judge to conclude that the university has not done enough.

The university generally restricts smoking to hallways and private offices, and violators receive warnings. Berger said an outright ban has been decreed in the library, the greenhouse and the campus computer center.

Not on ‘Same Pedestal’

Taylor asked Berger whether he disagreed that actions taken so far show that the administration “is working hard to provide a smoke-free environment.”

“It shows they’re not placing employees on the same pedestal of safety they would for plants, computers and books,” Berger responded.

The school is working toward a smoke-free environment, according to John Crimmins, the deputy state attorney general representing the administration.

“An isolated violation or two doesn’t mean the policy is not being enforced,” Crimmins said.

More than 25,000 students are enrolled at Cal State Fullerton, Crimmins said.

“With a campus of that size,” he said, “somewhere, somebody is smoking.”

The university has had some smoking restrictions since 1978 and has continually reviewed policy and enforcement, Crimmins said.

A special committee recommended strengthening anti-smoking regulations last December, but the administration ignored the suggestion, Berger contended.

“(The administration) never addressed the real problem: None of the solutions work,” Berger said. “When are you going to do something that works?”

Questions Own Power

Taylor questioned his power to order an outright ban on smoking, something he said state law does not require. Reasonable efforts to restrict smoking are what the law demands, Taylor said.

“They’re not saying, ‘We’re doing the best we can,’ ” Taylor said of the university administration. “They’re saying more than that. They’re saying, ‘What we are doing is within accepted standards.’ ”

According to Keating, smoking is banned in “places such as classrooms and offices, where a person is a captive.” Elsewhere, principally corridors and balconies--”where one need not remain,” Keating said--smoking is allowed.