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Smoking in Public Places: Compensation Claim Procedures

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Smoking in public spaces constitutes a nuisance and a health hazard – both for smokers and those around them. This nuisance is significantly exacerbated in enclosed spaces, especially when minors are present.

Israeli law defines a closed list of public places where smoking is prohibited or restricted, imposing sanctions on both venue owners and smokers.

Currently, the law lacks an explicit compensation mechanism for individuals harmed by public smoking. This may be due to the difficulty in establishing direct causality in cases of physical harm, and in assessing emotional distress.

Nevertheless, courts have repeatedly ruled that compensation can be awarded to individuals harmed by public smoking, provided certain conditions are met.

This article briefly outlines the legal basis for prohibiting smoking in public places; lists public places where smoking is prohibited or restricted; and explains how, despite legislative gaps, a small claims lawsuit can be filed for compensation.

The Law on Smoking in Public Places

In 1983, the Law for the Prevention of Smoking in Public Places and Exposure to Smoke, 1983, was enacted. Section 1A of the law aims to “prevent smoking in public places and exposure of the public to smoking, which causes death, illness, and disability.”

Since its enactment, the law has undergone several amendments, and numerous proposed amendments have been introduced, some of which were abandoned due to political instability.

The impetus for legislation on smoking stemmed from increased awareness of its harms and a rise in smoking-related deaths – both active and passive.

According to the 2022 Ministry of Health report, approximately 20% of the adult population in Israel smokes, resulting in roughly 8,000 smoking-related deaths annually. Of these, approximately 10% (800 cases per year) are attributed to passive smoking.

Parenthetically, a pertinent question arises: Why don’t countries ban smoking entirely? The answer is simple: smoking is highly profitable.

According to the Ministry of Health report, Israel’s revenue from tobacco taxes in 2022 amounted to approximately NIS 7.5 billion. Conversely, the total cost to the state due to smoking-related harm stands at NIS 3.6 billion; NIS 1.7 billion in direct healthcare costs and NIS 1.9 billion in indirect costs (productivity losses). Smoking, therefore, is decidedly lucrative for the state treasury.

The Smoking Law and its amendments strike a balance between individual liberty (and significant revenue generation for the state) and public health. This balance is reflected in the defined list of public places where smoking is entirely prohibited or restricted.

Penalties for Smoking in Public Places

Violations of the law carry fines ranging from NIS 14,400 to NIS 75,300 (as of January 2024). Furthermore, violations can lead to criminal proceedings in the Magistrate’s Court.

A notable deficiency in the Smoking Law is the absence of an explicit provision for compensation to individuals harmed by public smoking. However, various courts, including the Small Claims Court, have addressed this legislative gap by awarding compensation to claimants who have suffered harm – even emotional distress – from public smoking.

List of Public Places Where Smoking is Prohibited

The Smoking Law specifies a closed list of places where smoking is prohibited or restricted. It also mandates that the holder of a public place (owner, lessee, etc.) prominently display no-smoking signs.

Finally, placing ashtrays in these public places is prohibited. Many businesses attempt to circumvent this by providing plastic cups or other receptacles that are not strictly “ashtrays.”

However, the law’s definition is broader, encompassing any container intended for discarding tobacco waste. The following public places have smoking prohibitions:

Products purchased at the establishment.
  1. Furniture assembled at the consumer’s home;
  2. Goods manufactured specifically for the consumer according to special measurements or requirements;
  3. Goods that by law cannot be returned;
  4. Food products;
  5. Medicines and dietary supplements;
  6. Perishable goods – products that, from the moment they are supplied to the customer, cannot be reused or supplied to another, or products whose value will decrease (or spoil) by the time they are returned to the business;
  7. Information as defined in the Computers Law (“data, signs, concepts or instructions, except for software, expressed in computer-readable language, and stored in a computer or other storage medium, provided that the data, signs, concepts or instructions are not intended for use in a support computer only”);
  8. Goods that can be recorded, copied or duplicated, where the consumer has opened their original packaging (such as books);
  9. Underwear, including swimwear;
  10. Liquefied petroleum gas (cylinder or gas tank);
  11. Jewelry priced above 3,000 NIS, excluding watches;
  12. Hospitality, travel, leisure and entertainment services performed entirely outside of Israel;
  13. Where the consumer requested delivery of a product more than 6 months from the date of the transaction, the transaction cannot be cancelled after the products have been supplied.
  14. Transactions whose consideration was paid using gift certificates, gift vouchers or rechargeable magnetic cards.
  15. Unpackaged tableware.
I have completed preparing a small claims action. What is the next step?

How to File a Small Claims Case. We have compiled all you need to know about the process – Filing a Small Claims Case.

Educational and Higher Education Institutions

This amendment, effective September 2018, prohibits smoking in all educational institutions, including higher education institutions and post-secondary institutions with students over 18 (including courtyards and student residences), kindergartens, nurseries, and daycare centers (including courtyards). The smoking ban extends to the premises and an additional 10-meter radius from entrances and exits (excluding residential buildings within this radius). The 10-meter restriction does not apply to playgrounds.

In higher education institutions and post-secondary institutions with students over 18, the institution’s administration may designate a separate smoking room (excluding administrative or faculty offices), provided the room is adequately ventilated and does not cause a nuisance to other areas.

Street vending transaction (a transaction conducted outside of a fixed place of business).

A peddler’s transaction is one where the vendor offered goods or services without a prior order from the consumer. This occurs outside the vendor’s place of business or that of their representative. For example, if the vendor sets up a sales stand at a military base and the consumer makes a purchase, this is a peddler’s transaction, as the consumer did not initiate the contact and the transaction took place within their proximity.

The consumer may cancel the agreement according to the type of peddler’s transaction (goods or services):

Peddler’s Transaction for Sale of Goods: The right of cancellation exists from the date of the agreement until 14 days from the delivery of the goods or from the receipt of the transaction details, whichever is later.

Peddler’s Transaction for Sale of Services: The right of cancellation exists within 14 days from the date of the agreement or from the receipt of the transaction details, whichever is later. In an ongoing service contract, the right of cancellation exists regardless of whether the service has commenced. In a one-time service contract, the right of cancellation exists as long as the service has not commenced.

In the event of cancellation of a peddler’s transaction, the vendor shall return the full consideration paid by the consumer. If the transaction involves goods, the consumer shall return the goods to the vendor. If the transaction involves an ongoing service contract and the service has commenced, the consumer shall pay the pro-rata consideration for the service rendered and return any goods received for the provision of the service (if any).

Note: A vendor who installed goods in the consumer’s home to provide a service under the agreement may charge a fee for installation costs not exceeding 100 ₪. The vendor also retains the right to claim damages – if any – due to a decrease in the value of the goods that were the basis of the transaction. Furthermore, it should be noted that peddler’s transactions for perishable goods are not cancellable.

The hearing is imminent; proper conduct, attire, and demeanor are required.

First, take a deep breath. Having done so:

Arrive appropriately dressed (no shorts and flip-flops). Bring photo identification (for entry), a hard copy of the writ of summons and its exhibits, and arrive at least fifteen minutes before the scheduled hearing time; have coffee in the cafeteria, observe the courtroom, absorb the atmosphere, and alleviate tension.

From the moment you enter the courtroom (and ideally, as a way of life), conduct yourselves respectfully towards all present; from the defendant, through the court clerk, to the judge. The assumption that whoever shouts loudest is right does not hold true in court.

What documents must be appended to a small claims action?

All supporting documentation upon which the claimant intends to rely must be attached to the small claims lawsuit. For example, in a small claims action for breach of a lease agreement, it is appropriate to attach a copy of the signed agreement and any document substantiating the alleged breach (such as text messages, a dishonored check, a recording of a conversation, etc.).

His judgment is swift. Is he available?

He prefers to maintain privacy on this matter. However, attempts to contact him are always welcome.

A hearing has been scheduled at an inconvenient time. What procedures are available to seek a rescheduling?

To reschedule a hearing, any party must submit a written request specifying the reasons for the requested change and attaching any relevant documents.

For example, if a plaintiff/defendant has pre-planned international travel coinciding with the scheduled hearing, this must be stated in the written request, supported by an affidavit and accompanying documentation (e.g., flight tickets and booking confirmation in the applicant’s name).

Hawking transaction

Non-delivery in itinerant sales transactions – a transaction where the trader offered to perform the transaction without an order from the consumer, in any place that is not the trader’s business premises or those of his representative. It is not possible to cancel an itinerant sales transaction for the purchase of “perishable” goods. That is, products that, once supplied to the customer, cannot be reused or supplied to another, or products whose value will decrease (or will deteriorate) until they are returned to the trader.

May a claim that could qualify as a small claims action be filed as a standard civil action instead of a small claims action?

Yes, it is possible to file a small claims lawsuit in civil proceedings. Regarding the advantages and disadvantages of filing a small claims lawsuit versus a “regular” civil lawsuit, please see our article Filing a Small Claims Lawsuit – Everything You Need to Know.

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Compensation for Smoking in Public Places

The Smoking Law imposes financial penalties on owners and holders of public places where smoking is prohibited, but it does not provide an explicit compensation mechanism for individuals harmed by public smoking. However, Small Claims Courts have repeatedly awarded compensation to those affected.

A landmark ruling establishing the basis for small claims related to public smoking was issued in 2006. The plaintiff, Ms. Irit Shemesh, was dining with her family at a restaurant (while pregnant).

She claimed inadequate signage and separation, and that the smoking significantly disrupted her family’s meal. Despite requests to the restaurant, the smoking continued, leading to her filing a small claim.

The Small Claims Court accepted the claim but awarded a sum she considered low (the cost of the meal). She appealed to the Supreme Court, which upheld the appeal and awarded significantly higher compensation (ten times the original amount).

The Supreme Court acknowledged the lack of a specific legal provision for compensation for harm caused by public smoking, emphasizing the need to fill this legislative gap in appropriate cases. The court stated:

It seems to me that a codified obligation has been violated, and given that a family with children and a pregnant woman were involved, there is reason to give stronger expression – even if still symbolically – to the harm, for the sake of deterring others.

According to official publications, this ruling set a precedent for Small Claims Courts to accept compensation claims for public smoking.

Even if not for health damage from smoking, compensation can be awarded for non-pecuniary harm (emotional distress) resulting from a violation of the Smoking Law. Based on case law review, the following conditions must be met to receive compensation:

  1. The claimant approached the person in charge of the public place and requested that the violation be rectified and the nuisance removed (but the nuisance was not removed);
  2. The claimant supported their claims with real-time evidence (documentation of the place and smokers; data on its size; photographs showing the absence of signage; documentation of contact with the person in charge; and documentation of the financial or emotional impact of the smoking).

Filing a Small Claims Lawsuit for Compensation Due to Public Smoking

Filing a small claims lawsuit is remarkably simple. By law, this process proceeds without lawyers, and the presiding judge may adopt a highly lenient approach.

The law allows Small Claims Court judges to deviate from procedural rules or rules of evidence if deemed appropriate for a fair hearing. In practice, Small Claims Courts are indeed very lenient and tend to accommodate parties to resolve the matter substantively.

Dino’s system allows you to create a small claims lawsuit online, independently, in an average of 14 minutes, from any device. The small claims lawsuit is tailored to the instructions of the court administration, helping overcome technical and procedural barriers in drafting the lawsuit.

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