Marrena Miserendino, a smoker for more than 30 years, doesn't believe smokers should light up in their cars with kids inside.
"No one with common sense should smoke in a car with children," she said.
But the Buffalo resident doesn’t believe there should be a law against it, calling it "a slippery slope."
Such a law, however, just might happen under a proposal in the Erie County Legislature that would ban smokers from lighting up in a car occupied by anyone under 16.
It's the first local effort at restricting smoking on or inside smokers' private property. The measure includes e-cigarettes.
Laws that regulate vehicles and discriminate against smokers are common and well established, say public health advocates and law experts.
Many health experts — and even some smokers — support the idea of restricting secondhand smoke exposure for children who often have no choice but to ride in whatever vehicle they are sharing with adult smokers.
Seven other states and dozens of cities and counties across the country have laws against smoking in cars with children.
Erie County Legislator Patrick B. Burke, who proposed the local law, said he's optimistic the measure will pass and become law within the next couple of months.
"Most people already think it's illegal," he said.
But that doesn't mean everybody thinks the idea is a good one.
Smoker Jose Crespo, a senior at SUNY Buffalo State, said he's not entirely opposed to the law, but wonders how it would be enforced.
"Are they going to have the smoking police?" he said.
Laws restricting the ability for smokers to light up in their vehicles have become more common in the last five years.
"This is certainly something that is legally permissible," said William Tilburg, managing director of the Legal Resource Center at the University of Maryland Carey School of Law, which focuses on public health issues.
Drivers and passengers in vehicles are already subject to public safety regulations, such as seat belt laws.
So the Erie County proposal to ban smoking in cars is no heavy lift, he said.
Rockland County and the City of Schenectady have already passed such laws.
"This is established law," said Burke, D-Buffalo. "Why wouldn't we have this in place when it's established in so many other places?"
The new proposal is just the latest of local, state and federal efforts to restrict smoking.
New York's Clean Indoor Air Act, for example, has banned smoking in most workplaces, including restaurants and bars for the past 15 years. And more than 50 municipalities in Erie and Niagara counties prohibit smoking in public parks, according to Tobacco-Free Western New York.
At the national level, the Department of Housing and Urban Development is in the midst of implementing policy to make all public housing smoke-free by this July — a rule that would affect roughly two million residents.
Effects of car smoke
So how dangerous is cigarette smoke in a car? Just one cigarette exposes passengers to more air pollutants than those breathing the air near those wild fires raging in California, said Mark Travers, a research scientist at Roswell Park Comprehensive Cancer Center.
In fact, smoking one cigarette in a car can expose passengers to air pollutants that are 10 times the level found in bars, back when smoking was still permitted in them, said Travers, whose research paper on this topic was published in 2009.
"The levels exceeded what our equipment could measure," he said.
He equated smoking in a car to smoking in a tiny closet.
Even with a window rolled halfway down, air pollutants breathed in by passengers still approach hazardous levels as measured by the Environmental Protection Agency, he said. And few would roll down windows in single-digit temperatures, he added.
Secondhand smoke has a negative effect on everyone who breathes it, but children are disproportionately harmed.
"Children breathe more rapidly," he said. "They absorb more pollutants, have less developed immune systems and are more vulnerable to cellular mutations, making them more susceptible to the health effects of tobacco smoke pollution."
Asthma, ear infections, chronic lung disease, Sudden Infant Death Syndrome and cancer are among the conditions children suffer due to secondhand smoke exposure. Travers also cited harm caused by "thirdhand smoke" — exposure to air pollutants that settle into fabrics and other surfaces and can be re-released into the air even when no one is smoking.
Impact and enforceability
Critics of the law point to a lack of respect for privacy and personal property rights.
In other places, such laws have attracted opposition from conservatives, who see the law as an affront to personal liberties, and liberals, who see the law as an easy way to profile and target poor and minority populations since they comprise a greater percentage of smokers, said Tilburg.
Supporters, however, point to children as a particularly vulnerable group in need of strong legal protections. They contend children have limited to no ability to remove themselves as passengers from a car driven by adults.
"Where do we draw the line on whose rights?" asked Anthony Billoni, director of Tobacco-Free Western New York. "Who's protecting those kids?"
In regard to enforceability, little research or data exist regarding how effective police are at enforcing such laws.
"There was some concern about the difficulty of enforcing it," said Schenectady Councilman John Polimeni, who sponsored a similar bill adopted in his city in December 2016.
Buffalo Police Commissioner Daniel Derenda said his officers would enforce the proposal if it became law.
"When it comes up, we'll take a look at it," he said. "But we enforce whatever laws are on the books."
Some communities have tried to make the laws more enforceable by limiting the law to children of car-seat age, or making the smoking violation a secondary offense, meaning an officer would need another reason to pull over the vehicle, Tilburg said.
Erie County's proposed law sets the age cutoff at 16 and makes smoking in a car with children a primary offense.
But those promoting the law here and elsewhere say a police crackdown on smokers is not the primary purpose of the legislation. It's meant to serve as a deterrent, raise awareness and create clear community standards regarding public health.
"We didn't really do it so much to penalize people or generate revenue," said Polimeni. "It was about getting people to stop. It was trying to get people to stop hurting young people's lungs."
Billoni said the law would make it easier for other members of the community to raise the issue with offenders, knowing they have the backing of the community when they ask smokers to stop smoking with children in their cars.
Though these laws are too new to determine whether they have much impact on the smoking community, Tilburg pointed to the massive public awareness campaign launched decades ago to get drivers and passengers to fasten their seat belts. Noncompliance remained high until laws were passed to make seat belt use mandatory, he said.
Local law timeline
Burke submitted his proposed local law in the fall, he said. But it is only now with Democrats having retaken the majority in the Erie County Legislature that the proposal is gaining traction.
The Erie County law would make it a crime to smoke a cigarette, cigar or e-cigarette in a parked or moving vehicle with a child under the age of 16. The law includes a three-month probationary period, in which offenders would receive a warning instead of fines.
After the probationary period, violators would be fined $50 for an initial infraction and up to $150 for repeat infractions.
Burke said he expects to hold a committee meeting on the proposed law in two weeks. After a public hearing, the Legislature would vote on the measure and then County Executive Mark C. Poloncarz would decide whether to sign it into law or veto it.
Smokers weigh in
Smokers comprise less than 16 percent of the population in New York State. Many of those interviewed Tuesday said they understand the need to restrict people from smoking in cars with children present.
Jessica Cruz, who has 17- and 7-year-old daughters, is familiar with similar laws banning smoking in vehicles with children inside because she lived under a similar law in Puerto Rico.
Cruz, who has been in Buffalo for about a month after losing her home to Hurricane Maria, said she thinks the law is a good one and believes children should be protected from the harmful effects of secondhand smoke. In Puerto Rico, she said, a person ticketed for violating the law may also be reported to social services.
Renee Davis of Buffalo, a smoker who has chronic obstructive pulmonary disease and who has been trying to quit smoking for about 10 years, said she recognizes the need for laws like this.
She makes her son open the window when he's riding in a vehicle with her and put out his cigarette when in a car with her grandchild. She said she also smokes outside her house because of her grandchild.
Smoker Danielle DeSantis of Buffalo also said she supports enacting the proposed law.
"You shouldn't smoke around kids anyway," DeSantis said.
Staff reporter Lou Michel contributed to this story.