DOT and FAA DEFERRAL TO STATE AND LOCAL SMOKING ORDINANCES
In a Notice
of Proposed Rulemaking (NPRM), The Department of Transportation (DOT)
considered the petitions for an Accessible Path Through
Airports for Persons with Severe Respiratory Disabilities filed by Dr. Dwain Eckberg and Dr. Judith Plotkin.
See Nondiscrimination on the Basis of Handicap in Air Travel. NPRM, Federal Register / Vol. 61, No. 213 /
The DOT stated:
The petitioners make the point that some individuals have
respiratory conditions that can create significant problems for them if they
are exposed to tobacco smoke. If such an individual must, in order to get from
the entrance of an airport to an aircraft, pass through areas in which he or
she is exposed to smoke, he or she may suffer these health problems, require
oxygen that is not immediately available, or require emergency medical
treatment. Exposure to smoke, then, acts as a significant barrier for such
individuals to the use of the air travel system. (emphasis
added).
The Department would not intend, if it granted these
petitions, to propose to ban all smoking in terminals. Regulating smoking in
public places is traditionally a state or local matter, and the Department
would not attempt to preempt state or local decisionmaking.
(emphasis added).
Also, in a letter to Mr. David Fusco, dated
As indicated in our previous response, the Federal Aviation Administration does not regulate smoking in airport terminals.
Smoking in public buildings is subject to local and State law. We continue to believe that local government, not the FAA, has the appropriate regulatory authority on this matter.
The Supreme Court has held that:
The judiciary is the final authority on issues of statutory
construction and must reject administrative constructions which are contrary to
clear congressional intent. See Chevron, USA, Inc., v. Natural Resources Defense Council, Inc., 467
Now, let’s review federal court decisions that soundly reject the DOT’s deference to state and local smoking laws and ordinances.
In Hahn Ex. Rel. Barta
v.
The court finds that, because Linn County’s plan complies with Iowa Code § 331.439(1)(b) and (d), is not dispositive as whether a violation of the ADA [Americans with Disabilities Act], the RA [Rehabilitation Act] or ICRA [Iowa Code] has occurred.
Also, in American
Association of People with Disabilities v. Hood, 278 F.Supp.2d 1345 (M.D.Fla. 2003), the U.S. District Court for the Middle
District of
Thus, regardless of any legal duties imposed by
Furthermore, in Wood v.
Giving to § 12201(b) [42 U.S.C. § 12201(b)] the meaning
which the Court must in light of Congress’ unambiguously stated intent to
guarantee a certain level of access to the protections created by the ADA, it
becomes clear that it is immaterial whether the California statute provides
“greater or equal” protection than the ADA because Congress did not intend the
ADA to “defer” to any state statutes, regardless of the level of
additional protection which those statutes provide. (emphasis
in original).
More importantly, in Staron v. McDondald's Corp., 51 F.3d 353, 356-57 (1995), the U.S. Court of Appeals for the Second Circuit soundly rejected the argument that smoking should be exempted from the protections of the ADA holding that:
The magistrate judge echoed a sentiment similar to defendants’, stating that “[t]he significant public policy issues regarding smoking in ‘fast food’ restaurants are better addressed by Congress or by the Connecticut General Assembly …” Id. at 357.
It is plain to us that Congress did not intend to isolate
the effects of smoking from the protections of the
As to the second sentence of § 501(b), the Department of
Justice regulations state that it “merely clarifies that the Act does not
require public accommodations to accommodate smokers by permitting them to
smoke.” 28 C.F.R. Pt. 36, App.B, 56
Fed.Reg 35544, 35562. “Nothing in the second
sentence precludes public accommodations from accommodating those with
smoke-sensitive disabilities. In fact, this language expressly permits a total
ban on smoking if a court finds it appropriate under the
The actions of the DOT can best be described with a quote by Senator Alan Cranston:
A most unfortunate situation exists in which the Department of Transportation’s hands-off, local-option, self-certification, no-monitoring, and no-criteria position is transforming the anti-discrimination laws into meaningless symbols. See 128 Cong.Rec.32,634, 32,643 (1982).
The statutes and regulations cited above can be accessed at http://www.law.cornell.edu
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