SMOKING BANS AS A MATTER OF LAW

SMOKING BANS AS A MATTER OF LAW

Federal agencies, including the Department of Justice (DOJ) are misconstruing the Americans with Disabilities Act (ADA) as not requiring smoking bans as a matter of law. This is not based on the federal statute, or the federal regulations, or the DOJ interpretation of its regulations, or the legislative history of the ADA, or an interpretation of the ADA by the judiciary. It is based on a DOJ Technical Assistance Manual (TAM) and an Administrative Opinion Letter.

Congressional intent

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court held that:

When a court reviews an agency’s construction of the statute it administers, it is confronted with two questions. First, always, is the question whether Congress has spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Id. at 842-43

In Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195 (4th Cir. 1990), the U.S. Court of Appeals for the Fourth Circuit held that:

Congressional intent is to be deduced from the statute’s text or legislative history. Id. at 197.

The Supreme Court affirmed the Fourth Circuit decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The Supreme Court held that:

If Congress intended the substantive protection afforded [by the ADEA] to include protection against waiver of the right to a judicial forum, that intention will be deductible from text or legislative history. Id. at 29.

Also, in Irwin v. Department of Veterans Affairs, 498 U.S 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that;

A waiver of sovereign immunity cannot be implied but must be unequivocally expressed. Id. at 95.

Furthermore, in U.S. v. Cherokee Nation of Oklahoma, 489 U.S. 800, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987), the Supreme Court held that:

A waiver of sovereign authority will not be implied, but instead must be surrendered in unmistakable terms. Id. at 707.

Moreover, in U.S. v. Nordic Village, Inc., 503 U.S. 30, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), the Supreme Court held that:

The unequivocal expression of elimination of sovereign immunity that we insist upon is an expression in statutory text. If it does not exist there, it cannot be supplied by a committee report. Id. at 37.

Congress expressed its intent when it enacted the federal statutes applicable to the ADA, and two statutes are applicable in determining if congress intended to exempt smoking bans as a matter of law under Title II of the ADA. The statutes are 42 U.S.C. § 12132 and 42 U.S.C. § 12201(b).

42 U.S.C. § 12132

42 U.S.C. § 12132 states:

Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Obviously, congress did not exempt the breathing disabled or smoking or smoking policies from the requirements of 42 U.S.C. § 12132.

The DOJ interpreted 42 U.S.C. § 12132 in an amicus curiae brief that the United States submitted in Lakes Region Consumer Advisory Board (Cornerbridge) v. City of Laconia, New Hampshire, Case No. 93-338-M. This brief is available at: http://ada.gov/briefs/laconia1/br.doc . Citing 42 U.S. § 12132 in its amicus brief, the DOJ states:

There is no suggestion in the statute that zoning or any other type of public action is to be excluded from this broad mandate. … Moreover, the last phrase of Title II’s nondiscrimination command is even more expansive, stating simply that no individual with a disability may be “subjected to discrimination” by a public entity. This language prohibits a public entity from discriminating on the basis of disability in any manner, whether through zoning or any other official activity. Id. at 5.

Indeed, to allow discrimination on the basis of disability in any area of government functioning denies persons with disabilities equal opportunity to benefit from those government functions, in direct contravention to the ADA’s stated goals. Id. at 6.

Title II’s legislative history leaves no doubt that Congress intended Title II to cover every action taken in every forum in which a public entity may function. Id. at 6.

However, the DOJ and other federal agencies have decided that the breathing disabled and other individuals with disabilities caused or exacerbated by second hand tobacco smoke can be denied the benefits of a public entity’s services, programs, or activities and otherwise be discriminated against if smoking or smoking policies are involved.

42 U.S.C. § 12201(b)

42 U.S.C. § 12201(b) is the federal statute that addresses smoking under the ADA, and it states:

Nothing in this Act shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by title I, in transportation covered by title II or III, or in places of public accommodation covered by title III. (citations omitted).

42 U.S.C. § 12201(b) clearly expresses congressional intent that nothing in the ADA shall be construed to preclude the prohibition of, or restrictions on smoking under the ADA.

However, the DOJ and other federal agencies misconstrue a technical assistance manual based on 42 U.S.C. § 12201(b) to justify exempting smoking and smoking policies from coverage under the ADA, thereby, promoting discrimination against the breathing disabled on the basis of disability.

42 U.S.C. § 12182(b)(2)(A)(ii)

Citing 42 U.S.C. § 12182(b)(2)(A)(ii), the Supreme Court held that:

Title III of the Act requires without exception that any “policies, practices, or procedures” of a public accommodation be reasonably modified for disabled “individuals” as necessary to afford access unless doing so would fundamentally alter what is offered. To comply with this command, an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration. (emphasis added). See PGA Tour, Inc. v. Martin, 532 U.S. 661, 688, 121 S.Ct. 1879, 1896, 149 L.Ed.2d 904 (2001).

Also, in PGA Tour, Inc. v. Martin, the Supreme Court held that:

Nowhere in § 12182(b)(2)(A)(ii) does Congress limit the reasonable modification requirement only to requests that are easy to evaluate. Id. at 689, n.53.

Although the Supreme Court has specifically held that Title III of the ADA requires without exception that policies, practices, or procedures be reasonably modified as necessary to afford access to the disabled unless it would be a fundamental alteration to do so, the DOJ has created an exception for smoking policies and smoking bans.

Compartmentalized public accommodations

In Martin v. P.G.A. Tour, Inc., 204 F.3d 944 (9th Cir. 2000), the U.S. Court of Appeals for the Ninth Circuit held that:

The district court held that a public accommodation could not be compartmentalized in the fashion PGA desires. At least in the present context, we agree. (emphasis added). Id. at 997.

Therefore, a public accommodation cannot be just made smokefree in some areas within the public accommodation.

Roaming about a statute

In Bower v. Federal Express Corp., 96 F.3d 200 (6th Cir. 1996), the U.S. Court of Appeals for the Sixth Circuit held that the Department of Transportation (DOT) could not roam around the Air Carrier Access Act (ACAA) looking for other provisions to narrow or expand the ACAA through the process of definition. The Court stated:

Under Chevron’s first step, the agency has no discretion to define the term “air carrier” in any fashion inconsistent with the ACAA itself. Id. at 208.

Ambiguity anywhere in a statute is not a license to the administrative agency that interprets the statute to roam about that statute looking for other provisions to narrow or expand through the process of definition. The delegated authority to interpret an ambiguous term extends only to the specific subject matter covered by the ambiguous term. Statutory terms with plain meanings determine their own scope of operation, which cannot be diminished by ambiguities elsewhere in the same statute. (emphasis added). Id. at 208.

There is no ambiguity anywhere in 42 U.S.C. § 12132, or 42 U.S.C. § 12201(b), or 42 U.S.C. § 12182(b)(2)(A)(ii), whereby these statutes can be interpreted as excluding smoking policies and smoking bans from the requirements of 42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(7), and 42 U.S.C. § 12182(b)(2)(A)(ii).

In fact, the DOJ cannot find anything in the statutes, its own regulations, or its own interpretation of its regulations, upon which to base its policy of excluding the breathing disabled from the protections of the ADA.

In order to promote discrimination against the breathing disabled, the DOJ has to resort to misconstruing its own Technical Assistance Manuals for Title II and Title III of the ADA.

28 C.F.R. § 35.132

28 C.F.R. § 35.132 is the ADA Title II implementing regulation that is based on 42 U.S.C. § 12201(b) and it states:

This part does not preclude the prohibition of, or the imposition of restrictions on, smoking in transportation covered by this part.

Obviously, 28 C.F.R. § 35.132 does not state or even imply that smoking and smoking bans are exempt under the ADA as a matter of law.

However, the DOJ and other federal agencies justify discrimination against the breathing disabled and other individuals with disabilities caused or exacerbated by second hand tobacco smoke by public entities in services, programs, and activities based on the interpretation of 28 C.F.R. § 35.132 in the DOJ Technical Assistance Manual.

28 C.F.R. Pt. 35, Appendix A, § 35.132

The DOJ interpreted 28 C.F.R. § 35.132 in its 28 C.F.R. Pt. 35, Appendix A, which states:

Section 35.132 restates the clarification in section 501(b) of the Act that the Act does not preclude the prohibition of, or imposition of restrictions on, smoking in transportation covered by title II. … The reference to smoking in section 501, however, merely clarifies that the Act does not require public entities to accommodate smokers by permitting them to smoke in transportation facilities. See 28 C.F.R. Pt. 35, App. A, § 35.132, page 561 (7-1-07 Edition). See also 28 C.F.R. Pt. 36, App. B, § 36.210, page 708 (7-1-07 Edition).

As stated above, according to the DOJ, 28 C.F.R. § 35.132 merely clarifies that the ADA does not require public entities to accommodate smokers by permitting them to smoke in transportation facilities. The DOJ doesn’t even interpret its own regulation, 28 C.F.R. § 35.132, as not requiring smoking bans as a matter of law in the appendix to its regulations. However, the DOJ uses its Technical Assistance Manual based on 28 C.F.R. § 35.132 to justify discrimination against the breathing disabled and other individuals with disabilities caused or exacerbated by second hand tobacco smoke.

28 C.F.R. Pt. 35, Appendix A, § 35.104, Definitions

The DOJ defined the effects of cigarette smoke as a cause of disability in its 28 C.F.R. Pt. 35, Appendix A, which states:

Many commenters asked that environmental illness (also known as multiple chemical sensitivity) as well as allergy to cigarette smoke be recognized as disabilities. The Department, however, declines to state categorically that these types of allergies or sensitivities are disabilities, because the determination as to whether an impairment is a disability depends on whether, given the particular circumstances at issue, the impairment substantially limits one or more major life activities (or has a history of, or is regarded as having such an effect). (emphasis added) See 28 C.F.R. Pt. 35, App. A, § 35.104, page 551 (7-1-07 Edition).

Sometimes respiratory or neurological functioning is so severely affected that an individual will satisfy the requirements to be considered disabled under the regulation. Such an individual would be entitled to all of the protections afforded by the Act and this part. (emphasis added). Id. at 551.

In sum, the determination as to whether allergies to cigarette smoke, or allergies or sensitivities characterized by the commenters as environmental illness are disabilities covered by the regulation must be made using the same case-by-case analysis that is applied to all other physical or mental impairments. (emphasis added). Id. at 551.

The DOJ interpretation of its own regulations clearly states that an individual that is determined to be disabled as a result of allergy to cigarette smoke is entitled to all the protections of the Act and the implementing regulations.

However, the DOJ exempts smoking and smoking bans from the implementing regulations that are applicable to policies, practices, and procedures.

ADA Title II Technical Assistance Manual

The ADA Title II Technical Assistance Manual, II-3.12000, Smoking, states:

A public entity may prohibit smoking, or may impose restrictions on smoking.

The word “may,” which appears for the first time in the technical assistance manual, is now being cited by the DOJ and other federal agencies as not requiring smoking bans as a matter of law under Title II of the ADA.

Black’s Law Dictionary defines “may” as: “Is permitted to.”

The American Heritage Dictionary defines “may” as: “To be allowed to.”

In a case involving smoking, the Supreme Court cited Black’s Law Dictionary and The American Heritage Dictionary in defining “accident.” See Olympic Airways v. Husain, 540 U.S. 644, 651 n.6, 124 S.Ct. 1221, 1226, n.6 (2004).

The DOJ and other federal agencies use the word “may” which does not appear in the federal statutes for the ADA, or the federal regulations for the ADA, or the DOJ’s interpretation of its own regulations, to exempt smoking and smoking policies from the federal statutes and the federal regulations that have the force of law.

Moreover, the DOJ and the other federal agencies are not following the definition of “may” as it appears in the dictionaries used by the Supreme Court.

If smoking may be banned under the ADA, it follows that smoking bans are required by law when necessary to avoid discrimination against the breathing disabled.

Judicial interpretation of 42 U.S.C. § 12201(b)

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court 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. Id. at 843 n.9.

And, the judiciary interpreted 42 U.S.C. § 12201(b) in Staron v. McDonald’s Corp., 51 F.3d 353 (2nd Cir. 1995).

The DOJ and the other federal agencies are misconstruing 42 U.S.C. § 12201(b) in the same manner as the defendants did in Staron v. McDonald’s Corp., and the court soundly rejected the defendants’ interpretation stating:

The magistrate judge correctly noted that the ADA on its face does not ban smoking in all public accommodations or all fast food restaurants. Defendants carry this a significant step further, however, and argue that the ADA precludes a total smoking ban as a reasonable modification. They assert that Congress did not intend to restrict the range of legislative policy options open to state and local governments to deal with the issue of smoking. Their argument rests on § 501(b) of the ADA [42 U.S.C. § 12201(b)]: (emphasis added). Id. 356.

… Nothing in this chapter shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking … in places of public accommodation covered by subchapter III of this chapter. 42 U.S.C. § 12201(b). Id. at 357.

It is plain to us that Congress did not intend to isolate the effects of smoking from the protections of the ADA. The first sentence of § 501(b) simply indicates that Congress, states, and municipalities remain free to offer greater protection for disabled individuals than the ADA provides. The passage does not state, and it does not follow, that violations of the ADA should go unredressed merely because a state has chosen to provide some degree of protection to those with disabilities. (emphasis added). Id. at 357.

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 ADA. We therefore reject any argument by defendants to the contrary. (emphasis added). Id. at 357.

Furthermore, citing 42 U.S.C. § 12182(b)(2)(A)(ii), the U.S. District Court for the Northern District of Texas held that smoking policies are subject to the fundamental alteration test for policies, practices, and procedures under Title III of the ADA. See Emery v. Caravan of Dreams, 879 F.Supp. 640, 644 (1995), affirmed 85 F.3d 622 (5th Cir. 1996). Furthermore, the district court held that modification of a smoking policy is not required if it would affect the viability of a business. Id. at 644.

Moreover, the interpretation that smoking bans are not required under the ADA as a matter of law is contrary to the Supreme Court decision in School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987).

In Arline, the Supreme Court held that:

Congress’ desire to prohibit discrimination based on the effects a person’s handicap may have on others was evident from the inception of the [Rehabilitation] Act. Id. at 282, n.9.

Therefore, the DOJ and other federal agencies cannot interpret the ADA as prohibiting smoking bans as a matter of law without violating the judicial interpretations in Bower v. Federal Express Corp., Staron v. McDonald’s Corp., Emery v. Caravan of Dreams, and School Board of Nassau County, Florida v. Arline.

28 C.F.R. § 35.105(a)

Citing 28 C.F.R. § 35.105(a), the U.S. District Court for the District of Kansas held that:

A public entity that simply adopts a policy of responding to individual complaints alleging violations of Title II has not gone far enough to affirmatively identify access problems with its services, practices, and procedures, and proceed on its own to correct them as required by the key language of 28 C.F.R. § 35.105(a). See Tyler v. City of Manhattan, 857 F.Supp. 800, 815 (D.Kan. 1994).

However, the DOJ promotes discrimination by public entities by failing to enforce the requirements that public entities identify access problems for the breathing disabled and correct them.

Instead, the DOJ has adopted a policy of leaving enforcement of the ADA to the breathing disabled while, at the same time, providing “technical assistance” deliberately designed to promote discrimination against them.

28 C.F.R. § 35.130

28 C.F.R. § 35.130(b)(7)

Also, in its amicus brief, in Lakes Region Consumer Advisory Board (Cornerbridge) v. City of Laconia, New Hampshire, the DOJ interprets 28 C.F.R. § 35.130 and 28 C.F.R. § 35.130(b)(7). The DOJ states:

The Department of Justice, in its Title II implementing regulation and other Title II analyses, has interpreted Title II to reach all actions by public entities, … (citations omitted). Id. at 7.

The Department of Justice’s Title II implementing regulation (the Regulation) repeats the statute’s general nondiscrimination provision, that “no qualified individual with a disability . . . be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.” 28 C.F.R. § 35.130. The regulation’s preamble explains that “all governmental activities of public entities are covered, even if they are carried out by contractors. (citations omitted). Id. at 8.

The Regulation enumerates several categories of specific prohibitions of activities that constitute discrimination by public entities. 28 C.F.R. § 35.130. One of these specific prohibitions requires public entities to make reasonable modifications to their policies, practices, and procedures, where such modifications are necessary to avoid discrimination on the basis of disability. Commensurate with the Act, this provision uses broad language to cover the widest range of actions by public entities. 28 C.F.R. § 35.130(b)(7). (citations omitted) (emphasis added). Id. at 8-9.

Title II makes no distinctions based on the portion of the public served by a program, service, or activity. (emphasis added). Id. at 10.

Evidently, the DOJ does not interpret the widest range of actions by public entities to cover smoking policies or smoking bans when enforcing the ADA or providing technical assistance under the ADA.

Failure to comply with regulations

The U.S. District Court for the Southern District of Florida has held that:

The failure to comply with promulgated regulations, which must go through a considerable vetting process before they take effect, may be viewed as intentional discrimination. See Association For Disabled Americans, Inc. v. Concorde Gaming Corp. 158 F.Supp.2d 1353, 1362, n.5 (2001).

However, the DOJ exempts public entities and public accommodations from compliance with the Title II and Title III implementing regulations fundamental alteration test applicable to policies, practices, and procedures.

Technical Assistance Manuals and Agency Opinion Letters

In Ansonia Board of Education v. Philbrook, 479 U.S. 60, 69 n.6, 107 S.Ct. 367, 372, 93 L.Ed.2d 305 (1986), the Supreme Court held that an agency guideline must be consistent with the statute.

In Sampson v. Apollo Resources Inc., 242 F.3d 629, 638 (2001), the U.S. Court of Appeals for the Fifth Circuit held that: “Interpretive and opinion letters by the Department of Labor do not per se bind the court.”

Furthermore, under the ADA, the U.S. Court of Appeals for the Fourth Circuit held that the EEOC Compliance Manual is not binding on the court. See Rohan v. Networks Presentations LLC, 375 F.3d 266, 274 n.12 (2004). Moreover, in Schmidt v. Safeway Inc., 864 F.Supp. 991 (1994), the U.S. District Court for the District of Oregon reviewed the EEOC ADA Title I Technical Assistance Manual (TAM).

The district court held that:

To the extent there is any inconsistency between the TAM and the ADA, it must be resolved in favor of the ADA. The TAM is not law, nor does it have the force of law. Rather the TAM is an attempt to simplify and summarize the applicable law. Id. at 1001.

Therefore, the DOJ ADA Title II Technical Assistance Manual and any Technical Assistance Opinion Letters relied on the federal agencies must be consistent with the federal statute and the implementing regulations that have the force of law.

Moreover, the DOJ Technical Assistance Manual and any Technical Assistance Opinion Letters must be consistent with the judicial interpretations of the ADA.

In conclusion

The DOJ cannot provide “technical assistance” that is designed to cause, or has the effect of causing, public entities and public accommodations to believe that smoking bans are not required under the ADA as a matter of law. In providing technical assistance with regard to smoking, the DOJ must provide information that smoking and smoking bans are subject to the requirements of 28 C.F.R. § 35.130(b)(7) and 42 U.S.C. § 12182(b)(2)(A)(ii).

Moreover, in order to compensate for its years of promoting discrimination against the breathing disabled, the DOJ must initiate enforcement actions against those public entities who have failed to modify their smoking policies to avoid discrimination on the basis of disability.

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu/ .

Additional information is available at http://www.ada.gov/

and also from the Northeastern University School of Law at:

http://tobacco.neu.edu/tobacco_control/resources/ETS/adainfo1.htm .

DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. Users of this information do so at their own risk.

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