SMOKING BANS ARE NOT EXEMPT FROM THE ADA

SMOKING BANS ARE NOT EXEMPT FROM THE ADA

The Federal Aviation Administration (FAA) and the Department of Transportation (DOT) are interpreting a regulation under Title II of the Americans with Disabilities Act (ADA) as precluding smoking bans under the ADA. The regulations for Title II of the ADA are 28 C.F.R. Part 35 and the specific regulation that is being misconstrued is 28 C.F.R. § 35.132.

28 C.F.R. § 35.132, states:

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

Citing 28 C.F.R. § 35.132, in a letter to Billy J. Williams, dated September 29, 2006, Mr. Michael Freilich, External Program Manager, FAA Office of Civil Rights, stated:

Federal regulations do not require airports to ban all smoking throughout terminal facilities nor do they require that smoking in transportation facilities is required. Completely restricting and banning smoking in airport terminals is not a requirement under Federal regulations.

However, 42 U.S.C. § 12134(a) is the federal statute that authorized the Attorney General of the United States to promulgate the regulations for the Department of Justice (DOJ) 28 C.F.R. Pt. 35 regulations for Title II of the ADA.

The Supreme Court reviewed the DOJ interpretation of its Title II regulations in Olmstead v. L.C. by Zimring, 527 U.S. 581, 119 S.Ct.2176, 144 L.Ed.2d 540 (1999), and the Court held that:

Because the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect. “[i]t is enough to observe that the well-reasoned views of the agency implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” (citation omitted). Id. at 597-98.

Also, the Supreme Court has held that:

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. See Chevron, USA, Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

Therefore, it is the DOJ interpretation of 28 C.F.R. § 35.132 that governs and the DOJ interpreted § 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. Some commenters argued that this section is too limited in scope, and that the regulation should prohibit smoking in all facilities used by public entities. 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 554 (7-1-06 Edition). See also 28 C.F.R. Pt. 36, App. B, § 36.210, page 701 (7-1-06 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. Nor does the DOJ interpretation of § 35.132 preclude a ban on smoking.

Furthermore, the DOJ, in its ADA Title II Technical Assistance Manual states:

II-3.12000 Smoking.

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

Moreover, 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 U.S. 837, 843 n.9, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

28 C.F.R. § 35.132 is the regulation for 42 U.S.C. § 12201(b) and § 12201(b) was interpreted by the U.S. Court of Appeals for the Second Circuit in Staron v. McDondald's Corp., 51 F.3d 353, 356-57 (1995).

The plaintiffs in Staron misconstrued § 12201(b) in the same manner as the FAA and the DOT are misconstruing 28 C.F.R. § 132 and it was soundly rejected by the court, stating:

The Permissibility of Smoking Bans Under the ADA

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 point 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: Id. 356.

Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision … that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter. 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.

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 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. 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. Id. at 357.

Therefore, the U.S. Second Circuit Court of Appeals is in accord with the DOJ interpretation of the regulation and the statute upon which it is based.

Now, let’s review the interpretation of the DOJ for other sections of the regulations for Title II and Title III of the ADA:

Many commenters asked that environmental illness … 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). See 28 C.F.R. Pt. 35, App. A, § 35.104, page 543-44 (7-1-06 Edition); 28 C.F.R. Pt. 36, App. 36, § 36.104, page 684 (7-1-06 Edition).

In sum, the determination as to whether allergies to cigarette smoke, 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. Moreover, the addition of specific regulatory provisions relating to environmental illness in the final rule would be inappropriate at this time pending future consideration of the issue by the Architectural and Transportation Compliance Board, the Environmental Protection Agency, and the Occupational Safety and Health Administration of the Department of Labor. 28 C.F.R. Pt. 35, App. A, § 35.104, page 544 (7-1-06 Edition); 28 C.F.R. Pt. 36, App. 36, § 36.104, page 684 (7-1-06 Edition).

The U.S. Court of Appeals for the Second Circuit is also in accord with the DOJ of the above cited regulation.

In Staron v. McDonald’s Corp., the court held that:

Cases in which individuals claim under the ADA that allergies to [cigarette] smoke constitute a disability and require smoking restrictions are simply subject to the same reasonableness analysis as are other cases under the Act. Id. at 357.

The DOJ interpretation of its own ADA Title II regulations and its ADA Title II Technical Assistance Manual and the interpretation of the federal statute by the U.S. Second Circuit Court of Appeals leave no doubt that individuals with disabilities caused or exacerbated by second hand tobacco smoke are entitled to the full protections of the ADA.

Therefore, if a smoking ban is what it takes; that is what the regulations require.

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

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