U.S. DEPARTMENT OF JUSTICE Civil Rights Division T.

9/15/93 SBO:MAF:MM:jfb 204-012-00043 XX (b)(6) Big spring, Texas XX Dear XX (b)(6) Washington, DC 20530

This is in response to your letter to this office regarding the banning of smoking in public buildings. The ADA authorizes the Department of Justice to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA nay apply to you. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. Under the Americans with Disabilities Act of 1990 (ADA), the Department of Justice declined to state categorically that allergy or sensitivity to cigarette smoke should be recognized as a disability under the ADA, because in order to be viewed as a disability under the ADA an impairment must substantially limit one or more major life activities. An individuals respiratory or neurological functioning may be so severely affected by allergies or sensitivity to cigarette smoke that he or she will satisfy the requirements to be considered disabled under the ADA. Such an individual would be entitled to all of the protections afforded by the ADA. In other cases, however, individuals' sensitivities to smoke or other environmental elements will not rise to the level needed to constitute a disability. If, for instance, an individuals major life activity of breathing is somewhat, but not substantially, impaired, the individual is not disabled and is not entitled to the protections of the statute. Thus, the determination as to whether allergies or sensitivity to smoke 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. (See the enclosed title III regulation at page 35549.) cc: Records Chrono CRS Friedlander Milton ca, FOIA, Breen, udd:Milton.Letters.Smoking.Spe 01-02592 - 2Because of the case-by-case nature of the determination, the Department of Justice ADA regulations do not mandate restrictions an smoking. It is important to note that section 501(b) of the statute merely states that the prohibition of, or the imposition of restrictions on, smoking in places of public accommodation is not precluded by the ADA. The statute does not mandate imposition of any restrictions. Furthermore, there is currently no Federal statute that absolutely bans smoking in public buildings. If you believe that you satisfy the requirements to be considered disabled under the ADA and wish to take advantage of its protections, you may either file a private suit in Federal court or send a complaint to the Department of Justice for investigation. Complaints against State and local government buildings should be filed with this office. Complaints against privately owned facilities should be mailed to: Public Access Section, Civil Rights Division, Department of Justice, P.O. Box 66738, Washington, D.C. 20035-6738. I hope this information has been helpful to you. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure

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(Handwritten) (b)(6) XX Big Spring, Texas XX U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. Box 66118 Washington, D.C. 20035-6118 To Whom It May Concern: As a disabled person I'd like to know why smoking can't be banned inside any building - with my breathing problem, I've found this to be a real problem. You see, I have Myasthenia Gravis and can only use the upper part of my chest to get air. My shoulders raise with each breath I take - also I have asthma and few allergies. It's hard to get out on good days

01-02594 Page Two but the smokers make my life miserable. If we can get into a building we have to be able to breathe in order to do anything there. Our Wal-Mart store has no smoking - but people sit in the enclosure were we have to enter the area fields with smoke. I've been in grocery stores and people in line right behind me blowing smoke all around me. I get a Kleenex out and put over my mouth and nose, but some people just won't take the hint. I guess I need to speak-up but I've never been one to make a scene.

My point, why can't the Act of 1990 help us to carry this extra step? Has it been considered? Is there another legislation needed?

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Page Three Think of all the other people who have asthma - allergies and emphysema - not only the disabled. If people have to smoke why let

them ruin the air we need - and I might add not only air we need, but air harder to get because our muscles have to work harder to get what air we can get. I haven't even been in my own father and mother's home in years because my father is a pipe smoker and he says he can't stop. This has been very hard emotionally for me as I love them so much, but it is his home - when they come to see me he does go outside to smoke, no one smokes in our home. It's terrible to eat out in restaurants

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Page Four with poor ventilation or be seated at the edge of a non-smoking area - or the air-intake circulator be near so the smoke just circles all over - then you can't get enough air to eat, as just to eat takes a lot of strength. Maybe you can let me know if this has been considered or if more is needed to be done in this area. It really is a problem and I'm sure I'm not alone. Thank you for taking the time to read this. I'd appreciate some "out-put" or information from you. Thanks, (b)(6)

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