October 7, 1993 Mayor Freeman Bosley, Jr., City Hall Room 200 St.

Louis, MO 63103 Dear Mayor Bosley, I am writing to you in regards to The Rehabilitation Act of 1973, Section 504, the American With Disabilities Act of I090 and City Ordinance #62710 of 1992. I have a respiratory disability in the fact that I have Asthma and that I have severe reactions to small amounts of cigarette smoke. The City of St. Louis is discriminating against me, my son and all persons with a respiratory disability by enacting and/or adhering to City Ordinance #62513 and the Missouri Clean Indoor Air Act. As a member of this community and more importantly as a mother, I respectfully request and demand -- on behalf of myself and my child who have medical conditions (Asthma) making us especially sensitive to tobacco smoke -- that the City of St. Louis provide us with protection from the now-proven hazards of Environmental Tobacco Smoke (ETS) by prohibiting smoking in all public places except in separate (and separately-ventilated) areas. It has been clear for at least ten years that persons who have conditions which make them especially sensitive to ETS as "handicapped persons," and are entitled to legal protection for their health and physical comfort. See, e.g., Vickers vs. The Veterans Administrations, 549 F,. Supp 85 (WD Wash. 1982); Brinson vs. Dept. of Environmental Regulation, (U.S. Dist Ct., Dist Fls., Tallahassee Div. 1984) Pletten vs. Department of the Army, U.S. Merit Systems Protection Board Nos. CH0752801009999, CH015202901 (1981); White vs. U.S. Postal Service, 2.8 TPLP 8.25, No. 01853426 (EEOC Appeal 1937); see also Parodi vs. Merits Systems Protection Board, 690 F. 2d 731 (CA 9 1982), as amended, 702 F. 2d 743 (1983) (smoke-sensitive employee "environmentally disabled." Asthma is a respiratory disability and as such my child and I have a Civil right to be accommodated for our disability in all buildings and programs available through the City of St. Louis and with respect to the uses, services and enjoyment of all places of public accommodation. Persons legally entitled to protection as handicapped include those adults who have asthma, emphysema, bronchitis, cystic fibrosis, sinusitis allergies, and many other conditions which are triggered or exacerbated by exposure to

tobacco smoke to the extent that at least one major activity (e.g., breathing and working) area adversely affected. This category also includes those individuals forced to use oxygen and/or respirator.

01-02835 Also included in this category and protected by law, is a much larger number of children, including millions of infants and toddlers. The Environmental Protection Agency (EPA) has reported that very young children will suffer as many as one million asthmatic attacks, 300,000 unneessary respiratory infections, and tens of thousands of unnecessary hospitalizations and inner ear infections as a result of exposure to ETC. For all of the following reasons, it seems clear that the City of St. Louis does not comply with the Federal Rehabilitation Act and Americans With Disabilities Act with regard to protecting me, my son, or any individual with a respiratory disability: 1. I do not have access to City Hall, the Civil Courts Building, the Cervantes Convention Center, the Fox Theatre, Kiel Auditorium, the Arena, the Lambert Airport facility, the Community Colleges, must grocery stores movie theatres and restaurants without a drive through. 2. On January 1, 1993 at least one person apparently suffered an asthma attack at the airport from exposure to ETS serious enough to require police and paramedics to be called. 3. Many young children --including infants and toddlers-- are routinely brought into areas of the airport, the Convention Center, the Arena, etc. where smoking is permitted arid where they subjected to concentration of ETS far higher that those upon which the EPA based its risk estimates. These children are no less entitled to protection under the law simply because the adults or teens who supervise them may have brought them into an area where they came into contact with these toxic chemicals. 4. Should a child suffer an allergic or asthmatic attack, respiratory disease, or middle ear infection while in or shortly after being in the area where smoking is permitted, the City of St. Louis would be liable in tort. In such an action, the negligence or "assumption of risk" by

the person bringing the child into that area (e.g., thee "other parent", grandparent, teenager) is obviously not a defense to an action brought on behalf of that child - provided that the City of St. Louis was on notice of the danger. This letter and its attachments place you on notice of precisely these dangers. 5. The law requires, as a minimum, that the City provide a reasonable accommodation to persons especially susceptible to tobacco smoke. Since the EPA and many other agencies (e.g., National Academy of Sciences, U.S. Public Health Service, National Cancer Institute, World Health Organization) have all reported that ETS causes lung cancer and lung cancer deaths in nonsmokers, it is hard to argue that it is reasonable to require St. Louisians exercising their constitutional right to carry on government or other business to be exposed to any level of this toxic mix much less to be directly exposed by being forced to be near a smoker.

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6. Many of these same agencies have also reported that significant amounts of the toxic chemicals in tobacco smoke drift, and are recirculated even through the most advanced and sophisticated ventilating systems. They have therefore officially recommended that, if indoor smoking is to be permitted at all, it must be restricted to separate rooms which are separately ventilated, and not part of the general ventilating system. 7. The ADA includes, as handicapped, any individual, who because of the negative reaction of others is substantially limited in the major life activity of working and that also qualifies me for protection under the ADA. Which means that the negative reaction that smokers have to banning smoking is displaced upon the individual with the respiratory disability Act contributes to the attitudinal barriers which exist for those of us with a Chronic Lung Disease. It is within my rights to file a complaint of Civil Rights violation as well as to bring legal action against the City of St. Louis if I am exposed to Environmental Tobacco Smoke (ETS) whether it is in City Hall, the Civil Courts Building, the Cervantes Convention Center, the Arena, Kiel Auditorium, the Lambert Airport facility, etc. I might add that it is also possible to file criminal charges of child abuse and/or child endangerment when an asthmatic child is exposed to cigarette smoke. And

cigarette smokers can be criminally charged with assault when they intentionally use that smoke to make someone else ill. "Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), provides in part that: No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance." The City of St. Louis, the Missouri Botanical Garden, the Community Colleges, Harris Stowe Teachers College, any business, public or private which receives Federal financial assistance in the form of grant, loan, or contracts is obligated to comply with Section 504 and the ADA. Other businesses or organizations not receiving Federal financial assistance are obligated to comply with the Americans With Disabilities Act. The ADA provides in part: "Section 1630.1 (b) and (c) Applicability and Construction. Unless expressly stated otherwise, the standards applied in the ADA are not intended to be lesser than the standards applied under the Rehabilitation Act of 1973. The ADA does not preempt any Federal law, or any state or local law, that grants to individuals with disabilities protec tion greater than or equivalent to that provided by the ADA. This means that the existence of a lesser standard of protec01-02837 tion to individuals with disabilities under the ADA will not provide a defense to failing to meet a higher standard under another law.... On the other hand, the existence of a lesser standard under another law will not provide a defense to failing to meet a higher standard under the ADA...." The Missouri Clean Air Act and City Ordinance #62523 which was recently passed and requires a smoking section to be established is unconstitutional and discriminatory and may not be used by organizations, businesses, state or local governments to discriminate against individuals with a respiratory disability. And..."will not provide a defense to failing to meet a higher standard under the ADA.." Section 50A provides in part:

Inconsistent State Laws. "Section 104.10 (a) The obligation to comply with this part is not obviated or alleviated by the existence of any state or local law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services or to Practice any occupation or profession. and "104.11 (a)(4) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination prohibited by this subpart. The relationships referred to in this subparagraph include relationships with employment and referral agencies, with labor unions, with organizations providing or administering fringe benefits to employees of the recipient, and with organizations providing training and apprenticeship programs." and "(c) A recipient's obligation to comply with this subpart is not affected by any inconsistent terms of any collective bargaining agreement to which it is a party." For all these reasons, I respectfully request and demand that the City of St. Louis provide me, my son and others with respiratory disabilities who are sensitive to tobacco smoke with protection from the now-pro,)'en hazards of Environmental Tobacco Smoke (ETS) as we are entitled to under law by prohibiting smoking except in separate (and separately-ventilated areas. I am enclosing a copy of a report which shows that 861'0 of people with asthma cite cigarette smoke as a major cause in provoking or aggravating existing asthma conditions. Also enclosed is a recent article from the Post that shows that asthma is a factor in morbidity. 01-02838

Last, but not least, I am enclosing a letter from a mother of child with

asthma. I have run into this same problem concerning myself and my son. People seem to think that if you expose someone with asthma enough times to cigarette smoke that eventually they will get used to it. On the contrary, I have found and read that just the opposite is true. Also, my son and I have both experienced asthma attacks which were life threatening. These attacks were provoked by exposure to cigarette smoke (ETS). I wish to see this issue resolved without having to take legal action but I want you to know that I am more than willing to use legal action, if that is necessary, to ensure the safety. of myself and my child and to achieve the public accommodation to which we are entitled. My tolerance concerning this issue is wearing very thin. Yours Truly, XX XX XX ST. Louis, MO

XX

(b)(6)

cc: Janet Reno, Esq. John F. Banzhaf III, Esq. Jay Nixon, Esq. 01-02839