JUN 13 1997 The Honorable Earl Pomeroy U.S. House of Representatives Washington, D.C.

20515 Dear Congressman Pomeroy: This is in response to your letter on behalf of your constituent, XXX , who asserts that the North Dakota State Legislature has violated the Americans with Disabilities Act of 1990 (ADA) by failing to enact legislation to ban smoking in places of public accommodation. Please excuse our delay in responding to you. The ADA prohibits discrimination on the basis of disability. The ADA clearly permits a ban on smoking, but it only requires covered entities to make reasonable modifications in their policies and practices that are necessary to enable individuals with disabilities to participate in their programs and activities. The Department of Justice has declined to state categorically that sensitivity to cigarette smoke is a disability because the degree of impairment varies among individuals. To be legally recognized as a disability, a physical or mental impairment must substantially limit one or more major life activities of an affected individual. Thus, the determination as to whether sensitivity to smoke is a covered disability must be made using the same case-by-case analysis that is applied to all other physical or mental impairments. In some cases, an individual's respiratory or neurological functioning may be so severely affected by sensitivity to cigarette smoke that he or she will be considered disabled. Such an individual would be entitled to all of the protections afforded by the ADA. These protections may include a ban on smoking in a specific covered facility if such a ban can be imposed without fundamentally altering the nature of the business or program. In other cases, however, an individual's sensitivity to smoke will not constitute a disability because the individual's major life activity of breathing is affected, but not substantially impaired. In this situation, an individual would not be entitled to claim ADA protection.

cc: Records, Chrono, Wodatch, Blizard, FOIA n:\udd\blizard\drsltrs\policy\smoking\sc. young-parran -2After a determination is reached that a person is an individual with a disability who is entitled to claim the protection of the ADA, it is necessary to determine if a requested modification, such as a ban on smoking, is "reasonable." This determination involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and its effect on the organization that would implement it. Staron v. McDonalds Corp., 51 F.3d 353 (2d Cir. 1995) (Lower court dismissal was reversed and remanded to permit plaintiffs to offer evidence that a requested smoking ban was a reasonable modification). Because of the case-by-case nature of these determinations, the ADA regulations do not require an absolute ban on smoking. Therefore, the failure of the North Dakota State Legislature to impose a ban on smoking in public places does not violate the ADA. I hope this information is helpful to you in responding to your constituent. Sincerely, Isabelle Katz Pinzler Acting Assistant Attorney General Civil Rights Division XXX XXX XXX XXX XXX XXX RECEIVED DEC 12 1996 Congressman Earl Pomeroy FARGO, N.D. 58102 RECEIVED DEC 18 1996 Congressman Earl Pomeroy

November 21, 1996

Washington, DC 20515

In 1995 the North Dakota State Health Department attempted to protect non-smoking employees and children from the effects of second-hand tobacco smoke. They also attempted to address the needs of the breathing disabled. This was presented as Bill 1367 at the 54th Legislative Assembly. I have read through the entire testimony on Bill 1367 in utter disbelief. The way I see it, a majority of 52 legislators voted in favor of an activity that has no legal or constitutional right, and in doing so completely ignored the legal rights established by the federal government in the 1990 Americans With Disabilities Act. ADA requires that a reasonable accommodation be made for the breathing disabled. Non-smoking areas may be socially adequate for the average non-smoker, but are entirely ineffective as a reasonable accommodation for the breathing disabled. A smoke-free policy is the most effective reasonable accommodation. (See Staron v. McDonald's Corp., 51F3d353) It appears to me that rather than complying with ADA and requiring businesses to make reasonable accommodation for the breathing disabled. North Dakota legislators have allowed private businesses and the hospitality industry to continue to make unreasonable accommodation for substance abuse. Testimony was presented by Jess Cooper representing North Dakota's State Chamber of Commerce (GNDA) and David Meiers representing the North Dakota State Hospitality Association opposing Bill 1367 on the basis of the economic impact that it would have on private businesses and the hospitality industry. In my research I have found no documentation of long-term negative economic impact on businesses (including restaurants) in other cities and states where a smoke-free policy has been established. In fact, in most cases business has increased. Why? Simple mathematics--the majority (75%) of all US citizens are non-smokers and prefer a smoke-free environment. I am breathing disabled. Nothing aggravates my condition more than tobacco smoke. As a business owner I am fortunate that I no longer have to seek employment in a state that does not understand what it means to be breathing disabled. However, as an interior designer I travel all over North Dakota and Minnesota and I cannot enter most businesses, restaurants, and motel lobbies that are not smoke-free.

I know that the 1990 Americans With Disabilities Act covers my concerns. Under ADA I can sue each business and restaurant and motel all across North Dakota and Minnesota that I am unable to enter. Kind of a spendy solution, don't you think? Over the past year I have had many conversations with other individuals who are also breathing disabled. We wonder what to do when North Dakota legislators, North Dakota's State Chamber of Commerce (GNDA) and the North Dakota State Hospitality Association do not seriously respond to federal laws like the Americans With Disabilities Act. Your suggestion on how we can eliminate this form of discrimination in our state would be appreciated. Sincerely, XXX XXX XXX XXX