U.S.

DEPARTMENT OF JUSTICE
Civil Rights Division

T. 9/15/93
SBO:MAF:MM:jfb

204-012-00043 Washington, DC 20530

XX
(b)(6)
Big spring, Texas XX

Dear XX (b)(6)

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
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Because 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
01-02593

(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 breath-
ing 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
01-02597

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)
01-02597.1