DOT and FAA DEFERRAL TO STATE AND LOCAL SMOKING ORDINANCES

In a Notice of Proposed Rulemaking (NPRM), The Department of Transportation (DOT) considered the petitions for an Accessible Path Through Airports for Persons with Severe Respiratory Disabilities filed by Dr. Dwain Eckberg and Dr. Judith Plotkin. See Nondiscrimination on the Basis of Handicap in Air Travel. NPRM, Federal Register / Vol. 61, No. 213 / Friday, November 1, 1996 / Proposed Rules, 56481.

The DOT stated:

The petitioners make the point that some individuals have respiratory conditions that can create significant problems for them if they are exposed to tobacco smoke. If such an individual must, in order to get from the entrance of an airport to an aircraft, pass through areas in which he or she is exposed to smoke, he or she may suffer these health problems, require oxygen that is not immediately available, or require emergency medical treatment. Exposure to smoke, then, acts as a significant barrier for such individuals to the use of the air travel system. (emphasis added). Id. at 56484.

The Department would not intend, if it granted these petitions, to propose to ban all smoking in terminals. Regulating smoking in public places is traditionally a state or local matter, and the Department would not attempt to preempt state or local decisionmaking. (emphasis added). Id. at 56484.

Also, in a letter to Mr. David Fusco, dated September 26, 2006 (available at http://www.gaspoftexas.com/davidfusco.pdf), Ms. Catherine M. Lang, Acting Associate Administrator for Airports, Federal Aviation Administration (FAA) stated:

As indicated in our previous response, the Federal Aviation Administration does not

regulate smoking in airport terminals.

Smoking in public buildings is subject to local and State law. We continue to believe that local government, not the FAA, has the appropriate regulatory authority on this matter.

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).

Now, let’s review federal court decisions that soundly reject the DOT’s deference to state and local smoking laws and ordinances.

In Hahn Ex. Rel. Barta v. Linn County, Iowa, 130 F.Supp.2d 1036 (N.D.Iowa 2001), the US. District Court for the Northern District of Iowa held that:

The court finds that, because Linn County’s plan complies with Iowa Code § 331.439(1)(b) and (d), is not dispositive as whether a violation of the ADA [Americans with Disabilities Act], the RA [Rehabilitation Act] or ICRA [Iowa Code] has occurred.

Also, in American Association of People with Disabilities v. Hood, 278 F.Supp.2d 1345 (M.D.Fla. 2003), the U.S. District Court for the Middle District of Florida held that:

Thus, regardless of any legal duties imposed by Florida law, the Court finds that Defendants must conform their conduct to satisfy federal requirements of the ADA.

Furthermore, in Wood v. County of Alameda, 875 F.Supp. 659 (N.D.Cal. 1995), the U.S. District Court for the Northern District of California held that:

Giving to § 12201(b) [42 U.S.C. § 12201(b)] the meaning which the Court must in light of Congress’ unambiguously stated intent to guarantee a certain level of access to the protections created by the ADA, it becomes clear that it is immaterial whether the California statute provides “greater or equal” protection than the ADA because Congress did not intend the ADA to “defer” to any state statutes, regardless of the level of additional protection which those statutes provide. (emphasis in original). Id. at 664.

More importantly, in Staron v. McDondald's Corp., 51 F.3d 353, 356-57 (1995), the U.S. Court of Appeals for the Second Circuit soundly rejected the argument that smoking should be exempted from the protections of the ADA holding that:

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.

The actions of the DOT can best be described with a quote by Senator Alan Cranston:

A most unfortunate situation exists in which the Department of Transportation’s hands-off, local-option, self-certification, no-monitoring, and no-criteria position is transforming the anti-discrimination laws into meaningless symbols. See 128 Cong.Rec.32,634, 32,643 (1982).

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