Tobacco Scam: Smokefree Restaurants: Fake Economics

Ubhi v. State Compensation Insurance Fund, Cat' n' Fiddle Restaurant
No. SFO-0341691 (California Workers Compensation Appeals Board, 1990)

A vegetarian, non-smoking waiter in California received a $10,000 settlement for a heart attack he suffered after five years of working in a smoke-filled bar. Also as part of the settlement, the Board agreed to cover the waiter's medical bills, which amounted to about $85,000.

Staron, et al. v. McDonald's Corporation
872 F.Supp.1092, 8.2 TPLR 3.129, No.3:93 CV 665, U.S. District Court (D. Conn. 1993)

Plaintiffs brought an action under the American with Disabilities Act, 42 U.S.C. 12101, saying that the presence of tobacco smoke in the Defendant's restaurants prevents the Plaintiffs from having the opportunity to benefit from the Defendant's goods and services. The Plaintiffs, all of whom have adverse reactions when in the presence of smoke, also allege that the Defendant's restaurants are places of public accommodation under 42 U.S.C. 12181.

They seek an injunction against smoking in the Defendant's restaurants, "thereby giving the plaintiffs equal access to said restaurants."

A District Court judge, at 9.1.TPLR 2.9, affirmed, approved and adopted a Magistrate Judge's recommended ruling granting the defendant's motion to dismiss.

See Felsenthal, E., "Disabilities Act Is Being Invoked in Diverse Cases," Wall Street Journal, March 31, 1993, B1; Johnson, K., "Lawsuits Seek to Ban Smoking in Fast-Food Restaurants," New York Times, April 3, 1993, 28; Keegan, P., "Mothers Hit Fast Feeders with Smoking Policy Suit," Nation's Restaurant News, April 26, 1993, 3; Taylor, S., "McSuit: American Fast Food Icon Hit with Litigation over ETS," Indoor Air Review, June 1993, 1, 8; Hansen, M., "Suits Seek Fast-Food Smoking Ban," American Bar Association Journal, July 1993, 40; "Smoking Case is Dismissed," Wall Street Journal, March 16, 1994, B4; Pines, D., "Appeals Panel Reinstates Smoking Claim," New York Law Journal, April 6, 1995, 1, 6; and Hansen, M., "Smoking Suit Fails," American Bar Association Journal, May 1994, 27.

On April 4, 1995, the U.S. Court of Appeals for the Second Circuit reversed, at 51 F.3d 353, 1995 U.S. App. LEXIS 7643, 4 AD Cases 353, 10.2 TPLR 2.33 (2nd Cir.1995), the judgments of the district court, ruling that "we find that plaintiffs' complaints do on their face state a cognizable claim against the defendants under the Americans with Disabilities Act."

The court noted that "the determination of whether a particular modification is 'reasonable' involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the disability in question and the cost to the organization that would implement it.... We see no reason why, under the appropriate circumstances, a ban on smoking would not be a reasonable modification."

See "Smoking Ban Lawsuit, "Wall Street Journal, April 7, 1995, B5; Fry, J., "Federal Appeals Court Says Non-smokers Can File Suit Under ADA," Indoor Air Review, June 1995, 19; and 39 Trial Lawyer's Guide 358-360, Fall 1995.

Peterson v. Belgian Waffle & Omelet Inn, et al.
8.4 TPLR 3.255, U.S.D.C., No.93-C-983W (D.Utah 1993)

Plaintiff, who suffers from "severe sarcoidisis, a genetic lung disease that necessitates continuous oxygen therapy," sued several establishments. He brought suit under the Americans with Disabilities Act, contending that each of the defendants "discriminates against persons with breathing disabilities, preventing them from full and equal enjoyment of the goods, services, facilities, and accommodations afforded other patrons" because of the presence of environmental tobacco smoke on their premises. The suit was voluntarily dismissed in the spring of 1994.

King v. Hofer
49 Cal.Rptr.2d 719, 42 Cal.App.4th 678 (Cal.App.1 Dist.1996)

A non-smoking patron sued a restaurant owner for allegedly violating the Unruh Civil Rights Act when, after he had complained to the city manager about the Defendant not having properly enforced a local ordinance that bans smoking in restaurants with bars during hours in which the restaurant is also open. The owner told him that he should go elsewhere and would no longer be served at her restaurant.

The Superior Court, Contra Costa County, granted the Defendant's motion for summary judgment, ruling that the Act did not protect the Plaintiff from discrimination based on his status as a non-smoker, that the non-smoking status was neither immediately apparent nor immutable, and that the non-smoking status did not carry a negative connotation. Furthermore, the non-smoker enjoys majority status.

Edwards, et al. v. GMRI, Inc., et al.
Montgomery County (Md.)Circuit Ct., No.179593 (1997)

Three asthmatic adults sued Red Lobster and Ruby Tuesday restaurants under the Americans With Disabilities Act (ADA). The plaintiffs allege that they attempted to patronize the defendants' restaurants but were forced to leave because of the tobacco smoke there. The plaintiffs further state that the defendants' "failure to establish a policy prohibiting smoking in their restaurants throughout the state discriminates against the Plaintiffs on the basis of their disability in their use and enjoyment of" the restaurants.

See Shane, S., "3 Women With Asthma Sue to Ban Smoking at Two Chain Restaurants," Baltimore Sun, February 5, 1998, 4B; Ackers, M.E., "Suit Seeks to Ban Restaurant Smoking," The Capital (Annapolis,MD), February 5, 1998, B3; and Castaneda,R., "Women Sue Restaurants Over Smoke; Discrimination Alleged Against Asthmatics," Washington Post, February 19, 1998, M1.

The case was later removed to federal court. The Defendants moved for dismissal of the case, claiming that the Plaintiffs had failed to exhaust state and local administrative procedures and that the Plaintiffs are not "disabled" within the meaning of the ADA.

On March 1, 1999, the U.S. District Court (Chasanow, J.), denied the Defendants' motion to dismiss in Ellender v. Edwards, et al. v. GDRI, Inc., et al., Civil Action No.DKC-97-4327 (U.S.D.C., D.Md.).

The Court rejected the Defendants' contention that physical impairments of an intermittent and transitory nature do not qualify as a disability under the ADA. "Plaintiffs claim that the tobacco smoke in Defendants' restaurants interferes so seriously with their ability to breathe that they cannot remain on the premises." The Court ruled that the claim "adequately alleges a substantial limitation on the major life activity of breathing."

After noting that Title III of the ADA was enacted to facilitate disabled individuals' access to places of public accommodation, the Court concluded: "Just as a staircase denies access to someone in a wheelchair, tobacco smoke prevents Plaintiffs from dining at Defendants' restaurants. Therefore, Plaintiffs have adequately alleged that they are disabled within the meaning of the ADA and that their disability bars them from defendants' restaurants."

See Weir, K., "Eatery Smoking Lawsuit Still Alive," The Capital (Annapolis,MD), March 6, 1999, A9.