Virginia smoking suit cites ADA

The bars and restaurants of Virginia are a smoker’s last haven in the Washington area, following bans in Maryland and the District. But four Virginia restaurants may be added to the smoke-free list if a local court agrees with a D.C. man.

James Bogden, 51, says four Northern Virginia restaurants are violating the Americans with Disabilities Act (ADA) by allowing smoking. Mr. Bogden has suffered a heart attack and has coronary artery disease. He says he can’t safely patronize the restaurants because secondhand smoke can increase his risk of another heart attack.

He claims the disease limits his “major life activities,” as defined by the ADA, and that by allowing smoking, the restaurants discriminated against him on the basis of his disability, according to his complaint.

The suit was filed against Harry’s Tap Room of Arlington, Mike’s American Grill of Springfield and Denny’s and Clyde’s of Alexandria.

The restaurants argue in their motion to dismiss the suit that Mr. Bogden is not disabled under the ADA definition. They also say they aren’t discriminating because if secondhand smoke is harmful to everyone, as Mr. Bogden says, then everyone is exposed to risk if they enter the restaurant.

They also say that the suit is a “thinly veiled attempt” to bypass the state legislature, which has already voted against a statewide smoking ban. However, Democratic Gov. Tim Kaine said earlier this month that he wants to pass a statewide smoking ban this session.

Mr. Bogden’s suit is an unusual legal move, but there have been a few similar cases in the past, according to a Connecticut Law Review article published last month.

On the other side of the Potomac, in 1997, three women with asthma sued Ruby Tuesday’s restaurants in Gaithersburg and Rockville and a Red Lobster in Rockville. They said their asthma prevented them from enjoying the restaurants as other people could. The case was settled out of court.

In 1995, a woman with cystic fibrosis sued a concert venue in Fort Worth, Texas, asking it to ban smoking when she attended performances. The venue, Caravan of Dreams, said doing so would lead to a drop in business. The court agreed and ruled that the smoking ban was not a reasonable accommodation under the ADA.

Two years earlier, four persons in Connecticut tried to sue McDonald’s and Burger King to ban smoking. The parties settled before the case was decided, but McDonald’s ended up banning smoking in the restaurants it owns.

The same Connecticut Law Review article argues that those cases were decided long before many of the statewide and regional smoking bans went into effect. The authors cite studies that have shown restaurants and bars did not lose business because of smoking bans.

The article said the lack of a financial burden and the health affects of smoking bans leads the authors “to conclude that the ADA can be used successfully to enforce indoor smoking bans and provide all persons with equal access to indoor public accommodations.”

The U.S. District Court for the Eastern District of Virginia is expected to hold the first hearing in the case Feb. 8.

• Retail & Hospitality appears Mondays. Send news to Jen Haberkorn at 202/636-4836 or jhaberkorn@washing tontimes.com.