2011/01/30: Marshall Keith’s argument that ADA doesn’t apply to private businesses and rebuttal from Billy Williams, GASP of TX

The blog 2011/01/25: Press releases from Rep. Oxford and MoGASP about Ms. Judd’s ADA complaint attracted a few comments, among them being one from Marshall P. Keith on 2011/01/30 at 2:15 pm taking issue with the notion that the ADA applied to private businesses. Mr. Keith’s comment, as it relates to his argument, is reproduced below, together with the referenced Supreme Court case which I’ve added for completeness.

Mr. Billy Williams, Executive Director of GASP of Texas, who is very knowledgeable on relevant case law, was good enough to provide the rebuttal which follows it below.

mogasp,

…. In this case I agree that the government has every right to restrict smoking as it is truly public property, my objection is using the ADA to achieve that goal. The “protected class” angle has long been used to strip property owners of their rights and this is just another cheap attempt to expand the scope of that philosophy. There is SCOTUS precedent showing that just because the public is invited in they do not lose private property status and to give the “protected class” more rights then the owner goes against every principle our country was founded on. The 14th amendment calls for equal protection from government
intrusion not equal access to private property!

Marshall P. Keith

SUPREME COURT OF THE UNITED STATES
407 U.S. 551
Lloyd Corp., Ltd. v. Tanner

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 71-492 Argued: April 18, 1972 — Decided: June 22, 1972

Respondents sought to distribute handbills in the interior mall area of petitioner’s large privately owned shopping center. Petitioner had a strict no-handbilling rule. Petitioner’s security guards requested respondents under threat of arrest to stop the handbilling, suggesting that they could resume their activities on the public streets and sidewalks adjacent to but outside the center, which respondents did. Respondents, claiming that petitioner’s action violated their First Amendment rights, thereafter brought this action for injunctive and declaratory relief. The District Court, stressing that the center is “open to the general public” and “the functional equivalent of a public business district,” and relying on Marsh v. Alabama, 326 U.S. 501, andAmalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, held that petitioner’s policy of prohibiting handbilling within the mall violated respondents’ First Amendment rights. The Court of Appeals affirmed.

Held: There has been no dedication of petitioner’s privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center’s operations, and petitioner’s property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner’s tenants. The facts in this case are significantly different from those in Marsh, supra, which involved a company town with “all the attributes” of a municipality, and Logan Valley, supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling. Pp. 556-570.

446 F.2d 545, reversed and remanded. [p552]

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 570.

Here’s Mr. Williams’ response:

MoGASP,

Marshall Keith cites a case where it is acknowledged that a shopping mall was privately owned and that the owner could restrict passing out hand bills. Also, it involved free speech not access.

Whereas, the ADA and the Civil Rights Act recognize that privately owned property that is open to the public is “commercial” property and access to the property cannot be restricted on the basis of disability, race, ethnic origin, sex or religion. Simply put, once the owner opens his “private property” to the public, he cannot discriminate against a protected class in providing service.

Marshall Keith cites “facts” that are inapplicable in an attempt to prove a point that the Supreme Court has time and time again upheld.

Billy Williams
Executive Director
GASP of Texas

2011/01/31 P-D Letters: “St. Louis County should curtail smoking ban exemptions”

A great letter from Marc Hartstein grabbed the top spot on today’s St. Louis Post-Dispatch Letters page. It provides further reinforcement for revisiting and strengthening the current St. Louis County smoke-free air ordinance, and removing undesirable and unfair exemptions.

Councilwomen Colleen Wasinger, Barbara Fraser and Marc Hartstein at a CCCAir (CARE) planning meeting, October 27, 2009, just days before the Prop N vote

Letters to the editor, January 31
Comment | Posted: Monday, January 31, 2011 12:00 am

St. Louis County should curtail smoking ban exemptions

Regarding “Tougher rules on smoking sought” (Jan. 24): One year ago last fall, a group of committed volunteers united as the County Citizens for Cleaner Air (CARE) to garner support for our St. Louis County Council’s Clean Indoor Air Act.
         During the course of our campaign, CARE volunteers spoke to literally thousands of area citizens. Each of us found that voters on both sides of the issue and on both sides of the aisle expressed their disdain for the law’s exemptions.
         The heart, lung and cancer associations went so far as to initially and vocally oppose the ballot initiative because of them.
         In spite of the exemptions, when given their voice, St. Louis County voters overwhelmingly supported the ballot initiative, passing it by a decisive two-to-one margin. Post-election analysis showed that the proposition earned majority approval in every single county township.
         Now the St. Louis County Council has expressed an interest in building on the landslide victory by improving the law to even better represent the will of an even greater majority. To do so would further improve the health of citizens and visitors to our St. Louis region.
         I applaud St. Louis County Executive Charlie A. Dooley for his expressed interest in curtailing or abolishing its exemptions.
         Simply put, I am confident that our elected St. Louis County officials will do what is best, what is right and what is just.

Marc Hartstein • Creve Coeur Volunteer, County Citizens for Cleaner Air

2011/1/30: Old School Letterpress Printing and Secondhand Smoke

I just watched a video on YouTube – Old School Letterpress Printing – after a polite e-mail exchange with some of the most ardent opponents of smoke-free air.

The exchange was prompted by the previous blog in which a TWA airline pilot Schuyler Shipley had written in support of MoGASP’s protest against the Cigar Bar at the Clayton Ritz-Carlton in 1996. His support surprised a pro-smoking opponent who had worked with him on another issue: opposing OSHA regulations prohibiting an old type of letterpress machine because they were potentially hazardous. As was noted in the e-mail thread:

“A lot of old letterpress printers are missing tips of their fingers due to the presses “Sky” championed. Still, using a hand-fed platen should be a free choice.”

What struck me was a remarkable similarity to the smoking issue, and the use of similar verbiage, as above in the reference to “free choice.”

But another pro-smoking supporter responded:

“I can see why OSHA might not have cared for them if there was an alternative. It’d be all too easy to lay one of the “pages” down a bit off-center and keep your fingers there for an extra half second to try to fix it. If you look at attempt at :35 into the second video you actually see something close to that happening!”

That’s the argument supporters use in favor of smoke-free air laws! And justifiably so, in my view.

Here’s the still image at 35 seconds from the YouTube video referred to above.

Old School Letterpress Printing demonstrated on YouTube

MoGASP, as a matter of policy, doesn’t oppose smoking, per se, as is clear from the third of our published goals:

“A society where smoking is done only between consenting adults in private.”

That ensures that no one is involuntarily harmed by this activity.

The same may be said about this old style letterpress. If, as noted in the thread, there’s a safer machine available, then government has the right – nay, duty – to implement regulations banning the more dangerous machines from use in letterpress businesses. But that presumably doesn’t prevent a private individual from using an old style letterpress printer in their home for personal use, as long as they’re not exposing anyone but themselves to harm.

Disclaimer: I’m informed about secondhand smoke but not about letterpress printing.

2011/01/26 P-D: “Ritz-Carlton gets first ticket for violating Clayton’s smoking ordinance”

Missouri GASP has organized at least two protest demonstrations outside the swanky Ritz-Carlton hotel in Clayton, initially to protest its first Cigar Smoker event in 1993, and another protest in 1996, described below. During the first demonstration a guest emerged from the hotel and said she had complained to management about the cigar smoke migrating out of the cigar bar to the rest of the hotel, to no avail. A female Post-Dispatch reporter covering the event asked for the guest’s name, and when she declined, instead of including this comment in her report it was simply ignored.

A press release after the second MoGASP protest is appended below followed by the recent Post-Dispatch story by reporter Margaret Gillerman of the Ritz-Carlton being fined for violating Clayton’s 2009 strong smoke-free air law.

RITZ-CARLTON HOTEL “CIGAR SMOKER” GETS VISIT FROM SMOKEBUSTERS

When the swanky Ritz-Carlton Hotel in Clayton, Missouri, decided to host its second black-tie “Cigar Smoker” in three years on November 21, the same day as the American Cancer Society’s Great American Smokeout, Missouri GASP thought it was time to mount a competing “Cigar Smokeout” outside as guests were arriving. GASP also contacted the hotel headquarters in Atlanta, Georgia. The hotel received a number of written complaints about the event. The Ronald McDonald House, chosen by the Ritz-Carlton to receive some of the proceeds, was asked by GASP to refuse any money raised from the Cigar Smoker. KMOX radio covered GASP’s protest, but the rest of the media were absent.

Ritz-Carlton Hotel, Clayton
MoGASP demo. November 21, 1996

SmokeBusters at the Ritz-Carlton Hotel’s black-tie “Cigar Smoker” posing outside the hotel at the end of their protest.
          This was the first time, to Missouri GASP’s knowledge, that any pro-health grass roots group had staged a protest against the increasingly popular Cigar Smokers being promoted around the country. Despite the chilly evening, GASP members and supporters, clad in the now-familiar “SmokeBuster” decontamination suits and masks, gathered outside the hotel on November 21, 1996, as guests were starting to arrive.
         They displayed protest signs with such slogans as “Cigar Smoke Pollution is RISKY not RITZY!” and “Cigar Smoke: The Gift That Keeps on Gagging!” The response from guests was mixed, as expected, some giving thumbs up signs and others being abusive. Local TV, radio and print media were contacted, but only KMOX radio, who said they “wouldn’t miss it for the world,” came to cover the event. The St. Louis Post-Dispatch once more responded to our invitation that “we don’t normally cover protests,” and the major TV news programs either said they had no staff available [Channel 2 (ABC) and Channel 30 (Fox)], might come but didn’t [Channel 4 (CBS)] or, in the case of Channel 5 News (NBC), that they had already done an anti-smoking story that day.
         In a prepared media handout GASP listed its objections as exposing non-smoking hotel patrons and employees to recirculated cigar smoke; denying access to breathing disabled smoke sensitive individuals, in alleged violation of federal law; and sending an “in-your-face” message about smoking and smoke pollution on the very day the Great American Smokeout was aimed at “preventing kids from smoking by involving them in smoke-free activities,” according to an American Cancer Society handout.
         In addition, we argued that for the Ritz-Carlton to say in its promotional material that it was donating part of the proceeds to the Ronald McDonald House was hypocritical, given that kids are a primary target of the tobacco industry.
         GASP asked the Executive Director of Ronald McDonald House, Dan Harbough, to refuse the donation on the grounds that making money from an event related to nicotine and tobacco smoke pollution cannot be reconciled with its mission of helping children. We subsequently learned that the Board of Directors had refused our request. When questioned about this decision Mr. Harbough said the Board “were not going to stand in the way of the Ritz-Carlton benefiting Ronald MacDonald House.”

• ACTION ITEM: Please write/call:
Dan Harbough,
Executive Director,
Ronald McDonald House,
4381 West Pine,
St. Louis, MO 63108.
tel: 314 773 1100 x13 fax: 773 2053

and express your opposition to this action by the Board.

GASP members also wrote letters to the Ritz-Carlton criticizing their Cigar Smoker, and a few received replies. Kim Mosley, a photography professor at St. Louis Community College at Florissant Valley, wrote asking “what about those guests who are especially sensitive to cigar smoke? Will you find them other accommodations? Will you have the carpet cleaned after the event?” Patricia Presti, elected to the Special School District Board earlier this year, wrote asking “What do your evenings celebrating cigar smoking say to children?” Airline pilot Schuyler Shipley wrote that “The Ritz-Carlton should reconsider its policy on this matter,” adding that he would not patronize them until they did. Hans Levi, a professor at Lindenwood College, wrote: “If you desist from having these [Cigar] Smokers, you will be performing a noble public service.”
         Ms. Joy Guze wrote expressing concern for hotel guests, adding she hoped employees who develop lung diseases would sue the hotel. She received a response from Tom Manno, General Manager, saying that the head office had informed all 33 Ritz-Carlton Hotels and Resorts worldwide of future dates of the Great American Smokeout to avoid similar conflicts. He concluded: “… no other guests will come in contact with cigar smoke the evening of the event, nor will they smell the smoke the next day. In addition, employees [sic] benefits include complimentary laundering of uniforms by the hotel.”
         One is tempted to ask: does this extend to complimentary laundering of employees’ lungs?

• ACTION ITEM: Please write/call:
Tom Manno, General Manager,
The Ritz-Carlton Hotel St. Louis,
100 Carondelet Plaza,
St. Louis, MO 63105.
tel: 314 863 6300 fax: 863 3525

Stephanie Platt,
Corporate Manager,
Public Relations,
Ritz-Carlton Hotel Head Office,
Atlanta, GA. [incomplete address available at present]
tel: 404 237 5500 fax: 261 7116

and ask them to stop hosting “Cigar Smokers” and instead consider going entirely smoke-free.

GASP has drawn up the following objectives:

* For all charitable organizations to refuse donations generated by “Cigar Smokers”
* For all organizations etc. in health-related fields to boycott the Ritz-Carlton until it stops hosting “Cigar Smokers”
* For the Ritz-Carlton instead to set a healthy example in the other direction by becoming the first totally smoke free hotel in St. Louis.

St. Louis City and County smoke-free air ordinance links:
         St. Louis City Ordinance 68481
         Saint Louis County web page

Ritz-Carlton gets first ticket for violating Clayton’s smoking ordinance

BY MARGARET GILLERMAN mgillerman@post-dispatch.com > 314-725-6758 | Comments (132) | Posted: Wednesday, January 26, 2011 12:15 am

CLAYTON • The Ritz-Carlton St. Louis has received the first citation for violating Clayton’s 7-month-old smoking ban — for allowing guests at the annual Cigar Club formal party Saturday night to light up.
         A Clayton police officer handed the ticket to Ritz general manager Patrick Franssen that night, and Police Chief Thomas Byrne also dropped by the hotel.
         Byrne said Franssen said the hotel’s attorneys believed it had not violated the ordinance, specifically noting a section of the law allowing a hotel to exempt 20 percent of its rooms. The lawyer, Byrne said, considered the ballroom to be one of those rooms.
         Ritz management did not return phone calls Tuesday asking for comment.
         The Ritz has an exemption for a lounge where the Cigar Club regularly meets. But the Saturday night event was in the hotel ballroom.
         Apparently, Byrne said, “they couldn’t fit the 400 people at the party in the cigar bar,” he said.
         The penalties for violating Clayton’s ordinance is a fine of up to $1,000 and up to 90 days in jail. Franssen was given a Feb. 16 date in municipal court to answer the charges.
         Clayton’s ordinance was enacted in July. The city of St. Louis and St. Louis County enacted anti-smoking ordinances on Jan. 2; Clayton’s is more restrictive than the city’s or county’s.
         Mayor Linda Goldstein said Tuesday that the city’s aldermen might tighten the ordinance’s language.
         ”We have 99.9 percent compliance, and we have great feedback from our hotels and our restaurants and our businesses,” Goldstein said. “Pretty much everybody is happy. But there’s always that 0.1 percent that could misunderstand the intent of the ordinance, so we’ll go back and look at the language.”
         She said that the Ritz management ‘seems very apologetic and I do think it was a misunderstanding.”
         She added: “There are no hard feelings.”
         Byrne said he got a call about the event Saturday night from Pat Lindsey, an anti-smoking activist and executive director of Tobacco-Free St. Louis.
         The party offered boxing for entertainment, in a ring in the chandeliered ballroom, and was attended by men in tuxedos and women in formal attire.
         That night a hotel manager told a reporter that the event complied with Clayton’s ordinance.
         ”This is a private event in an enclosed private room for our guests,” the manager said.

DOOLEY URGES COUNTY CHANGES

County Executive Charlie Dooley told the County Council on Tuesday that the county’s ordinance had produced “unexpected results.”
         ”Some people are getting (exemptions) that we thought would not be getting them,” he said. “We would like to work with you in the future to see if we can tighten some things up.”
         In writing the ordinance, County Council members said they wanted exemptions to protect small bars whose owners feared a smoking ban would hurt their business.
         But larger restaurant-bars have been among the 110 establishments that have received exemptions.
         Dooley told the council that one potential adjustment would be to consider a bar’s square footage. Such a requirement exists in the city of St. Louis, where bars larger than 2,000 square feet are not eligible for exemptions.
         After the meeting, Council Chairman Steve Stenger said he would welcome any legislation on the issue from Dooley.
         ”This is an excellent first step,” Stenger said. He said he would consider removing all exemptions, even those for casinos. The casinos had exemptions for their gambling floors that were built in to the ban that was passed by 65 percent of the voters in 2009.
         ”All options should be on the table,” he said.
         At the council’s public forum, James Mays, owner of the Redbirds Sports Cafe in Hazelwood, urged officials to give the smoking ban time to work before changing it. Mays did not suggest the length of any delay. His business has a pending request for an exemption. Bill Hannegan, an activist opposing smoking bans, urged a six-month delay.
         Former Ballwin Alderman Jane Suozzi said her city had avoided problems with exemptions from a smoking ban because it had only one — for a Veterans of Foreign Wars hall.
         In Brentwood, Alderman Andrew Leahy said he would ask aldermen at their Feb. 7 meeting to grant an exemption to that city’s smoking ban to Goff Moll Post 101 of the American Legion, 2721 Collier Avenue. The post requested the exemption, Leahy said.

         Paul Hampel and Phil Sutin of the Post-Dispatch contributed to this report.

2011/01/25: Press releases from Rep. Oxford and MoGASP about Ms. Judd’s ADA complaint

State Representative Jeanette Mott Oxford, who has been very active on this issue in the House, started the media buzzing about the ADA complaint filed against the State Capitol in Jefferson City when she forwarded a letter prepared by Mr. Billy Williams for Ms. Rossie Judd yesterday.

Since then a lot has appeared in the media, some already noted on this blog. Immediately below is Rep. Oxford’s media alert and below that a Press Release distributed later by Missouri GASP on the same subject.

From: Jeanette Oxford
Sent: Tuesday, January 25, 2011 8:15 AM
To: Jeanette Oxford
Subject: citizen has filed ADA complaint about smoking in the Capitol Building

Members of the Capitol Media:

I have received the message below and these attachments indicating that Rossie Judd of Fenton, MO has filed an Americans with Disabilities Act complaint about tobacco smoke in the Capitol Building. In speaking with Billy Williams at 214-226-2117, I learned that, if the complaint is either not processed or denied, it will then be sent to the U.S. Department of Justice.

I do continue to believe that the Missouri Capitol Building should be 100% smokefree. The inconvenience of having to go outside this building to smoke is minimal if it can prevent an asthma attack or heart attack and possibly even save a life. It is also very important that we set a good example, as well as protect the health, of the thousands of school children who tour this building annually.

In the debate on House Rules on January 13, House members voted to end smoking in the members’ lounge area behind the chamber. The Rules do not affirmatively state that we may smoke in our offices, but some members have long asserted their right to do so. The amendment I offered sought to establish the House as 100% smokefree, and, if passed, I had hoped House leadership would then advocate the same policy in the Senate.

It was unfortunate that Majority Floor Leader Jones signaled that all GOP members were to vote no instead of allowing each member to vote his or her own conscience on this matter. I had received enough support from GOP members for the motion to have carried if it had not turned into a partisan vote. Perhaps that would not have happened if Rep. Jones had been in when Rep. Ellinger, Rep. May and I went to his office on Jan. 11. I believe Rep. Jones may have simply seen my amendment as part of the wrangling that the majority and minority do about the Rules when it was really a bi-partisan public health matter. I should have followed up with Rep. Jones to make sure he understood that distinction, but we juggle a lot of competing priorities as legislators, and I simply ran out of time to do so.

A previous ADA complaint resulted in guidance about where smoking may occur and where it may not, but much has been learned about the dangers of secondhand smoke that was not known when that agreement was reached(in 1999 I believe). When you add what we are also now learning about “thirdhand smoke” (chemical residue in carpeting, drapes, clothing, etc.), it is hard to justify allowing smoking in any workplace that is not truly private and used only by the smoker him/herself.

JMO

Jeanette Mott Oxford
State Representative, 59th MO House District
2910 Lemp, St. Louis, MO 63118
573-751-4567 (Jefferson City)
314-771-8882 (St. Louis)

Text of Missouri GASP’s Press Release:

FOR IMMEDIATE RELEASE

Please contact: Martin Pion, President, Missouri GASP [Group Against Smoking Pollution] Inc.
Tuesday, January 25, 2011 St. Louis, Missouri.
http://www.mogasp.wordpress.com

Other contact information:

Mr. Billy Williams 1-972-353-8764
Ms. Rossie Judd 1-636-575-4895

PRESS RELEASE: Ms. Rossie Judd files ADA complaint aimed at making Missouri House smoke-free;
Alleges present policy allowing smoking in legislator’s offices denies her access.

Following the failure of efforts via House Rules by Rep. Jeanette Mott Oxford to make the House side of the State Capitol smoke-free, an ADA complaint has just been filed with the entities controlling the House with the same objective.

The complaint was submitted on Monday, January 24, 2011, to Mr. Keith Sappington, ADA Coordinator for the House of Representatives, on behalf of Ms. Rossie Judd, an asthmatic and former assembly line employee at the Daimler-Chrysler minivan plant in Fenton. Copies were sent to Mr. D. Adam Crumbliss, Chief Clerk to the House, and Speaker Steven Tilley.

Judd succeeded in getting the Fenton plant to go entirely smoke-free in 2004 after pursuing discrimination complaints with federal agencies, assisted by Williams and Missouri GASP.

Since then Judd has been diagnosed as suffering from asthma, COPD (Chronic Obstructive Pulmonary Disease), chronic bronchitis, and chemical sensitivity and is now receiving Social Security disability.

This latest complaint against the Missouri State Capitol was filed on behalf of Judd by Mr. Billy Williams, in collaboration with Mr. Martin Pion.

Williams, a retired PanAm airline mechanic, is Executive Director of GASP of Texas. He maintains a website devoted to the issue of secondhand smoke and relevant ADA case law at http://www.gaspoftexas.com/.

Pion is president of Missouri GASP (Group Against Smoking Pollution), a St. Louis-based not-for-profit grass roots advocacy group in existence since 1984. He is now semi-retired and formerly a scientist working initially in the field of optical fibers and later at McDonnell Douglas Astronautics Co., in laser diode space communications.

The success in the Daimler-Chrysler minivan plant in Fenton came after battling one of the largest automakers in the U.S. and one of the most powerful unions, the UAW, which was fighting to maintain smoking. It led to both Judd and Missouri GASP receiving recognition from the Flight Attendant Medical Research Institute in Miami Beach, Florida, at its Third Annual Scientific Symposium in May, 2004.

Pion and Williams have collaborated for many years, filing ADA complaints on behalf of individuals suffering from breathing disabilities caused or exacerbated by exposure to secondhand tobacco smoke.

Lambert-St. Louis International Airport was the target of such a complaint, filed in 1994. Smoking was severely curtailed in 1997 when it was restricted to newly-opened separately ventilated smoking rooms. It became totally smoke-free on January 2nd, 2011, by St. Louis City ordinance.

Two similar ADA complaints have been filed against the State Capitol, both indirectly and directly by Missouri GASP, the second resulting in a February 5th, 1999, Memorandum of Agreement with the House, Senate, and Office of Administration, requiring that all public areas in the State Capitol be smoke-free but continuing to allow smoking in members’ personal offices. (Please see attachment.)

All other state owned and/or occupied office buildings are smoke-free. Legislators should be treated the same as everyone else.

Memo of Agreement with State Capitol, dated Feb 5 1999
Click image to enlarge

2011/1/24: ADA letter from breathing disabled Rossie Judd to Keith Sappington, House ADA Coordinator, claiming denial of access to Mo. Capitol

The following letter was sent via e-mail to Mr. Keith Sappington (e-mail: Keith.Sappington@house.mo.gov), ADA Coordinator, House of Representatives, on January 24, 2011. It laid out in detail the legal basis for the following claims by Ms. Rossie Judd (e-mail: jsnowdove@aol.com; ph: 636/575-4895) of Fenton, Missouri, who is breathing-disabled and highly smoke-sensitive. As a result Judd is on Social Security, and her disability is covered by the Americans with Disabilities Act (ADA). Here are the main points in her complaint:

* Denial of meaningful access for the breathing disabled to the House of Representatives
* Disparate impact discrimination against the breathing disabled by the House of Representatives
* Disparate treatment against the breathing disabled by the House of Representatives
* Failure of the House of Representatives to comply with the self‐evaluation requirements of 28 C.F.R. § 35.105(a)

The letter was prepared by Mr. Billy Williams (e-mail: Bjwtex@aol.com; ph: 972/353-8764), Executive Director, GASP of Texas, and the full text can be viewed by clicking on the pdf link below:
Judd_Sappington

The attachment referenced in the above letter – “Thomas E. Perez letter, dated September 02, 2010″ – may be viewed by clicking on the following pdf link:
DOJ_Perez_Sept 02_2010

The following addendum has been submitted by Mr. Williams to the above complaint to prevent a legislator from offering to meet in a smoke-free state office building instead of their own office in the State Capitol. Such an offer was made in the past to another asthmatic constituent, Ms. Vivian Dietemann of St. Louis City, and is not allowed under current law.

From: Billy Williams
Subject: Rossie Judd ADA Complaint
Date: January 27, 2011 9:03:35 AM CST
To: Keith Sappington e-mail: keith.sappington@house.mo.gov
Cc: Rep. Jeanette Mott Oxford, Rossie Judd, Linda Baker, Mike Talboy, Martin Pion, Steven Tilley

To: Keith Sappington
ADA Coordinator
House of Representatives
State of Missouri

VIA E-MAIL

Mr. Sappington:

Re: Unnecessary segregation of the breathing disabled by the House of Representatives in violation of Title II of the ADA.

Ms. Rossie Judd has authorized me to add another allegation to her ADA complaint against the Missouri House of Representatives.

This allegation alleges that the House policy of requiring the breathing disabled to meet with their representatives in any place other than the member’s offices is in violation of the U.S. Supreme Court decision in Olmstead v. L.C. Ex Rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176 (1999), which states:

“A public entity shall administer services . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” (unnecessary segregation of persons with disabilities constitutes a form of discrimination prohibited by the ADA and the integration regulation.). Regarding the States’ obligation to avoid unjustified isolation of individuals with disabilities, the Attorney General provided that States could resist modifications that ‘would fundamentally alter the nature of the service, program or activity.” 527 U.S. 596-97, 119 S.Ct. 2185. (citations omitted).

And again, Ms. Judd points out that it would not be a fundamental alteration of the nature of a service, program or activity to remove smoking, a public health hazard, from the State Capitol.

Respectfully submitted

Billy Williams
Executive Director
GASP of Texas
1419 Creekview Drive
Lewisville, TX 75067

2011/01/25 P-D: “Fenton woman files ADA complaint about smoking in Capitol”

Rossie Judd being interviewed by reporter Andy Banker, Fox 2 News, opposite the National Labor Relations Board in downtown St. Louis in June 2003. She had just filed unfair labor practice charges. prepared by MOGASP and Billy Williams, against her employer, Daimler-Chrysler, and the UAW.

Following the failure of the recent effort by MoGASP and others, especially Representative Jeanette Mott Oxford, an asthmatic, to make the House side of the State Capitol smoke-free, another tack is being tried: filing an Americans with Disabilities Act complaint.

Missouri GASP and Mr. Billy Williams of Texas last used the ADA to help Ms. Rossie Judd obtain a smoke-free workplace when she worked on the assembly line at the Daimler-Chrysler minivan plant in Fenton, Mo. The plant went totally smoke-free in 2004 after an intensive one year effort. The media, including St. Louis Post-Dispatch reporter Kim Bell, who wrote about it extensively, played a helpful role by publicizing this effort.

Awards being accepted at FAMRI in May 2004. (From L to R) Beth Kress holding Rossie Judd's award, Martin Pion, president of MoGASP, and Billy Williams

Missouri GASP and Ms. Judd were subsequently honored for their achievements by the Flight Attendants Medical Research Institute, Miami Beach, Fl., at FAMRI’s Third Annual Scientific Symposium in May, 2004.

Judd’s newest complaint has been filed with the entities controlling the House side of the State Capitol. Missouri GASP’s last effort to get the State Capitol smoke-free using the ADA resulted in a Memorandum of Agreement which made all public areas of the State Capitol smoke-free, including members’ secretarial offices, smoke-free, but exempted members’ personal offices.

The most important section in the Memo., reproduced in full below, is the third paragraph:

“By this memorandum the House, Senate and OA (Office of Administration) affirm the cooperative and uniform nature of those policies in ensuring that all public areas of the Capitol will be non-smoking areas. These areas include all hallways, rotundas, meeting rooms, chambers, restrooms, cafeteria, elevators and escalators. Additionally, all staff offices open to the public are designated as non-smoking.”

Memo of Agreement with State Capitol dated February 5, 1999
Click image above once to enlarge

Fenton woman files ADA complaint about smoking in Capitol

By TONY MESSENGER > tmessenger@post-dispatch.com > 573-635-6178 | Comments | Posted: Tuesday, January 25, 2011 10:11 am

JEFFERSON CITY • A Fenton woman has filed an Americans with Disability Act complaint about smoking in the Missouri Capitol after the House voted to allow members to keep lighting up in their offices.
         In her complaint, Rossie Judd alleges she is “being denied meaningful access to the House of Representatives as a result of its policy that allows members to smoke in their offices.”
         Judd also said the policy discriminates against the “breathing disabled.”
         Judd has chronic obstruction pulmunary disease, asthma and chronic bronchitis, making her disabled under the ADA, she says in her complaint, filed with the House’s ADA coordinator, Keith Sappington.
         Judd’s complaint was distributed today to reporters by state Rep. Jeanette Mott Oxford, D-St. Louis, who had sought to amend the House rules to ban smoking in representatives offices.
         ”I do continue to believe that the Missouri Capitol Building should be 100% smokefree. The inconvenience of having to go outside this building to smoke is minimal if it can prevent an asthma attack or heart attack and possibly even save a life. It is also very important that we set a good example, as well as protect the health, of the thousands of school children who tour this building annually,” she said in an email.
The ADA complaint could spur a federal response, depending on how the House deals with it, Oxford said in her e-mail to reporters.

2011/01/24 P-D: “Dooley calls for toughening up county smoking ban”

A long front-page story above the fold in today’s St. Louis Post-Dispatch focused on some of the anomalies in the newly effective St. Louis City and County smoke-free air laws, and some problems with enforcement. If County Executive Charley Dooley is serious about addressing the issues and county council members are supportive, this would be a good time to review the exemptions in the County ordinance which are creating headaches.

A uniform law was preferred by former County Councilwoman Barbara Fraser, but the first version she introduced, which had few exemptions, such as none for small bars, was rejected by the County Council. That’s when she introduced a watered down version to satisfy Councilman Steve Stegert’s demand to exempt the small bars in his district, casino gaming floors, and Lambert airport’s smoking rooms.

Those exemptions have created a clumsy bureaucratic mess and the sooner they’re removed the better for everyone, including employees still being subjected to secondhand tobacco smoke.

Remember: No one should have endure secondhand tobacco smoke in order to work.

TO REPORT A VIOLATION OF THE LAW, please click on this link:

http://www.stlouisco.com/doh/605/Complaint.html

Related Stories

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         Woman heading anti-smoking effort finds fault with County Council
         Information on smoking bans in St. Louis and St. Louis County
         Mo. House rejects ban on smoking Capitol offices

Dooley calls for toughening up county smoking ban

BY PAUL HAMPEL • phampel@post-dispatch.com > 314-727-6234 AND DAVID HUNN • dhunn@post-dispatch.com > 314-436-2239 | Comments (120 at 1:55 pm 1/24/2011) | Posted: Monday, January 24, 2011 7:00 am

JANUARY 22, 2011 - (left to right) Mindy McKinney from Pacific hangs out with friends including Laurie Sullentrup (center) and Laurie's husband Jim Sullentrup (right) from Union at Hot Shots Sports Bar & Grill Saturday afternoon in Fenton. The bar has been able to dodge the newly installed smoking ban because their food sales make up less than twenty five percent of the combined food and beverages.
         Post-Dispatch photo by Johnny Andrews

St. Louis County Executive Charlie A. Dooley has called the raft of smoking ban exemptions handed out to county establishments in recent weeks “unacceptable” and said he will meet soon with the County Council to try to change the situation.
“Something has gone astray,” Dooley said in an interview. “What the County Council had intended when they crafted the smoking ban legislation has produced some unintended consequences. The result we have right now — 110 exemptions — is simply unacceptable.”
         Both the county and the city of St. Louis began their bans on Jan. 2. In the city, officials have yet to grant an exemption as they wait for inspectors to get to each bar and check owners’ records. But in the meantime, some establishments in both areas — ranging from the Saratoga Lanes in Maplewood to the Missouri Athletic Club downtown — seem to be ignoring the ban.
         Dooley said he planned to meet with the council as early as Tuesday to find ways to strengthen the smoking ban in the county. When asked whether possible adjustments could include reversing all exemptions and implementing a complete ban, Dooley said, “Everything will be on the table.”
         He added, “The legislation that was passed in 2009 is obviously very flawed, and the responsible thing will be to fix it.”
         The county ban was passed by 65 percent of the voters in November 2009. In the city, the Board of Aldermen had approved a similar measure, contingent on county passage.
         If it chose, the County Council could change the ordinance on its own without submitting it to public vote again.
         In both the city and the county, establishments can continue to allow smoking if their revenue from food does not exceed 25 percent of their combined food-alcohol revenue.          The city has an added requirement: A bar must be no larger than 2,000 square feet.
         In crafting the legislation, County Council members said they wanted exemptions to protect small neighborhood bars whose owners feared a smoking ban would drive them out of business.
         But included among the 110 venues that have received exemptions in the county are larger establishments, including bars inside bowling alleys and restaurant-bars such as Hot Shots. The chain has nine locations in the area, including five in the county and one in the city. Each of the five county locations had annual combined food and beverage sales of over $1 million, but food sales in each accounted for just under 25 percent of the total.
         Dooley cited the Hot Shots exemptions as being among the “unintended consequences” of the smoking ban ordinance, which covers both municipalities and unincorporated areas.
         ”Big places like Hot Shots are not what the County Council had in mind for exemptions,” he said.
         Hot Shots owner Daniel Volmert said his business had played by the county’s rules.
         ”We followed the county’s criteria to the letter. We applied for the exemptions so we could be on a level playing field with other bars that got exemptions,” he said. “If they vote to remove my exemptions, it certainly will hurt my business.”
         Saratoga Lanes in Maplewood is among 32 county establishments that have exemptions pending. But last week, patrons freely lit up inside the bowling alley.
         County Counselor Patricia Redington said they are breaking the law. “There is no exemption-pending-exemption provision, so smoking is not permitted under the code,” she said.
         Saratoga Lanes management did not return calls for comment.
         The county’s Health Department is responsible for enforcing the ban. So far, however, the department has not issued citations.
         ”We’ve had about 75 complaints, but most of them have been regarding places that have the exemptions,” said spokesman Craig LeFebvre.
         He said smoking ban enforcement would be handled like restaurant inspections, in which first-time violators will have 10 days to conform before citations are issued.
         Penalties are the same in the county and the city: A smoker faces a fine of up to $50 for each occurrence, and an owner of an establishment faces a fine of up to $100 for the first violation, up to $200 for the second in a year and up to $500 for each additional violation in a year.
         On Saturday night, organizers of the Cigar Club Annual Smoker, held each January at the Ritz-Carlton Hotel in Clayton, made clear where they stood on the issue of smoking bans.
         ”The heat is off and the smoking is on!” a ring announcer bellowed Saturday evening to more than 100 formally dressed patrons who enjoyed pricey cigars and a night of boxing in the hotel ballroom.
         Clayton already had its own ban that predated the county’s. James Cole, director of food and beverage for the hotel, contended the event did not violate the ban.
         ”This is legal in the way we interpret the law,” Cole said. “This is a private event in an enclosed, private room for our guests.”
         Clayton’s law allows an exemption for private clubs, which it defines as nonprofit fraternal or social groups that restrict admission to members and their guests.
         Bill Hannegan, whose group Keep St. Louis Free has opposed smoking bans across the area, said the hotel’s decision and its allowing the group to meet in the ballroom represented a “very creative interpretation of the law.”
         He argued that it was proof of how different interpretations and inconsistent enforcement make smoking bans impractical.
         ”This just shows how the law doesn’t work,” Hannegan said.

NO CITY EXEMPTIONS

While bars in the county have been put on notice not to presume they are exempt pending official approval, the city has taken the opposite tack.
         As of late last week, the city had received 178 exemption applications from bars. So far, the city hasn’t approved any. But city health director Pam Walker said bars that think they’re exempt should act as if they are.
         In the meantime, Health Department inspectors are visiting each to ensure they’re no larger than the city law’s 2,000-square-foot limit. They’re also checking sales figures to make sure applicants are earning no more than 25 percent of their income from food.
         The city’s liquor license office fields five to 10 phone calls a day on the subject, staff said. And private contractors, paid to help businesses get licenses, say they’re swamped by owner requests to find some way to get an exemption.
         ”All of a sudden, they’re like, ‘Boy, I’d make more money letting people smoke than flipping hamburgers,’” said Joe Kelly, who has worked for more than 20 years to help businesses get city licenses.
         And many are puffing away as they work through the process.
         Nick’s Pub on Manchester Avenue, for instance, is too large to get an exemption, according to the city’s most recent measurements. But owner John McDonald said there’s no way he’s going smoke-free now. Instead, he said, he’ll try to remove some square footage in his west St. Louis bar.
         Milo’s Bocce Garden, a corner bar and restaurant on the Hill owned by city Alderman Joe Vollmer, was going to allow smoking. Then Vollmer realized the new law does not permit anyone under 21 inside smoking bars. He had to choose between smokers and families.

         ”People come in after Mass with their families!” Vollmer said.
         His website now announces that Milo’s is going smoke-free — but not until Feb. 7.
In downtown St. Louis, the Missouri Athletic Club is still hosting cigar smoking happy hours, ashtrays out on display.
         The Health Department visited the club early in January, Walker said, after getting some complaints. She said that a MAC manager openly admitted the club was letting patrons smoke but claimed he couldn’t change the situation without a decision by the board.
         Chris Lawhorn, president of the MAC, wouldn’t discuss the issue with the Post-Dispatch. The MAC, he said, is private.
         On Friday night, at least a half-dozen men stood around the club’s first floor bar, tumblers in one hand, cigars in the other.
         Walker said if the club doesn’t comply by Feb. 4, the city will begin to levy fines.
         ”They have to comply, like everybody else,” Walker said. “We have to be consistent. We have to be fair. And that means everybody has to comply.”

Steve Giegerich of the Post-Dispatch contributed to this report.

2011/01/19: Jeff City News Tribune Letters & Editorial plus Post-Dispatch Matson cartoon caption competition

The following Letter to the Editor, published in the Jefferson City News Tribune, was from Janet Wilson, M.Ed., MPA, formerly Chief, Health Promotion Unit, Missouri Department of Health and Senior Services.

It was accompanied the same day by a Jefferson City News Tribune editorial also in favor of a smoke-free State Capitol, reinforcing the support for this measure.

Legislators opposed to making the State Capitol smoke-free may think the matter is behind them now but that may well prove to be wishful thinking. The secondhand smoke isn’t going away and objections to it won’t either.

The St. Louis Post-Dispatch weekly cartoon caption competition took as its subject State Capitol smoking (see below). It attracted 361 submissions from readers, making it hard for the editors to pick a winner, who ended up (appropriately, perhaps) being Craig Kolb of Jefferson City (aka “Snowman,” who posted plenty of others). Some of the better ones I submitted on behalf of MoGASP are pasted below, following the cartoon.

R.J. Matson's St. Louis Post-Dispatch Punch Line Cartoon 011411. Captioned version published January 20, 2011

That’s the only place tobacco lobbyist John Britton can smoke, with Jefferson City going smoke-free.
I think we’ve found Jefferson City’s “Smoking Section.”
Smoking? Capitol!
I thought this was the People’s House. Turns out, it’s the Smoke House!
Looks like the tobacco lobbyists got here ahead of us!
I’ll join you in a moment. I just have to get my respirator.
I thought “smoke-filled rooms” were a thing of the past.
Hmm. Looks like they just make laws for the rest of us, just not for themselves.
Oops! I forgot to bring my gas mask!
I think they put the sign up just for us!
Secondhand smoke pollution? Looks like we won’t see much leadership on THAT issue!
I think the message is: “If you’re smoke-sensitive don’t bother coming in.”
Nobody ever said Missouri was a leader on smoke-free air.
I believe this is where Big Tobacco hangs out
Thank goodness the state motto, “The welfare of the people shall be the supreme law,” doesn’t apply to us.
I guess this is why it’s called the “Smoke Me” state.

Lawmakers set poor example by failing to make Capitol entirely smoke-free

Janet Wilson
Jefferson City
Jefferson City News Tribune
January 19, 2011

Dear Editor:
I was troubled that the Missouri House of Representatives defeated a resolution to make the state Capitol entirely smoke-free, including House members’ offices. It was troubling to hear one House member ask when attacks on personal liberties were going to stop.
The state Capitol and the offices therein are the property of the state of Missouri, not owned by individual members of the House. All other state office buildings have been smoke-free for many years where state employees are not allowed to smoke in their offices, or for that matter, in a designated smoking area.
Why should members of the House of Representative, also employees of the state, be allowed to smoke in their offices and expose their staff, colleagues, and importantly constituents to their tobacco smoke?
What kind of role modeling is this for the thousands of school children that visit the state Capitol every year?

———————————————————————

OUR OPINION
Jefferson City News Tribune
January 19, 2011

Lawmakers burn public with exemption

Smoking remains on the list of rules that apply to almost everyone except elected lawmakers.
         Most private and public employees — including state workers — must walk outdoors during breaks to smoke. The smoke break may be accompanied by rain, sleet, snow, rain or whatever inclement element may be in play that day.
         Employees in the Capitol may take advantage of an indoor, designated smoking area in the northeast portion of the basement garage.
         Senators and representatives, however, need not leave the cozy confines of their offices, where they determine the smoking policy.
         We find this arrangement inequitable.
         Both the Senate and House, to their credit, prohibit smoking in their respective chambers and galleries.
         House members recently voted to continue the exemption for their offices, a policy also shared by senators.
         We encourage reconsideration of this policy.
         The public justifiably is resentful when lawmakers — whether local, state or federal — enact or exempt themselves from policies that apply to the general public.
         Adding fuel to the rancor caused by this elitist attitude is that smoking has become a matter of public policy.
         To advance public health, governments have adopted smoking regulations and prohibitions.
         In the interest of equity, lawmakers deserve to follow the same rules they promulgate.
         We urge legislators to set an example. Eliminate smoking in the Capitol.

2011/01/18: Rep. Jeanette Oxford during debate on Jan. 13, 2011, to make Mo. House totally smoke-free

This story, by St. Louis Post-Dispatch Jefferson City Bureau Chief, Virginia Young, appeared last week, and highlighted some of the more absurd arguments to greet Rep. Jeanette Mott Oxford’s proposal to make the House side of the Missouri State Capitol smoke-free.

I’ve added a photo of Rep. Oxford, taken while she was at the microphone listening to comments from Rep. Parkinson which fit into the “silly” category.

Rep. Michael Brown, D-Kansas City, asked her how the rule would be enforced: Wouldn’t people just smoke in the bathroom?

Of course the answer is that some would, because no law is perfect, but that doesn’t invalidate the intent of the law.

If we were only going to approve laws likely to enjoy 100% compliance there would be virtually NO laws on the books, not even against murder!

Reporter Virginia Young notes it lost on a mostly party line vote of 113 to 45, but that 113 included ALL the House Republicans.

Rep. Jeanette Mott Oxford (D) at the microphone on the House floor during debate of her Amendment #5 to make the Missouri House smoke-free.
Tim Bommel, House Photographer

House votes to allow smoking in legislators’ offices

BY VIRGINIA YOUNG > vyoung@post-dispatch.com > 573-635-6178 | (22) Comments | Posted: Thursday, January 13, 2011 5:25 pm

JEFFERSON CITY — Republicans, who hold a commanding majority in the Missouri House, trounced a proposal Thursday that would have barred legislators from smoking in their Capitol offices.
         They agreed, however, to prohibit smoking in the members-only gallery at the rear of the House chamber.
         Smoking is already barred in areas of the Capitol controlled by the executive branch, as well as in committee rooms and other common areas. But both the House and Senate allow members to smoke in their offices.
         The request to bar smoking in House offices came from Rep. Jeanette Mott Oxford, D-St. Louis.
         Oxford, who has asthma, said many legislators’ offices share the same ventilation system, so it’s impossible to confine smoke to a single area.
         She said the House should consider the health of staff members and schoolchildren touring the building.
         ”As long as we allow smoking in this building, we’re denying access to some people” with asthma and other health conditions, she said.

Rep. Mark Parkinson (R)

But Rep. Mark Parkinson, R-St. Charles, said preventing legislators from smoking in their offices would put the Legislature on “a steep slippery slope dealing with our personal liberties and freedoms.”
         Noting that some people have reactions to nuts, Parkinson said: “Should we ban peanut consumption in our offices as well? What about secondhand peanut-eating? What about running with scissors?“

Rep. Tim Jones, Majority Floor Leader

         Oxford’s proposed amendment lost on a mostly party line vote, 113 to 45, after Majority Leader Tim Jones, R-Eureka, urged GOP members to reject it.
         Jones said members are often in the Capitol at least 12 hours a day and it would be difficult for smokers “to go anywhere else.”
         By making the rear gallery smoke-free, “we’ve made a huge step,” Jones said.