BEFORE THE
DEPARTMENT OF TRANSPORTATION
WASHINGTON, D.C.
________________________
| GASP of Miami, Inc. | | ) | |
| | Billy J. Williams | | ) |
| and | ) |
| | Patricia L. Young | | ) |
| | | | ) |
| v. | ) |
| | | | ) |
| | City of Atlanta, Georgia | | ) |
| | _______________________ | | ) | |
| | |
PETITION TO COMPEL THE CITY OF ATLANTA,
GEORGIA, TO PERFORM A SELF-EVALUATION OF ITS
SERVICES, PRACTICES AND PROCEDURES, AND THE
EFFECTS THEREOF, ON PERSONS WHOSE DISABILITIES
ARE CAUSED OR EXACERBATED BY ENVIRONMENTAL
TOBACCO SMOKE AT THE ATLANTA/HARTSFIELD INTERNATIONAL AIRPORT IN
ACCORDANCE
WITH 28 C.F.R. § 35.105 AND 49 C.F.R. § 27.11(c)(2)(v).
Communications with respect to this document should be addressed to:
| Billy J. Williams | Rita Zemlock
| Vice-President | President
| GASP of Miami | GASP of Miami
| 1419 Creekview Drive | P.O. Box 80-0436
| Lewisville, Texas 75067 | Aventura, Florida 33280-0436
| |
| Patricia L. Young |
| 4910 W. Hanover Avenue |
| Dallas, Texas 75209 | | | | | | | | | |
March 13, 2001
The City of Atlanta, Georgia (City of Atlanta), has failed to perform a self-evaluation of its services, practices and procedures, and the effects thereof, on persons whose disabilities are caused or exacerbated by environmental tobacco smoke in violation of 28 C.F.R § 35.105 of the Americans with Disabilities Act (ADA). Furthermore, the City of Atlanta has failed to establish a system for periodically reviewing and updating the required self-evaluation in violation of 49 C.F.R. § 27.11(c)(2)(v) of the Rehabilitation Act of 1973 (Rehabilitation Act).
The U.S. District Court for the Western District of Arkansas has held that a plaintiff may use evidence of failure to comply with the ADA's self-evaluation requirements to buttress a claim of disability discrimination. See Mathews v. Jefferson, 29 F.Supp.2d 525, 540 (W.D.Ark. 1998).
The failure of the City of Atlanta to perform its required self-evaluations of its services, practices and procedures, and the effects thereof, on persons whose disabilities are caused or exacerbated by environmental tobacco smoke is part of the City of Atlanta's pattern of discrimination against persons whose disabilities are caused or exacerbated by environmental tobacco smoke because of the effects of their disabilities on smokers.
The U.S. Supreme Court has held that Congress' desire to prohibit discrimination based on the effects a person's disability may have on others was evident from the inception of the Rehabilitation Act. See School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 282, note 9, 107 S.Ct. 1123, 1128, note 9 (1987).
Also, under the Rehabilitation Act, the U.S. Supreme Court has held that persons with disabilities must be provided with meaningful access to a federal fund recipient's services, programs and benefits. See Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720 (1985). The federal courts that have ruled on the issue have held that meaningful access is also required under the ADA. See DeBord v. Board of Education of the Ferguson-Florissant School District, 126 F.3d 1102, 1106 (8th Cir. 1997), cert. denied 118 S.Ct. 1514; Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996); Helen L. v. DiDario, 46 F.3d 325, 335 (3rd Cir. 1995), cert. denied 116 S.Ct. 64; Heather K by Anita K v. City of Mallard, Iowa, 946 F.Supp. 1373, 1386 (N.D.Iowa 1996); Marisol A. by Next Friend Forbes v. Giuliani, 929 F.Supp.662, 685 (S.D.N.Y. 1996).
GASP of Miami is an organization with members who are persons whose disabilities are caused or exacerbated by environmental tobacco smoke. Both Billy J. Williams (Petitioner Williams) and Patricia L. Young (Petitioner Young) are members of GASP of Miami. Therefore, GASP of Miami has standing to make this complaint against the City of Atlanta. See Paralyzed Veterans v. Ellerbe Becket Architects, 950 F.Supp. 389 (D.D.C. 1996).
Petitioner Williams has a twenty-seven year history of hypersensitivity to environmental tobacco, which substantially limits his ability to breathe, and causes him to suffer severe allergic reactions. Moreover, he was determined to be a person with a handicap under Section 503 of the Rehabilitation Act as a result of his hypersensitivity to environmental tobacco. This determination was made by the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), in 1983. A copy of this determination is attached. Furthermore, Pan American World Airways, Inc., accepted an environmental tobacco smoke injury as a worker's compensation injury on September 9, 1988. A copy of this determination is attached.
A letter, dated October 10, 1983, and signed by Dr. Charles F. Tate, Jr. is attached. This letter clearly states that Petitioner Williams suffers from asthmatic bronchitis and that he suffers severe adverse reactions to tobacco smoke.
A letter, dated April 3, 1989, and signed by Dr. Robert S. Hand is attached. This letter clearly states that Petitioner Williams is hypersensitive to tobacco smoke and that he suffers severe allergic reactions. A letter, dated September 9, 1999, and signed by Dr. Jack Wright is attached. This letter clearly states that Petitioner Williams has a lung condition, asthma, and that he should avoid all sources of smoke. Finally, two doctors notes, signed by Dr. Jose Bocles, and copied on the same page are attached. One note was signed on January 3, 1973 and the other on December 23, 1981. Both doctor's notes state that Petitioner Williams is allergic to tobacco smoke.
Therefore, Petitioner Williams is a person with a disability as a result of a history or record of impairment that has been documented since January 3, 1973.
Petitioner Young has been determined to be a person with a disability as a result of her hypersensitivity to environmental tobacco smoke in a dual-filed complaint under Section 503 of the Rehabilitation Act and Title I of the ADA. This determination was made by the OFCCP Dallas Region Office on May 31, 1994. A copy of this determination is attached.
Petitioner Williams arrived at the Atlanta/Hartsfield International Airport (Atlanta/Hartsfield Airport) on Delta Air Lines (Delta) flight DL 480 and departed on Delta flight DL 1420 on December 7, 2000.
Both the arrival and departure gates for Petitioner Williams flights were across from smoking areas that caused environmental tobacco smoke to fill the concourses and gate areas denying Petitioner Williams meaningful access to theCity of Atlanta's facilities, services and programs at the Atlanta/Hartsfield Airport.
Petitioner Williams was aware that a Budweiser Brewhouse & Smoking Lounge restaurant at another airport had claimed that its facilities were so well ventilated that a non-smoker could use its non-smoking area with absolutely no adverse reactions. Therefore, Petitioner visited the Budweiser Brewhouse & Smoking Lounge restaurant at the Atlanta/Hartsfield Airport. Petitioner Williams went up the escalator and was unable to enter the restaurant because of the [toxic] environmental tobacco smoke coming out the restaurant door.
As the landlord at Atlanta/Hartsfield Airport, the City of Atlanta cannot contract away its responsibilities to airport users under Title II of the ADA. See Botosan v. Paul McNally Realty, 216 F.3d 827, 832-33 (9th Cir. 2000). A federal court has held that a restaurant is a primary function of an airport and that it must be accessible to persons with disabilities. See Coalition of Montanans Concerned with Disabilities, 957 F.Supp. 1166, 1171 (D.Mont. 1997). Therefore, the City of Atlanta has breached its duty not discriminate against persons with disabilities through contractual arrangements with the Budweiser Brewhouse & Smoking Lounge in violation of 28 C.F.R. § 35.130(b).
Petitioner Young is a frequent flyer between DFW Airport in Texas and the Miami International Airport in Florida. Petitioner Young is unable to travel on Delta because of the environmental tobacco smoke at the Atlanta/Hartsfield Airport, and this limits her choice of airlines as well as airports.
Petitioner Young has "actual notice" that the City of Atlanta is not in compliance with the ADA at the Atlanta/Hartsfield Airport through conversations with Petitioner Williams and others. Therefore, Petitioner Young is not required to have entered the facilities at Atlanta/Hartsfield in order to have standing to make this complaint. See Schonfeld v. City of Carlsbad, 978 F.Supp. 1329, 1332 (S.D.Cal. 1997), affirmed 172 F.3d 876; Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1081 (D.Hawaii 2000). The U.S. Court of Appeals for the Second Circuit has held that Congress did not intend to isolate the effects of smoking from the protections of the ADA. See Staron v. McDonald's Corp., 51 F.3d 353, 357 (1995).
Therefore, the City of Atlanta's smoking policy and its effect on persons whose disabilities are caused or exacerbated by environmental tobacco smoke is subject to the same self-evaluation requirements at the Atlanta/Hartsfield Airport as any other barrier to meaningful access for persons with disabilities. Moreover, the policy of the ADA requires the City of Atlanta to be in compliance with all of the ADA regulations. See Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1082 (D.Hawaii 2000).
PRAYER FOR RELIEF
Petitioners pray that the Department of Transportation will order the City of Atlanta to perform a lawful self-evaluation of its services, policies and practices, and the effects therefore, on persons whose disabilities are caused or exacerbated by environmental tobacco smoke in accordance with 28 C.F.R. § 35.105 and 49 C.F.R. § 27.11(c)(2)(v).
Respectfully submitted,
____________________________________
Billy J. Williams
Individually and as Vice-President,
GASP of Miami
____________________________________
Patricia L. Young
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the foregoing Petition to be served on the following person this 13th day of March, 2001 by certified mail # 7000 0600 0027 4988 3862.
Mayor William Campbell
City of Atlanta
55 Trinity Avenue, S.W. Suite 2400
Atlanta, Georgia 30335
______________________________
Billy J. Williams
|
Cases Involving Smoking,