Activists wield Disabilities Act in fight for smoke-free casinos

The latest skirmish in the battle to ban smoking in Nevada casinos is emerging around a little-discussed area of law more commonly associated with wheelchair ramps and handicap-accessible restrooms.

Alongside requirements that public buildings and workplaces be accessible to people with visible handicaps, the 20-year-old Americans with Disabilities Act offers similar protection for people with breathing problems such as asthma and a list of medical conditions exacerbated by secondhand smoke, such as hypertension.

In the years before smoking bans became widespread, some courts sided with plaintiffs who sought smoke-free restaurants and workplaces because of breathing problems. Many cases were settled, with defendants going smoke-free in the wake of lawsuits or state and local laws banning smoking.

Such cases have not gone far in Nevada, where smoking is permitted by law in most gambling areas. Activists blame a lack of public awareness about ADA protections, which were strengthened last month by amendments legal experts say will cover millions more disabled Americans. The new rules specify that medical conditions that rarely flare up and are controlled by medication are covered if they otherwise hamper a person’s ability to breathe and move.

“Because there’s no safe level of secondhand smoke, a business can’t reasonably accommodate a disabled person with a breathing problem” unless it prohibits smoking, said Karen Blumenfeld, an attorney and executive director of the New Jersey-based Global Advisors on Smokefree Policy.

Anti-smoking activists gathering in Las Vegas next month for a strategy conference on making casinos smoke-free say they will assist casino workers and customers in filing ADA complaints over secondhand smoke.

But some legal experts say Blumenfeld is wrong to think the ADA requires smoking bans.

Rather, federal law allows venues to ban smoking on their own as it “does not preclude the prohibition of, or the imposition of restrictions on, smoking.”

Such bans have been subject to legal wrangling over the circumstances of an individual’s disability within the specific venue in question.

Federal law doesn’t require employers to change their business models, only that they make a reasonable effort to accommodate the disabled, said Brian Pedrow, a disabilities attorney with Ballard Spahr in Philadelphia. For casinos that have long catered to smokers, a smoking ban would likely be considered unreasonable, although moving a worker to a nonsmoking area would probably fit the “reasonable accommodation” requirement under federal law, said Pedrow, who has handled cases on behalf of individuals as well as employers but hasn’t represented casinos. That might be a challenge for unionized casinos as seniority rules prevent workers from leapfrogging others for preferred jobs, he said.

If no comparable job is available and an employee is no longer able to work because of a breathing problem, employers are entitled to terminate the employee, he said.

Still, tens of millions of Americans are entitled to some assistance they might not have received before the government lowered the disability standard, Pedrow said, adding that more than 70 million Americans over age 20 have hypertension.

Advocates worry that disabled workers who depend on health insurance won’t want to rock the boat by seeking help. Nor will they jump to pursue lawsuits against employers who resist making changes or bury employees in paperwork, they say. Moving employees around is a poor remedy because smoke circulates through nonsmoking zones in buildings where smoking is permitted.

The economic hardship defense commonly cited by employers doesn’t hold up against growing evidence that businesses have survived and even flourished after statewide smoking bans, Blumenfeld said.

Advocates also have harsh words for regulators, claiming federal authorities have abdicated their duty under the ADA to protect the health of American workers and the public.

The health benefits of smoking bans and an abundance of evidence on the harms of secondhand smoke make smoking bans the obvious — and only — option for venues like casinos, Blumenfeld said.

Although the law doesn’t impose smoking bans, it requires that venues offer equal access to all people, regardless of disability, added Stephanie Steinberg, who runs Smoke-Free Gaming.

Historically, authorities and advocates focused on disabilities that were easier to identify and accommodate, such as adding ramps for those who use wheelchairs, she said.

Next month’s gathering of anti-smoking activists comes during a meeting of the ADA National Network, a federally funded agency that educates employers and the public about the ADA. The group is hosting training sessions at its annual conference at Paris Las Vegas.

“It’s unconscionable that a federally sponsored ADA symposium is being held at a place that permits smoking,” Blumenfeld said. “They should walk the walk.”

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  1. Last week, I attended a three day conference of nurse educators at the Rio. There were 700 registrants from the Western region. The smoke level in the casino was so offensive that the Western Institute of Nursing's board of governors voted to never hold another meeting in a facility that allows smoking. How much longer can casinos afford to lose convention business?

  2. As a non-smoker who dislikes smoky atmospheres, I am torn about restricting the "rights" of adults, but I do have the option of not patronizing establishments that allow smokers to pollute the air. I don't patonize bars that allow smoking, even if they have a "smoke-free" walled-off restaurant because, in most cases, I have to walk through the smoke filled bar area to access the restaurant. Actually, the ADA should include smokers as they have an addiction as real as any ailment. These are very sick people, in more ways than one.

  3. Enough already. I'm a non smoker who knows how to avoid places I don't like and patronize the ones I do. Tobacco is a legal product; either criminalize tobacco or stop trying to control its use on private property. The government has zero business controlling legal activity on private property.

  4. They better be careful what they wish for here. Look at the states that have smoke free casinos and see just how much business they do and how many employees they still have left.

    This would be the nail in the coffin if they did it in Las Vegas.

    Each time another part of private business has been made "non smoking" we have seen a loss in business and less jobs. The Non Smokers don't keep their end up and support the businesses that they demand become non smoking.

    I don't smoke anymore but I do believe a business owner is the only one that should have the right to decide if a legal item is used within HIS business.

    You don't like it, don't go there. Really a very simple decision in life.

  5. "Because there's no safe level of secondhand smoke, a business can't reasonably accommodate a disabled person with a breathing problem" unless it prohibits smoking, said Karen Blumenfeld, an attorney and executive director of the New Jersey-based Global Advisors on Smokefree Policy."

    So the smoke nazis found another angle and attorneys are goading them into their arena for another expensive circus.

    It's still a completely colossal crock o' crap -- check out "The Second-Hand Smoke Charade" @ http://www.cato.org/pub_display.php?pub_...

    "And a woman is only a woman, but a good Cigar is a Smoke." -- Rudyard Kipling "The Betrothed"

  6. if you smoke your a scum bag whore

    fuc all the disabled bastrs too

  7. "Could we pass a law banning activists? From everything."

    antigov -- you would have to first ban the First Amendment and its state counterparts. Why would you want to do that?

    "Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them." -- Miranda v. Arizona, 384 U.S. 436, 491 (1966)

  8. I do not smoke cigs, but like a cigar now and then. I will not smoke one anywhere near people as I know most do not like it, I find a place by myself or refrain. If only cig smokers had the same courtesy, most are very arrogant and defensive. The casinos could put in more devices to remove smoke also, but that cost money to do and run them. They should ban smoking in 1/2 the casino and see what happens.

  9. Don't make me vote for Sharron Angle!!! I don't agree with the Tea Party, but I guess you need one extremist group to offset another.

  10. smokers need to be killed plain and simple

    fuc you people

  11. Let me start by asking this: Do you think for even one moment that the legislators who passed the ADA ever intended for it to be used in such an extreme way?

    Now while thinking about that, think about another set of disabled people: those with severe sun allergies or those who suffer from outright xeroderma pigmentosum. Outdoor dining and swimming facilities are neither inherent nor necessary to dining or swimming: both are carried out quite nicely indoors by those who wish who avoid malignant melanoma. Malignant melanoma you may recall is caused almost solely, and quite indisputably, by ultraviolet radiation exposure (i.e. sunlight) for which, just like all other Class A Carcinogens, "no safe level of exposure" has ever been proven.

    Sure, sunscreen and awnings can REDUCE exposure -- in much the same way that ventilation and air-filtration can reduce smoke exposure -- but they cannot ELIMINATE exposure. If the casinos are forced to ban smoking on the basis of the ADA, then, just to be consistent in fulfilling its role of protection, the ADA must also be used to ban outdoor daytime patio dining or swimming. The same argument holds and legally would have to be applied.

    So does it make sense to ban outdoor patios and swimming pools because of the problems experienced by a very small fraction of the population or the very low risks involved when those problems and risks can easily be avoided through choice? And, as with a smoking ban, "Do you think for even one moment that the legislators who passed the ADA ever intended for it to be used in such an extreme way?"

    Michael J. McFadden
    Author of "Dissecting Antismokers' Brains"

  12. If your're going to smoke let me suggest POT. Cigarettes are much more dangerous and the Cheap ones most Las Vegans smoke are disgusting. There are many nice Cigars, Unfortunately again the Locals have no taste or pocketbook for a quality product. If you hate smoke period, avoid all "Locals" Casinos and head to the newest ones on the strip with the highest ceilings and best ventilation systems. Also include the Luxor and one of The Best Ventilation Systems.

  13. "Access" is the key word in the Disabilities Act.

    If you don't want to breath smoke, don't visit places where smokers smoke. This is not intended to offend non-smokers, or people with breathing disabilities, but it makes sense - ESPECIALLY if someone DOES HAVE breathing problems.

    I am a non-smoker, and will leave any establishment where people are smoking - immediately, or sooner. If it is legal to smoke, so be it. But I do not have to stick around. I can find another venue that offers what I want in a non-smoking environment.

    In the State of Arizona, they have banned ALL SMOKING in ALL restaurants in the entire state. But in the casinos (operated on reservations by Indians), people can still smoke.

    Some Indian casinos in Arizona have designated (with a sign or a seperate room area) part of their casino as a non-smoking area. I guess they think this will be a smoke-free area. Are you kidding me? AIR MOVES!

    There are a lot of casinos in Las Vegas that do not reek of smoke. I go to those casinos. The ADA ACCESS law requires casinos (etc.) be accessable to anyone. But, I do not think the government should tell a business how to operate itself. Let the market do that. If enough people do not go to smoke-filled casinos, they will, eventually, change their policies.

    Customer satisfaction is a powerful tool.

  14. Socratic, if indeed "The ADA ACCESS law requires casinos (etc.) be accessable to anyone." then they would clearly have to do something about the flashing lights and sounds from all the machines that can trigger epileptic attacks in sensitive people.

    In addition, they should be forced to adjust their payoff methods so that the machines can only pay off in very small multiples since the strain of hitting a larger jackpot could bring on a heart attack in those with advanced coronary disease. And, from the other direction, the stress of extreme losses could do the same, so using the electronic cards that players now have the casinos could adjust the machiness to ensure that no one loses heavily either.

    See, with just a little thought and accommodation the casino experience can be friendlier for EVERYONE! A quiet, pleasant, relaxing and healthy time for all. It's a win-win-win situation.... as the Antismokers like to say...

    - MJM