October 7, 1993

Mayor Freeman Bosley, Jr.,

City Hall Room 200
St. Louis, MO 63103

Dear Mayor Bosley,

I am writing to you in regards to The Rehabilitation Act of 1973, Section

504, the American With Disabilities Act of I090 and City Ordinance #62710 of
1992. I have a respiratory disability in the fact that I have Asthma and that
I have severe reactions to small amounts of cigarette smoke. The City of
St. Louis is discriminating against me, my son and all persons with a
respiratory disability by enacting and/or adhering to City Ordinance #62513
and the Missouri Clean Indoor Air Act.

As a member of this community and more importantly as a mother, I respectfully

request and demand -- on behalf of myself and my child who have medical
conditions (Asthma) making us especially sensitive to tobacco smoke -- that
the City of St. Louis provide us with protection from the now-proven hazards
of Environmental Tobacco Smoke (ETS) by prohibiting smoking in all public
places except in separate (and separately-ventilated) areas.

It has been clear for at least ten years that persons who have conditions
which make them especially sensitive to ETS as "handicapped persons," and are
entitled to legal protection for their health and physical comfort. See,
e.g., Vickers vs. The Veterans Administrations, 549 F,. Supp 85 (WD Wash.
1982); Brinson vs. Dept. of Environmental Regulation, (U.S. Dist Ct., Dist
Fls., Tallahassee Div. 1984) Pletten vs. Department of the Army, U.S. Merit
Systems Protection Board Nos. CH0752801009999, CH015202901 (1981); White
vs.
U.S. Postal Service, 2.8 TPLP 8.25, No. 01853426 (EEOC Appeal 1937); see also
Parodi vs. Merits Systems Protection Board, 690 F. 2d 731 (CA 9 1982), as
amended, 702 F. 2d 743 (1983) (smoke-sensitive employee "environmentally
disabled."

Asthma is a respiratory disability and as such my child and I have a Civil

right to be accommodated for our disability in all buildings and programs
available through the City of St. Louis and with respect to the uses, services
and enjoyment of all places of public accommodation.

Persons legally entitled to protection as handicapped include those adults who

have asthma, emphysema, bronchitis, cystic fibrosis, sinusitis allergies, and
many other conditions which are triggered or exacerbated by exposure to
tobacco smoke to the extent that at least one major activity (e.g., breathing
and working) area adversely affected. This category also includes those
individuals forced to use oxygen and/or respirator.

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Also included in this category and protected by law, is a much larger

number of children, including millions of infants and toddlers. The
Environmental Protection Agency (EPA) has reported that very young chil-
dren will suffer as many as one million asthmatic attacks, 300,000 unne-
essary respiratory infections, and tens of thousands of unnecessary
hospitalizations and inner ear infections as a result of exposure to ETC.

For all of the following reasons, it seems clear that the City of St.
Louis does not comply with the Federal Rehabilitation Act and Ameri-
cans With Disabilities Act with regard to protecting me, my son, or any
individual with a respiratory disability:

1. I do not have access to City Hall, the Civil Courts Building, the
Cervantes Convention Center, the Fox Theatre, Kiel Auditorium, the Arena,
the Lambert Airport facility, the Community Colleges, must grocery stores
movie theatres and restaurants without a drive through.

2. On January 1, 1993 at least one person apparently suffered an asthma

attack at the airport from exposure to ETS serious enough to require
police and paramedics to be called.

3. Many young children --including infants and toddlers-- are routinely

brought into areas of the airport, the Convention Center, the Arena, etc.
where smoking is permitted arid where they subjected to concentration
of ETS far higher that those upon which the EPA based its risk estimates.
These children are no less entitled to protection under the law simply
because the adults or teens who supervise them may have brought them into an
area where they came into contact with these toxic chemicals.

4. Should a child suffer an allergic or asthmatic attack, respiratory

disease, or middle ear infection while in or shortly after being in the
area where smoking is permitted, the City of St. Louis would be liable
in tort. In such an action, the negligence or "assumption of risk" by
the person bringing the child into that area (e.g., thee "other parent",
grandparent, teenager) is obviously not a defense to an action brought
on behalf of that child - provided that the City of St. Louis was on notice
of the danger. This letter and its attachments place you on notice of
precisely these dangers.

5. The law requires, as a minimum, that the City provide a reasonable

accommodation to persons especially susceptible to tobacco smoke. Since
the EPA and many other agencies (e.g., National Academy of Sciences, U.S.
Public Health Service, National Cancer Institute, World Health Organiza-
tion) have all reported that ETS causes lung cancer and lung cancer
deaths in nonsmokers, it is hard to argue that it is reasonable to re-
quire St. Louisians exercising their constitutional right to carry on
government or other business to be exposed to any level of this toxic mix
much less to be directly exposed by being forced to be near a smoker.

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6. Many of these same agencies have also reported that significant

amounts of the toxic chemicals in tobacco smoke drift, and are recircu-
lated even through the most advanced and sophisticated ventilating sys-
tems. They have therefore officially recommended that, if indoor smok-
ing is to be permitted at all, it must be restricted to separate rooms
which are separately ventilated, and not part of the general ventilating
system.

7. The ADA includes, as handicapped, any individual, who because of the

negative reaction of others is substantially limited in the major life
activity of working and that also qualifies me for protection under the
ADA. Which means that the negative reaction that smokers have to banning
smoking is displaced upon the individual with the respiratory disability
Act contributes to the attitudinal barriers which exist for those of us
with a Chronic Lung Disease.

It is within my rights to file a complaint of Civil Rights violation as

well as to bring legal action against the City of St. Louis if I am ex-
posed to Environmental Tobacco Smoke (ETS) whether it is in City Hall,
the Civil Courts Building, the Cervantes Convention Center, the Arena,
Kiel Auditorium, the Lambert Airport facility, etc. I might add that it
is also possible to file criminal charges of child abuse and/or child en-
dangerment when an asthmatic child is exposed to cigarette smoke. And
cigarette smokers can be criminally charged with assault when they
intentionally use that smoke to make someone else ill.

"Section 504 of the Rehabilitation Act of 1973, as amended

(29 U.S.C. 794), provides in part that:
No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination
under any program or activity which receives or benefits
from Federal financial assistance."

The City of St. Louis, the Missouri Botanical Garden, the Community
Colleges, Harris Stowe Teachers College, any business, public or private
which receives Federal financial assistance in the form of grant, loan,
or contracts is obligated to comply with Section 504 and the ADA. Other
businesses or organizations not receiving Federal financial assistance
are obligated to comply with the Americans With Disabilities Act.

The ADA provides in part:

"Section 1630.1 (b) and (c) Applicability and Construction.

Unless expressly stated otherwise, the standards applied in
the ADA are not intended to be lesser than the standards applied
under the Rehabilitation Act of 1973.
The ADA does not preempt any Federal law, or any state or
local law, that grants to individuals with disabilities protec
tion greater than or equivalent to that provided by the ADA.
This means that the existence of a lesser standard of protec-

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tion to individuals with disabilities under the ADA will not

provide a defense to failing to meet a higher standard under
another law.... On the other hand, the existence of a lesser
standard under another law will not provide a defense to failing
to meet a higher standard under the ADA...."

The Missouri Clean Air Act and City Ordinance #62523 which was recently
passed and requires a smoking section to be established is unconstitu-
tional and discriminatory and may not be used by organizations, busi-
nesses, state or local governments to discriminate against individuals
with a respiratory disability. And..."will not provide a defense to
failing to meet a higher standard under the ADA.."

Section 50A provides in part:

 Inconsistent State Laws. "Section 104.10
(a) The obligation to comply with this part is not obviated
or alleviated by the existence of any state or local law or other
requirement that, on the basis of handicap, imposes prohibitions
or limits upon the eligibility of qualified handicapped persons
to receive services or to Practice any occupation or profession.

and

"104.11 (a)(4) A recipient may not participate in a con-

tractual or other relationship that has the effect of subjecting
qualified handicapped applicants or employees to discrimination
prohibited by this subpart. The relationships referred to in
this subparagraph include relationships with employment and
referral agencies, with labor unions, with organizations provid-
ing or administering fringe benefits to employees of the recipi-
ent, and with organizations providing training and apprenticeship
programs."

and

"(c) A recipient's obligation to comply with this subpart

is not affected by any inconsistent terms of any collective
bargaining agreement to which it is a party."

For all these reasons, I respectfully request and demand that the City
of St. Louis provide me, my son and others with respiratory disabilities
who are sensitive to tobacco smoke with protection from the now-pro,)'en
hazards of Environmental Tobacco Smoke (ETS) as we are entitled to under
law by prohibiting smoking except in separate (and separately-ventilated
areas.

I am enclosing a copy of a report which shows that 861'0 of people with

asthma cite cigarette smoke as a major cause in provoking or aggravating
existing asthma conditions. Also enclosed is a recent article from the
Post that shows that asthma is a factor in morbidity.

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Last, but not least, I am enclosing a letter from a mother of child with
asthma. I have run into this same problem concerning myself and my son.
People seem to think that if you expose someone with asthma enough times
to cigarette smoke that eventually they will get used to it. On the con-
trary, I have found and read that just the opposite is true. Also, my
son and I have both experienced asthma attacks which were life threaten-
ing. These attacks were provoked by exposure to cigarette smoke (ETS).

I wish to see this issue resolved without having to take legal action but
I want you to know that I am more than willing to use legal action, if
that is necessary, to ensure the safety. of myself and my child and to a-
chieve the public accommodation to which we are entitled. My tolerance
concerning this issue is wearing very thin.

Yours Truly,
XX

XX
XX
ST. Louis, MO XX (b)(6)

cc: Janet Reno, Esq.

John F. Banzhaf III, Esq.
Jay Nixon, Esq.

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