1-21-94



                                                      FEB 14 1994
  XX
(b)(6)

XX
Princeton, Texas  XX

Dear  XX


     This is in response to your letter to the Civil Rights
Division regarding respiratory disabilities and the Americans
with Disabilities Act (ADA).

     The ADA authorizes the Department of Justice to provide
technical assistance to entities that are subject to the Act.
This letter provides informal guidance to assist you in
understanding how the ADA may apply to you. However, this
technical assistance does not constitute a legal interpretation
of the statute, and it is not binding on the Department.

    In publishing regulations to implement the ADA, the
Department of Justice has declined to state categorically that
sensitivity to cigarette smoke should be recognized as a
disability because, in order to be viewed as a disability under
the ADA, an impairment must substantially limit one or more major
life activities. An individual's respiratory or neurological
functioning may be so severely affected by sensitivity to
cigarette smoke that he or she will be considered disabled. Such
an individual would be entitled to all of the protections
afforded by the ADA. In other cases, however, an individual's
sensitivity to smoke or other environmental elements will not
constitute a disability. If, for instance, an individual's major
life activity of breathing is somewhat, but not substantially,
impaired, the individual is not disabled and is not entitled to
the protections of the statute. Thus, the determination as to
whether sensitivity to smoke is a disability covered by the
regulation must be made using the same case-by-case analysis that
is applied to all other physical or mental impairments.  (See the
enclosed title III regulation at page 35549.)

     Because of the case-by-case nature of the determination, the
Department of Justice ADA regulations do not mandate restrictions
on smoking. It is important to note that section 501(b) of the
statute merely states that the prohibition of, or the imposition

Records, Chrono, Wadatch, Blizard, FOIA, Friedlander
\udd\blizard\adaltrs\  XX
                     (b)(6)



01-02927
                              - 2 -

of restrictions on, smoking in places of public accommodation is
not precluded by the ADA. The statute does not mandate
imposition of any restrictions. Furthermore, there is currently
no Federal statute that absolutely bans smoking in public
buildings.

     An individual who has a disability (as defined under the
ADA) and who is excluded from specific facilities because of the
presence of smoke, may either file a private suit in Federal
court or send a complaint to the Department of Justice for
investigation. Complaints against State or local government
facilities may be sent to the:

               Coordination and Review section
               Civil Rights Division
               U.S. Department of Justice
               P.O. Box 66118
               Washington, DC 20035-6118

Complaints against privately owned places of public accommodation
should be sent to this Section at the address listed above.

     I hope this information is helpful to you.
 
                                      Sincerely,



                                     John L. Wodatch
                                         Chief
                                  Public Access Section


Enclosure









01-02928