# 118


II-3.6000
III-4.2000                              January 11, 1994


DJ 171-73-0






Ms. Patricia L. Young
4910 W. Hanover Street
Dallas, Texas  75209-3216

Dear Ms. Young:

     This is in response to your letter to this office regarding
the ratification of House Bill 957 by the General Assembly of
North Carolina.

     The Americans with Disabilities Act (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
determination by the Department of Justice of your rights or
responsibilities under the ADA and does not constitute a binding
determination by the Department of Justice.

     In considering the reach of the ADA, the Department of
Justice has declined to state categorically that allergy or
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 allergies or
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 allergies or sensitivity to smoke are
disabilities 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.  In that regard, it is important to note that even
though section 501(b) of the statute merely states that the
prohibition of, or the imposition 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.

     Because the ADA does not mandate restrictions on smoking,
the North Carolina bill about which you are complaining does not,
in itself, violate the ADA.  However, if the effect of the law is
to create barriers to access for a particular individual who is
substantially impaired because of his or her sensitivity to
cigarette smoke, then there may be a violation of the ADA as
regards that individual.  For instance, it may be necessary to
modify the policy of allowing smoking in a designated smoking
area if it affects a particular disabled individual. 

     If you believe that you are disabled as defined under the
ADA and you can identify a particular State or local government
facility in which you are denied access because of the presence
of smoke, you may either file a private suit in Federal court or
send a complaint to this office for investigation.

     I hope this information has been helpful to you.

                            Sincerely,




                        Stewart B. Oneglia
                              Chief
                 Coordination and Review Section
                      Civil Rights Division

Enclosure