Three asthmatic adults sued Red Lobster and Ruby Tuesday restaurants under the Americans With Disabilities Act (ADA).  The plaintiffs allege that they attempted to patronize the defendants’ restaurants but were forced to leave because of the tobacco smoke there.  The plaintiffs further state that the defendants’ “failure to establish a policy prohibiting smoking in their restaurants throughout the state discriminates against the Plaintiffs on the basis of their disability in their use and enjoyment of” the restaurants.  See Shane, S., “3 Women With Asthma Sue to Ban Smoking at Two Chain Restaurants,” Baltimore Sun, February 5, 1998, 4B; Ackers, M.E., “Suit Seeks to Ban Restaurant Smoking,” The Capital (Annapolis, MD), February 5, 1998, B3; and Castaneda, R., “Women Sue Restaurants Over Smoke; Discrimination Alleged Against Asthmatics,” Washington Post, February 19, 1998, M1.  The case was later removed to federal court.

Montgomery County (Md.) Circuit Ct., No. 179593 (1997).

The Defendants moved for dismissal of the case, claiming that the Plaintiffs had failed to exhaust state and local administrative procedures and that the Plaintiffs are not “disabled” within the meaning of the ADA.  On March 1, 1999, the U.S. District Court (Chasanow, J.), denied the Defendants’ motion to dismiss in Ellender v. Edwards, et al. v. GDRI, Inc., et al., Civil Action No. DKC-97-4327 (U.S.D.C., D. Md.).  The Court rejected the Defendants’ contention that physical impairments of an intermittent and transitory nature do not qualify as a disability under the ADA.  “Plaintiffs claim that the tobacco smoke in Defendants’ restaurants interferes so seriously with their ability to breathe that they cannot remain on the premises.”  The Court ruled that the claim “adequately alleges a substantial limitation on the major life activity of breathing.”  After noting that Title III of the ADA was enacted to facilitate disabled individuals’ access to places of public accommodation, the Court concluded: “Just as a staircase denies access to someone in a wheelchair, tobacco smoke prevents Plaintiffs from dining at Defendants’ restaurants.  Therefore, Plaintiffs have adequately alleged that they are disabled within the meaning of the ADA and that their disability bars them from defendants’ restaurants.”  See Weir, K., “Eatery Smoking Lawsuit Still Alive,” The Capital (Annapolis, MD), March 6, 1999, A9.