). Two women who are hypersensitive to environmental tobacco smoke filed suit under the Americans with Disabilities Act (ADA), contending that they were effectively precluded from attending musical performances at the defendant’s establishment because smoking was permitted there. On three separate occasions, the plaintiff informed the Caravan of Dreams that they wanted to attend a particular show but, when they informed the defendant of their disability, the defendant “refused to prohibit smoking on her account, thus denying access to a disabled person to the performance . . . .” The complaint states that both plaintiffs “want to attend performances at the Caravan of Dreams, but they are unable to do so because of the Defendant’s policy of allowing smoking.” After a one-day, jury-waived trial, a federal judge ruled that Plaintiff Young, who is asthmatic, is not an individual with a disability under the ADA and that plaintiff Emery, who suffers from cystic fibrosis, is an individual with a disability under the ADA. The court also ruled that the complaint appears to come within the provisions of sec. 302(b)(2)(A)(ii), which provides that discrimination includes “a failure to make reasonable modifications in policies, practices, or procedures…. unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” The court ruled that the Defendant’s smoking policy is not an example of “criteria” that have the effect of discriminating on the basis of disability, since sec. 302(b)(1)(D) applies “only to those rules or policies that are or could be used to make a specific or conscious decision as to whether or not to permit an individual or individuals to have access to goods, services, facilities, privileges, advantages or accommodations which are being offered in this case by Defendant.”
The court also ruled that there was no discrimination because the “uncontroverted evidence is that the requested modification would endanger Defendant’s viability as a business, and such modifications are not required.” Plaintiffs’ appeal was denied in April 1996 at 85 F.3d 622, 1996 U.S. App. LEXIS 12800. See Kessler, B., “Woman Fighting for Breathing Space; Law EPA Report May Aid Effort to Make FW Nightclub Smoke-free,” Dallas Morning News, May 1, 1993, 1A; McMorris, F., “Disability Case Widens Fight Over Smoking,” Wall Street Journal, January 30, 1995, B1, B8; Lambert, W., “Smoking and Disabilities” Wall Street Journal, February 2, 1995, B7; Everbach, T., “Judge Denies Bid to Ban Smoking at Caravan of Dreams Nightclub,” Dallas Morning News, February 2, 1995; 23A, 25A.
879 F. Supp. 640, 4 AD Cases 409, (U.S.D.C. No. Dist. Tex.)(1995).