S1()-I()()226-()5S 

Mrs. Rossie Jucld 

1394RobindaleDr. 

Fenton MO.63026 

July 6,2009 

J. Michael Kelleher 

Special Assistant to the President and 

Director of Presidential Conespondence 

The White House ' 

1600 Pennsylvania Ave., NW 

Washington, DC 20500 

Dear Mr. Kelleher: 

Re: Inqmry to the U.S. Department of Transportation regardmg Docket DOT-OST-2009-

0126 

I request that you submit my comments to the U.S. Department of Transportation (DOT) 

and that you request that the DOT include my comments in its review of Docket DOTOST.2009-0126. 

Docket DOT-OST'2009-0126 is a disability discrimination complaint that was filed 

against six air carriers at the Hartsfield-Jackson Atlanta International Airport by Billy 

Williams, Diana Woodbury, and Patricia L. Young. 

I believe that the court decisions cited below are applicable to the 

^^liams/Woodbury/Young complaint and that the DOT should make its decision in 

accordance with these court decisions. 

PUBLIC ACCOMMODATIONS CAIWOT BE BIFURCATED 

Under Title in of the Americans with Disabilities Act (ADA), in PGA Tour, Inc. v. 

Martin, the U.S. Supreme Court held that: 

Our conclusion is consistent with case law in the analogous context of 

Tide n of the Civil Rights Act of 1964. (citations omitted) In Daniel 

V. Paul, 395 U.S. 298,306, 89 S.Ct. 1697,23 L.Ed.2d 318 (1969), 

applying Title n to the Lake Nixon Club in Little Rock, Arkansas, we 

held that the definition of a "place of exhibition or entertairunent" as a 

public accommodation, covered participants "in some sport or activity" as 

well as spectators or listeners." (emphasis added). 

532 U.S. 681. 

In Daniel v. Paul, the U.S. Supreme Court held that: 
SI()-IO()226-()5K 

The snack bar's status as a covered establisliment automaticatly brings the 

entire Lake Nison facility within tlie ambit of Title II. (emphasis added). 

395 U.S. 305; 

United States v. Lansdowne Swim Club, 713 F.Supp. 713, 791 (E.D.Pa, 

1989). See slso Martin v. PGA Tour, Inc., 984 F.Supp. 1320,1326-27 

(D.Ore. 1998) (The operator of a public accommodation could not "create 

private enclaves hi the 

facility... and thus relegate the ADA to hop-scotch areas."), afOrmed, 

204 F,3d 994,997 (9th Cir. 2000); DOJ amicus curiae brief m Martin v. 

PGA Tour. Inc., No. 98-35309 (9th Cir. 2000); PGA Tour, Inc. v. Martin, 

532 U.S 661, 670,121 S.Ct. 1879 (2001). 

Therefore, a public accommodation cannot have enclaves tiiat are smoking areas within 

the public accommodation under Daniel v. Paul and PGA Tour, Inc. v. Martin. 

SMOKING POLICIES AND SMOKING BANS UNDER THE ADA 

Under Title HI of the ADA, in PGA Tow. Inc. v. Martin, the U.S. Supreme Court held 

that: 

As previously stated, the ADA was enacted to eliminate discrimination 

against "individuals" with disabilities, 42 U.S.C. § 12101(b)(1), and to 

that end Title III of the Act requires witiiout exception that any "policies, 

practices, or procedures" of a public accommodation be reasonably 

modified for disabled '^individuals" as necessary to afford access uidess 

doing so would fundamentally alter what is offered, (emphasis added). 532 

U.S. 688. 

Obviously, "requires without exception" includes smoking policies and "as necessary" 

includes smoking bans. 

Furthermore, under the ADA, in U.S. Airways, Inc. v. Barnett, the U.S. Supreme Court 

held that: 

An ineffective "modification" or "adjustment" will not accommodate a 

disabled uidividual's limitations, (emphasis in original). 535 U.S. 400. 

Therefore, in accordance with PGA Tour, Inc. v. Martin and U.S. Airways, Inc. v. Barnett, 

the DOT cannot interpret the Air Carrier Access Act (ACAA) or the ADA as exempting 

smoking policies and smoking bans under either the ACAA or the ADA. 

DEFERENCE TO PUBLIC HEALTH OFFICIALS 
SI()-1()0226-()5,S 

hi School Board ofNassau Coimiy, Florida v. Arline, the U.S. Supreme Courl 

held that: 

. . . courts normally should defer to the reasonable judgments of public 

health officials. 480 U.S. 288. 

In Bragdon v. Abbott, the U.S. Supreme Court held that: 

In accessmg the reasonableness of petitioner's actions, the views of public 

health authorities, such as the U.S. Public Health Service, CDC, and the 

National Institutes of Health, are of special weight and authority. 524 U.S. 

650. 

Therefore, in accordance with School Board ofNassau County, Florida v. Arline and 

Bragdon v. Abbott, the DOT should defer to the reasonable judgments of public health 

officials with regard to second hand tobacco smoke when interpreting or applying the 

ACAA and the ADA. 

EFFECTS OF DISABILITIES ON OTHERS 

In School Board ofNassau County, Florida v. Arline. the U.S. Supreme Court 

held that: 

Congress' desure to prohibit discrimination based on the effects a person's 

handicap may have on others was evident from the inception of the 

[Rehabilitation] Act 480 U.S. 282 n.9. 

Therefore, under School Board ofNassau Cotmty. Florida v. Arline, the DOT carmot 

permit the breathing disabled to be discriminated against because of the effects of their 

disabilities on smokers or air carriers or ^rport operators imder either the ACAA or the 

ADA. 

ARCmTECTURAL BARRIERS REGULATIONS 

The U.S. Supreme Court interpreted the ADA Title II architectural barrier regulations in 

Tennessee v. Lane. 

The Supreme Court held that: 

Congress required the States to take reasonable measures to remove 

architectural and other barriers to accessibility. 42 USC. § 12131(2)... As 

Title U's implementing regulations make clear, the reasonable 

modification requirement can be satisfied m a number of ways. In the case 

of facilities built or altered after 1992, the regulations require compliance 
S1()-I()()226-()5S 

with specific arcliitectural slandaids. 28 C.F.R. § 35.151 (2003). But in the 

case of older facilities, for which structwal change is likely to be more 

difficuh, a public entity can comply with Title II by adoptmg a variety of 

less costly measures, including relocating services to alternative, 

accessible sites and assigning aides to assist persons with disabilities in 

accessing services. § 35.150(b)(1). Only if these measures are ineffective 

in achievmg accessibility is the public entity required to make reasonable 

structwal changes. 541 U.S. 531-532. See also Kinney v. Yerusalim, 812 

F.Supp. 547 (E.D.Pa. 1993), affirmed 9 Fed.3d 1067 (3rd Cir. 1993). 

Therefore, in accordance with Tennessee v. Lane, the DOT cannot apply 28 C.F.R. § 

35.150, or any other architectural barriers regulation, to smoking policies in order to 

exempt smoking policies firom the fimdamental alteration test required by PGA Tour, Inc. 

V. Martin, 532 U.S. 688. 

MEANINGFUL ACCESS 

]n Alexander v. Choate, imder Section 504 of the Rehabilitation act of 1973, the U.S. 

Supreme Court held that: 

The balance struck in [Southeastern Community College v.] Davis requures 

that an otherwise qualified handicapped individual must be provided with 

meaningflil access to the benefit that the grantee offers. The benefit itself, 

of course, cannot be 

defined in a way that effectively denies otherwise qualified handicapped 

individuals the meaningfiil access to which ihey are entitled. 469 U.S. at 

301. 

Therefore, undet Alexander v. Choate, the DOT camiot interpret either the ACAA or the 

ADA in such a manner that the breathing disabled are denied meaningful access to 

airports because they mxist endure second hand tobacco smoke, a public health hazard, in 

order to access the airports. 

DISPARATE TREATMENT/DISPARATE IMPACT DISCRIMINATION 

The U.S. Supreme Court has held that both disparate treatment and disparate impact 

claims are cognizable under the Rehabilitation Act and the ADA. Alexander v. Choate (§ 

504 of the Rehabilitation Act); Raytheon v. Hernandez (Title I of the ADA); Olmsteadv. 

L.C. by Zimring (Title D of the ADA); PGA Tour, Inc. v. Martin (Tide m of the ADA). 

It is well-settled by public health authorities that second hand tobacco has a disparate 

impact on persons with breathing disabilities. 

Therefore, in accordance with. Alexander v. Choate; Raytheon v. Hernandez; Olmstead v. 

L.C. by Zimring; and PGA Tow; Inc. v. Martin, the DOT is required to prohibit second 
S1()-1()()226-()3S 

hand tobacco smoke inside airport facilities. 

IN CONCLUSION 

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the U.S. Supreme 

Court has held that: 

The judiciary is the final authority on issues of statutory construction and masX 

reject administrative constructions which are contrary to clear congressional 

intent 467 U.S. 843 n.9. 

Therefore, the DOT is requked to reject all administrative constructions that have held 

that smoking policies and smoking bans are excepted fix>m the ACAA and the ADA. 

Furthermore, in PGA Tour, Inc. v. Martin, the U.S. Supreme Court mterpreted 42 U.S.C. 

§ 12182(a), the general rule prohibiting discrimination imder Tide in of the ADA, as it 

pertains to golf competitions. 

The Supreme court held that: 

As we have noted, the statute contemplates three inquiries: whether the 

requested modification is "reasonable," whether it is ''necessary" for the 

disabled individual, and whether it would "fundamentally alter the nature 

of the competition." 42 U.S.C. § 12182(b)(2)(A)(ii). 532 U.S. 683 n.38. 

Therefore, PGA Tour, Inc. v. Martin imposes upon the DOT the requirement that the 

DOT apply the three prong test to the Williams/Woodbury/Young complamt regarding 

second hand tobacco smoke. 

First Is the requested modification, the removal of second hand tobacco smoke, a public 

health hazard, reasonable?; 

Second. Is the requested modification, the removal of second hand tobacco smoke, a 

public health hazard, necessary?; 

Third. Would maldng the requested modification, the removal of a pubUc health hazard 

from a public accommodation, be a fundamental alteration? 

Obviously, it cannot be said that removing a public health hazard firom a public 

accommodation is unreasonable or that removing a public health hazard from a public 

accommodation is unnecessary or that removing a public health hazard fi'om a public 

accommodation would be a fimdamental alteration. 

Therefore, the WilliarasAVoodbuiy/Young complaint should be sustained by the DOT. 
SI()-I()()226-()?S 

RespectftiHy siibmitled, 

^ 'TKossie/udcli:., ' 
S1()-1()()226-()3S 

THE WHITE HOUSE 

WASHINGTO N 

April 29,2009 

Rossie Judd 

1394 Robindale Drive 

Fenton, Missouri 63026 

Dear Rossie: 

Thank you for contacting the office of President Barack Obama. The 

President appreciates your taking the time to voice your concerns and opinions. 

We would like to be of assistance to you; however, your correspondence 

does not state the specific nature of your concern. If you need help with a Federal 

agency, please provide our office with a brief, but detailed description of your 

issue. 

Please be aware that you can visit www.usa.gov or call 1-800-FEDINFO 

for information about government assistance. 

Again, thank you for your correspondence. 

Sincerely, 

^ . J^UL {UIJLL 

F. Michael Kelleher 

Special Assistant to the President and 

Director of Presidential Correspondence 
SI()-I()()226-()5,S 

USA HRSTCIA!;} 

Ll « U I. ii 

•st^yS^V 

4^1 v^F. 

o 

S