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Anti-Smoking Suit Targets Restaurants

Health activist cites his disability -- coronary heart disease

By Truman Lewis
ConsumerAffairs.com

February 5, 2008

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If a pending Virginia lawsuit were to prevail, courts in local jurisdictions could force area restaurants to become smoke-free.

The interesting aspect of this unusual case is that the plaintiff's attorneys are trying to convince the judge to grant them class-action status.

The case was filed by a public health educator and anti-smoking activist who for years plotted ways to make restaurants smoke-free but could not come up with a plaintiff - until he himself had a heart attack.

"I decided to make some lemonade out of a lemon," said James Bogden who filed the lawsuit and spoke at length to The Washington Post.

Bogden has filed a lawsuit against four restaurants, all part of well-known local restaurant chains that have been operating popular eateries in suburban Washington for years.

The restaurants he has sued are: Clyde's at Mark Center and Denny's in Alexandria, Harry's Tap Room in Arlington and Mike's American Grill in Springfield. All the restaurants are located in Virginia.

The suit seeks to require the restaurants to become smoke-free, arguing that they must accommodate the plaintiff's disability -- coronary heart disease. The restaurants currently allow smoking in designated areas.

The suit is also unusual because Bogden does not seek monetary damages beyond his court costs. However, that could change if the judge were to grant the attorneys class-action status, as they requested this past November.

Virginia has a statewide ban on smoking in public places.

Bogden, who is also an active member of an anti-smoking lobby, SmokefreeDC, argues that he just wants to sit down and eat his dinner in the comfort of clean air and that he finds it difficult to find restaurants that are smoke-free and has to often decline invitations from colleagues and friends to eat out at restaurants for this reason.

The suit has been filed under the Americans with Disabilities Act because Bogden claims a restaurant should not discriminate against a person with a disability.

Lawyers for the restaurateurs are not talking. They fear that if Bodgen were to prevail, similar cases could be filed in other states.

Bogden, by the way, did not have his heart attack while eating at a restaurant. Ironically, he was reportedly exercising on a treadmill at the time.

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