Man With Heart Condition Wants Smoke-Free Eateries

Suit Invokes ADA In Push for a Ban

James Bogden wanted to use the courts to force Virginia restaurants to become smoke-free, but he could never find the right plaintiff to file a lawsuit.

Until one day in 2006, when Bogden had a heart attack and realized he had his man: himself.

"My heart attack happened, and voil¿," said Bogden, a public health educator and anti-smoking activist. "I decided to make some lemonade out of a lemon."

Bogden is the plaintiff in a lawsuit filed against four local restaurants in U.S. District Court in Alexandria. The suit seeks to require the restaurants to become smoke-free, arguing that they must accommodate Bogden's disability, coronary artery disease, and eliminate secondhand smoke so he can eat at them. Each of the restaurants allows smoking in designated areas.

Lawyers said that it's rare to ask a judge to intervene in the debate over smoking in restaurants and bars and that the suit is unusual because Bogden is not seeking monetary damages beyond his court costs. After his doctor warned him to avoid secondhand smoke, all Bogden wants is an order requiring the restaurants to ban smoking.

Asked why he doesn't eat at smoke-free restaurants, Bogden, who filed his claim under the Americans With Disabilities Act, said those establishments are hard to find.

"And I shouldn't have to do that," he said. "The ADA says restaurants can't discriminate against a person with a disability."

Exactly what the ADA requires is at the heart of the legal argument. Attorneys for the restaurants -- Clyde's at Mark Center and Denny's in Alexandria, Harry's Tap Room in Arlington and Mike's American Grill in Springfield -- are asking a judge to dismiss the case, arguing that Bogden's heart condition does not make him disabled under the ADA.

The lawsuit is "a thinly veiled attempt to compel this Court to improperly usurp the functions of the Virginia legislature," the restaurants argued in their motion for dismissal, filed this month. A judge will hear arguments on that motion Feb. 8. The lawsuit, which seeks class-action status, was filed in November.

Attorneys for the restaurants declined to comment beyond the motion.

The case comes as debate over smoking in public places is escalating in Virginia. Gov. Timothy M. Kaine (D) proposed a statewide ban on smoking in bars and restaurants in his State of the Commonwealth address this month; legislators rejected a similar proposal last year. More than 20 states and the District have such bans, and one will take effect next month in Maryland.

If Bogden's lawsuit is successful, he said he wants to use it as a model that could be replicated elsewhere in Virginia and other states.