By Jerry Markon
Washington Post Staff Writer
Thursday, January 31, 2008
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.
Bogden, 51, works for the National Association of State Boards of Education in Alexandria, where his specialty is helping schools design policies to promote better health.
He is a board member of Smokefree DC, which pushed for the restaurant smoking ban in the District. A few years ago, before the D.C. ban was enacted, Bogden and the group's attorney, J.P. Szymkowicz, began discussing a strategy to use the courts to force such a ban in the District. The two later turned their attention to Virginia.
Without a plaintiff, there was no lawsuit until after Bogden began feeling chest pains while running on a treadmill in January 2006.
"I thought I had strained my chest muscles," said Bogden, who walked around for four days with intermittent chest pains before going to George Washington University Hospital in the District, where he lives.
The diagnosis was a moderate heart attack. Doctors performed an angioplasty and warned Bogden to avoid secondhand smoke because he had coronary artery disease. The smoke is especially dangerous for him, doctors said, because of his family history. His father developed heart disease at age 45, and his mother died of a heart attack at 61.
Through the lawsuit, Bogden also thought he could help publicize the results of a 2006 report by the U.S. surgeon general. It found that the health effects of secondhand smoke are much more pervasive than previously thought and that it dramatically increases the risk of heart disease and lung cancer in nonsmokers.
For his targets, Bogden chose restaurants where he had eaten before his heart attack. He liked them, he said, but is now reluctant to patronize the establishments because he thinks they are too smoky.
"He has had to decline invitations from co-workers and business associates to go to these restaurants," said Szymkowicz, who is representing Bogden in the case. "All of these restaurants have good food; so if he likes the food and atmosphere in a particular restaurant, why should he have to go somewhere else?"
The lawsuit says Bogden "attempted to patronize" each of the restaurants on various occasions since his heart attack but had to leave because he could smell smoke.
"There was no immediate physical effect apart from sensing that there was smoke," he said, "but it was the knowledge that I'm walking around with this ticking time bomb in my heart, and smoke is one of the things that could trigger it."
Bogden said he was able to eat at Mike's American on one occasion since his heart attack, when there apparently was no secondhand smoke.
The lawsuit also cites information from an air-pollution specialist working for Bogden's team who covertly measured the air quality at the four restaurants using a device about half the size of a shoebox.
The expert found that all the restaurants "were contaminated with secondhand smoke" and that "the smoke levels which Mr. Bogden would encounter by patronizing these venues would place him at risk," the lawsuit said.