Last week, Superior Court Judge Patrick Bartels ruled a carveout in the 2006 New Jersey Smoke-Free Air Act that allows smoking in casinos and their simulcasting facilities is not unconstitutional. (Dana DiFilippo | New Jersey Monitor)
Casino workers seeking to end an exemption in the state’s indoor smoking ban asked New Jersey’s Supreme Court to take up their case as an expedited appeal Wednesday.
The filing by United Automobile Workers Region 9 — which represents casino dealers, slot machine attendants, and others on the casino floor — comes a little more than a week after a lower court judge ruled the exemption is constitutional.
“In this case, exclusion of casino workers from safety protections given to other workers is blatant favoritism for a powerful industry located in only one municipality in the State, precisely what the New Jersey Constitution prevents,” the plaintiffs said in their appeal.
Last week, Superior Court Judge Patrick Bartels ruled a carveout in the 2006 New Jersey Smoke-Free Air Act that allows smoking in casinos and their simulcasting facilities is not unconstitutional because the state’s constitution provides only a right to pursue safety, rather than a right to safety in and of itself.
UAW and the Casino Employees Against Smoking Effects, a co-plaintiff, had argued the deleterious health effects of second-hand smoke had imperiled the health and lives of casino floor workers in violation of constitutional protections.
In Wednesday’s filing, they argued state statute and numerous court decisions have found support for a safe workplace, adding that Bartels erred when he found no New Jersey case law supports a constitutional right to safety.
“That analysis ignores the actual words of the Constitution which protects the right to ‘pursue and obtain safety,’” the plaintiffs said in their filings.
The plaintiffs charged the judge was wrong when he found the law’s exclusion of casino workers was not arbitrary, one leg of a three-prong test for unconstitutional special legislation — laws that improperly single out an individual or group and do not apply to others similarly situated.
Bartels ruled the carveouts are permissible because Atlantic City has a unique constitutional status that allows the Legislature to permit and regulate gambling within its borders. Casino workers were, therefore, not improperly singled out, he found.
The Casino Association of New Jersey and labor unions that joined the case as intervenors have argued ending the carveout would imperil casinos’ profitability, cautioning a ban would send gamblers fleeing to neighboring states that allow smoking inside of gaming houses.
The judge credited that argument, finding the public could be harmed by a loss of casino gaming tax revenue if those fears proved true, though the plaintiffs argued that is no reason to keep the exemptions intact.
“Plaintiffs submit that the State’s decision to allow gambling in Atlantic City did not make it a ‘law free’ zone or render its workers and residents unprotected by New Jersey’s Constitution and laws,” they said in Wednesday’s filing.
An attorney for the Casino Association of New Jersey did not immediately return a request for comment.
The court battle is the latest front in a yearslong fight to end casinos’ indoor smoking exemption that gained steam when Gov. Phil Murphy issued executive orders that paused the practice for more than a year in the early stages of the pandemic.
Advocates have sought to push through legislation that would have done away with the carveout. The bill stalled for years — despite winning sponsorships from majorities of legislators in both chambers — because of casino owners’ fears that barring indoor smoking would make them unviable.
Some backed compromise legislation that would allow smoking in enclosed rooms, but others, including Sen. Joe Vitale (D-Middlesex), balked at the proposal. Vitale chairs the Senate’s health committee.
That committee approved the original measure in January , but it has not advanced to a floor vote or through committees in the lower chamber. In the current session, 17 senators and 42 members of the Assembly are sponsoring the bill.
“This isn’t about politics, it’s about doing what’s right for workers and their families,” Assemblyman John DiMaio (R-Warren), his chamber’s minority leader, said in a statement Wednesday. “With significant bipartisan support, there’s no reason not to get this done.”
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