A group of casino workers have argued the impact of second-hand smoke has imperiled the health and lives of workers on the casino floor. (Dana DiFilippo | New Jersey Monitor)
The New Jersey Supreme Court declined to speed casino workers’ request for an injunction that would suspend an exemption for gaming houses in the state’s indoor smoking ban, finding the request did “not warrant adjudication on short notice.”
Thursday’s decision is the latest in a series of roadblocks for a coalition of casino workers that has unsuccessfully sought to ban smoking in casinos through legislative means and, more recently, the courts .
“My clients are disappointed that the daily assault on their health is not concerning enough to require at least a pause while we litigate the legal issues,” said Nancy Erika Smith, an attorney representing the United Auto Workers Union that lodged the suit.
The high court’s decision, earlier reported by Politico New Jersey , will keep the challenge in the Appellate Division, where Smith said the plaintiffs had also requested an expedited appeal.
The union and Casino Employees Against Smoking Effects, a co-plaintiff, argued the impact of second-hand smoke has imperiled the health and lives of workers on the casino floor, urging the court to extend the indoor smoking ban to gaming houses while the litigation continues.
They have argued the exemption runs afoul of safety guarantees in the New Jersey Constitution and is unconstitutional special legislation — laws that single out individuals or groups and do not apply to others similarly situated — that impermissibly singles out casino workers.
On Aug. 30, Superior Court Judge Patrick Bartels ruled the casino carveout in the 2006 New Jersey Smoke-Free Air Act passes constitutional muster, finding the state’s constitution provides only a right to pursue safety, rather than a right to safety itself.
He rejected claims that the exemption is special legislation. Because Atlantic City has a unique constitutional status that allows the Legislature to permit and regulate gambling there, casino workers are a distinct class, and the exemption is not arbitrary, Bartels ruled.
Plaintiffs charged the judge erred on both counts and repeated warnings that continuing to allow smoking in casinos would leave workers’ lives and health at risk.
“The [Centers for Disease Control and Prevention] notes that 60 minutes of exposure to second-hand smoke can cause bodily changes that lead to cancer, stroke, heart disease, and other serious illnesses. The pregnant workers are particularly devastated that the Court did not accept the urgency of their health concerns,” Smith said.
The fight to end casinos’ smoking exemption has dragged on for years. Though legislation to end the carveout once won sponsorships from majorities of legislators in both chambers, the bill has never reached Gov. Phil Murphy’s desk .
Members of legislative leadership feared ending the exemption would drive gamblers to casinos in neighboring states where indoor smoking is allowed, a charge echoed by the gaming houses themselves and a separate union that represents other casino workers.
Murphy has repeatedly said he would sign the bill if it reached his desk, most recently on Thursday, but has rejected calls to take executive action on this issue, as he did for more than a year in the early stages of the pandemic.
That pause was issued under emergency powers and would almost certainly fail to survive a court challenge absent a state of emergency.
“It would be struck down probably within 24 hours,” Murphy said during a radio show Thursday, adding, “I hope folks out there have heard me say this now probably 100 times: If a bill gets to my desk to ban smoking in casinos, I will sign it.”
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