New Jersey Superior Court Judge Patrick Bartels gave Atlantic City casinos a big win right before Labor Day weekend started, dismissing a case from workers who — citing the impact on their health — aimed at having smoking banned in its entirety in all casinos.
The ruling, issued Friday afternoon, was a big win for the casino industry — and potentially precedent-setting for one reason: It had nothing to do with the harm cigarette smoke can have on workers, but the extent to which workers can determine the safety parameters of their jobs.
Simply put, Bartels ruled the casino industry’s exemption in the state’s 2006 Smoke-Free Air Act (which bans smoking in almost all public areas) did not impact workers because they have the ability to work elsewhere.
In his ruling, Bartels said the court was “sympathetic to health hazards,” but that the Smoke-Free Air Act does not violate the casino workers’ right to pursue safety.
“The act places no parameters on a casino worker’s ability to seek work in a smoke-free environment,” Bartels wrote.
For background, smoking currently is allowed on just 25% of a casino floor — although most feel the impact of second-hand smoke can be felt throughout. Workers were looking to ban it outright.
The lawsuit, filed in April by the United Auto Workers, which represents dealers at the Bally’s Atlantic City Casino Resort, Caesars Atlantic City and Tropicana Atlantic City, sought to overturn New Jersey’s indoor smoking law, which bans it in virtually every workplace except casinos.
The casino industry, represented by Chris Porrino of Lowenstein Sandler, not only argued workers have the option to work elsewhere, but said changing the dynamic of the environment (that is, banning all smoking) would be crushing to business — as happened when all smoking was banned briefly in 2008.
An outright smoking ban, the industry said, would not only cost casinos revenue, it also would also cause jobs to be lost and taxes paid to the city to be reduced.
Porrino successfully argued that was no conceivable justification to overturn the exemption casinos were given.
“The simple facts are that many people who gamble like to smoke,” he argued. “If the smoking exemption is stricken, jobs will be lost and employees will be out of work. They will lose their medical and other benefits. The conceivable justifications for the legislation are and were completely obvious.”
Porrino said he understood there is opposition to the situation, but he argued any change must come from the Legislature.
“There is no question that some disagree with the policy judgment of the Legislature to allow smoking in casinos, and, for that matter, to allow smoking in hotel rooms; to allow smoking in tobacco lounges; to allow smoking in houses; to allow smoking in cars; and to allow smoking in cannabis lounges, where nonsmokers are all exposed to secondhand smoke.
“But, our elected officials struck what they believed was the most appropriate balance and have had the opportunity every year for 18 years since the act was passed to strike a different balance.
“If the Legislature changes its collective mind and decides to strike a different balance, then the law will change. If not, the law must stand, and plaintiffs’ complaint must be dismissed.”
Mark Giannantonio, president of Resorts Casino Hotel and of the Casino Association of New Jersey, said the group was “gratified” by the court’s decision.
He said the industry and the leading casino workers union, Local 54 of Unite Here, are working together on the issue.
“We look forward to continuing to work with stakeholders towards a solution that addresses the health concerns of our employees, while also protecting the collective interest and well-being of the entire Atlantic City workforce,” Giannantonio said.
Attorney Nancy Erika Smith of Smith Mullin, who argued the case on behalf of the workers, said the fight will continue.
“While the rest of the nation moves away from poisoning workers for profits, New Jersey shames itself,” she said in a written statement. “As long as the governor, the Legislature and the courts allow the extremely rich casino industry to poison its workers, we will continue our fight.”
