Will this lawsuit finally put an end to cigarette smoke in Atlantic City casinos?: Stile

It was only several weeks ago that a federal judge halted the county line ballot format on the grounds that the antiquated design was likely to be found unconstitutional.

It was a stunning blow to the only-in-New Jersey ballot design that propped up the power of party bosses and county leaders for decades.

Now, a question looms. Will another judge — this time sitting in state court — effectively order a long-overdue reform that the Legislature has failed to deliver?

At issue is the special exemption that the Atlantic City casinos have enjoyed from the state’s ban on indoor smoking since it became law in 2006. For 18 years, smoking has been prohibited in places such as restaurants, parks, stores, trains and buses.

The ban is now a routine feature of public life in New Jersey — except in casinos. The special carve-out in the law allows smoking on 25% of the casino floor, which to dealers and other casino workers is a meaningless distinction. Smoke drifts through the casino without regard to arbitrary barriers.

Workers say they are forced to ply their trade under a toxic pall of secondhand smoke despite the well-documented dangers of an increased risk of cancer, cardiovascular diseases and other health problems. Some workers say the fouled air has turned the casinos into large, reeking ashtrays that endanger their health and has already harmed co-workers.

Last month a grassroots group of workers, fed up with the Legislature’s failure to move on bills that would scrap the industry’s special privilege, filed a suit against Gov. Phil Murphy and the acting state health commissioner, asserting that the exclusion is a form of favoritism barred by the state constitution.

The suit, filed by the group Casino Employees Against Smoking Effects — CEASE — and the United Auto Workers, who represent some casino industry employees, also argues that forcing workers to endure smoke endangers their constitutional guarantee to safety.

“Killing people and making them sick to put more profits in a corporation is not only unconstitutional, it's inhumane and indefensible," said Nancy Erika Smith, the Montclair attorney representing the workers.

What do the casinos say?

Since the CEASE employees launched their crusade from a Facebook page during the pandemic, when smoking was banned, the debate has largely fallen along a familiar line of battle. The casino industry has warned that losing the smoking exemption would cripple a fragile sector on the rebound. It would drive gamblers with smoking habits to flock to casinos nearby in Pennsylvania, Atlantic City casino operators have said.

“An immediate and complete smoking ban, while smoking is still permitted in casinos in Pennsylvania, against the backdrop of an already weakened and worsening economic climate, would hurt working class people, endanger thousands of jobs and jeopardize the millions of dollars of tax revenue dedicated to New Jersey seniors and people with disabilities," Mark Giannantonio, the president of the Casino Association of New Jersey, said in a statement last week.

But the sky-is-falling rhetoric appeared to have lost its persuasive power in Trenton as it became clear that the largest Philadelphia-area casino, Parx, continued to thrive after voluntarily going smoke-free several years ago. Twenty other states — including neighborin New York and Delaware — have banned smoking in casinos, according to Americans for Non-Smokers’ Rights, a watchdog group. A similar drive to ban smoking in Pennsylvania is casinos is also underway.

And last year, a growing bipartisan coalition of lawmakers signed on as co-sponsors of a bill that would eliminate the exemption for the casinos. In the lame-duck weeks after Election Day last November, when sensitive bills are often posted for a vote, it seemed the exemption would finally end.

Yet that momentum wobbled after a sustained pushback by the industry and its South Jersey allies.

Several sponsors of the measure walked away from the plan, leaving it's passage in limbo. Murphy, who lifted the smoking exemption for a brief period during the pandemic, signaled early on that he was sympathetic to the workers pushing to end the exemption.

But in recent weeks, he has voiced more of a middle ground, citing the fears of the supporters of keeping the exemption, including UNITE HERE Local 54, a large, influential union of casino and hospitality industry workers. Murphy has said he will sign a bill on banning smoking once it gets to his desk -- an indication that many took as his tacit support for a full ban. Now, not everyone is so sure.

“There are legitimate concerns about the commercial viability of Atlantic City," Murphy said on a recent appearance on WNYC Radio.

While the bill ending the exemption is still alive — it cleared an important Senate committee in January — its future remains uncertain in the Democratic-controlled Legislature. Compromise proposals have only added to the sense of uncertainty.

One included creating a smoking room segregated from the rest of the casino floor, staffed only by workers who volunteered for the role. But CEASE members flatly rejected that idea, saying it would effectively coerce workers, especially part-timers, into taking shifts in a smoke-filled room. They say it would be the only shifts offered to them.

“Obviously, people will choose to feed their family over their own health if they have to — but it's crazy that they would have to," said Pete Naccarelli, a veteran card dealer and co-founder of CEASE.

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From the Statehouse to a courtroom

The lawsuit, however, takes the debate away from the political pressures within the halls of the Statehouse and puts it in the courtroom, where the exemption is measured against its constitutional merits.

And at the heart of the legal challenge is a commonsense complaint: Why should the casino workers be treated differently from any other employee who is afforded the basic guarantees of a smoke-free environment? It would be one thing if casino employees were a special class of people with a special DNA that made them impervious to the dangers of smoke. But they are not.

“The purpose is to protect workers from toxic chemicals that kill people," said Smith, the attorney representing CEASE.

It also puts a spotlight on Attorney General Matthew Platkin, who shocked the political establishment by declaring that he would not defend the state laws that established the county line. He deemed the laws unconstitutional and indefensible.

His comments, coming on the eve of a daylong marathon hearing in federal court, were viewed as a major snub to his patron, Murphy, and his wife, Tammy, who was struggling to maintain her candidacy for the U.S. Senate.

Maintaining the county line bracketing design was crucial to the Murphy campaign to secure the Democratic Party's nod for the Senate nomination in the June 4 primary — it would effectively guarantee her an insurmountable advantage in key counties.

Opponents of the smoking exemption are now calling on Platkin take the same approach to the smoking exemption.

“Attorney General Matt Platkin bravely refused to defend an unconstitutional law recently – we ask him to do the same here,'' Smith said. "We also ask Governor Murphy to restore these workers’ right to safety, which he can do today."

It’s worth noting that there are important distinctions in the cases. In the ballot case, the governor and state officials were not the defendants; the smoking lawsuit names the governor and the health commissioner as defendants, which will obligate Platkin to defend them in court.

Still, some are hoping that Platkin will use his position to persuade the governor not to fight the case, and to let the exemption expire, or perhaps, because of his own ethical discomfort, seek an outside counsel to fight the lawsuit.

Either way, fighting the lawsuit could court the kind of public attention that a “fairer, stronger” Murphy might prefer to do without. Or it could serve as a cudgel to get the Legislature to act and lift the carve-out before the courts step in to do it for them.

“We kind of think it's a PR nightmare for Murphy and the state if he decides to fight his own workers' help with their own taxpayer money," Naccarelli said.

Charlie Stile is a veteran New Jersey political columnist. For unlimited access to his unique insights into New Jersey’s political power structure and his powerful watchdog work, please subscribe or activate your digital account today.

Email: stile@northjersey.com

This article originally appeared on NorthJersey.com: Smoking in Atlantic City NJ casinos could cease with new lawsuit