New Jersey is facing a constitutional challenge over a state law allowing smoking in casinos.
Excluding the state’s gambling casinos from its Smoke Free Air Act violates workers’ constitutional right to safety, according to a suit filed by a labor union and an anti-smoking group.
The suit seeks a declaratory judgment that excluding casino workers from the indoor smoking ban is unconstitutional and asks the state to end its exclusion of casino workers from that law.
Casinos were exempted when the state enacted the SFAA in 2006, according to the suit.
That law prohibits smoking tobacco or using electronic smoking devices in enclosed indoor spaces of public access, along with workplaces, public parks and beaches.
When the COVID-19 pandemic struck in March 2020, Gov. Phil Murphy signed an executive order closing the casinos. The casinos were allowed to reopen 105 days later and smoking was not allowed, the suit says.
On Sept. 1, 2020, Murphy signed an executive order allowing smoking in casinos. But after hearing pushback, Murphy reinstated the ban three days later, the suit claims.
Finally, on July 4, 2021, Murphy signed an executive order that allowed smoking to resume in casinos, the suit says.
But that action violates casino employees’ constitutional right to safety, according to the suit.
Murphy and Kaitlin Baston, the acting state health commissioner, are the defendants in the suit.
When asked to comment on the suit, Tyler Jones, a spokesperson for the governor, cited an interview in which Murphy said he would sign a bill permanently banning smoking in casinos if the Legislature enacts one. A spokesperson for the Department of Health, Nancy Kearney, said the department does not comment on pending litigation.
The suit was filed by Region 9 of the United Auto Workers, which represents 3,000 workers in the Bally’s, Caesars and Tropicana casinos, along with Casino Employees’ Against Smoking’s Harmful Effects, or CEASE. That group, formed in 2021 with members in all of Atlantic City’s casinos, includes some who do not smoke but have cancer and other diseases related to smoking, according to the suit.
Nancy Erika Smith of Smith Mullin in Montclair represents the plaintiffs.
Nancy Erika Smith of Smith Mullin.“I would ask Attorney General Platkin, Gov. Murphy and Health Commissioner Baston to do the right thing today and stop the poisoning of casino workers in violation of their constitutional right to be treated to the same safety and health protection as legislators and everyone else in government and private businesses,” Smith said. “The [Centers for Disease Control and Prevention] states that 60 minutes breathing secondhand smoke harms cells. Right this moment, casino workers are breathing toxic smoke and endangering their health. It’s legally and morally indefensible.”
Smith filed the suit on April 5 in Mercer County Superior Court and, on the same day, she filed an order to show cause seeking a declaratory judgment that the exclusion of casino workers from the act is unconstitutional.
The suit claims excluding casino workers violates a constitutional ban on granting a special privilege, immunity or franchise to any corporation, association or individual.
“The exclusion of casino workers from the Smoke Free Air Act is an unconstitutional special law because it rests on a false or deficient classification, does not embrace all the class to which it is naturally related, creates a preference and establishes inequalities, and applies to persons with certain qualities and excludes from its protections other persons, which are not too dissimilar in these respects,” the suit claims.
“The exclusion of casinos—rich corporations—from the Smoke Free Air Act is the unconstitutional granting to several corporations [of] an exclusive privilege and immunity,” the suit alleges. “The favoritism granted the corporate casinos violates a very clear provision of the New Jersey constitution.”
