Today, a lawsuit was filed challenging the casino exemption to New Jersey’s non-smoking ban as a violation of the state’s constitution. The lawsuit filing is a new attempt to finally close the casino floor loophole that was implemented at the time the law passed in 2006, after casino leadership asserted it would detrimentally impact the success of the casinos.
For years, casino workers and advocates have been attempting to close the loophole, working with lawmakers and through legislation efforts. The difficulties making progress there, combined with new leadership at some of the unions and organizations working on behalf of the casino employees, led to a review of approach.
Ray Jensen Jr., assistant director of The United Auto Workers of America Region 9, said he and his boss, director Dan Vicente, “came into these roles just about a year ago. Our servicing rep Pat Ashton has been working with the CEASE (Casino Employees Against Smoking’s (Harmful) Effects) group the last three years. We tried to do things the right way. We tried things the polite way in the legislative halls. It was met with resistance by casino lobbyists with deep pockets.”
Jensen said that with the initiation of this approach, efforts to work legislatively will continue, but this additional step will aim to increase the chances of a resolution, and more quickly.
The constitutional challenge has three aspects to it:
- The language in the state constitution says “all persons are by nature free and independent, and have certain natural and unalienable rights, among which are… pursuing and obtaining safety and happiness.” Pursuing and obtaining safety are the words in question here, given employees cannot pursue and obtain safety when forced to breathe in second-hand smoke, and which the suit asserts.
- The Constitution also states the “Legislature shall not pass any special laws… or grant to any corporation … any exclusive privilege [or] immunity…” By allowing casinos to have smoking spaces, they are being granted an exclusive privilege, the lawsuit contends.
- Finally, the suit challenges the law because it takes away those employees’ equal protection under the law by governing them under different rules.
With this lawsuit, the state can likely go one of a couple of paths, according to Jensen:
- The state could consent to this interpretation. If so, this would mean a smoking ban would be put in place everywhere, including casinos. Jensen said this could finally bring resolution, noting “our ultimate goal is to get the law changed, but we are hoping the state of New Jersey would just consent.”
- In the absence of consent, the case would go to court. This would require the state to defend the smoking loophole in a trial. “I don’t believe the New Jersey Attorney General is going to want to testify in court as to why this is beneficial to the casinos or workers,” Jensen said.
A judge has signed an order to show cause, and after granting a two week extension to the state, a response must be filed by the state by April 29, with a hearing set for May 13 in Trenton.
The lawsuit is filed by UAW Region 9, but also has the CEASE group as a secondary plaintiff, to underscore not only the direct employee impact by the smoking loophole, but that the employees support the efforts. UAW President Shawn Fain has been supporting the initiative through both the legislative efforts and now this suit, and participated in the announcement with a video:
As an advocate for a smokefree casino environment, Brian Christopher has testified in New Jersey during multiple legislative sessions about the importance of a smokefree environment both for casino workers and patrons like himself. Flip The Switch will continue to monitor the progress of this lawsuit and will share updates here on the site.
Smoke free casinos benefit everyone.
Smokers and non smokers
The employees who are working day in and day out are the biggest concern of all. For their health alone these smoke free casinos should be across the country .
Thanks Christine! We’re hoping for a quick resolution for the workers here.