State, casinos, unions ask judge to dismiss workers’ smoking carveout lawsuit

by Nikita Biryukov, New Jersey Monitor

The state joined casinos and a bevy of construction unions in urging a Superior Court judge this week to reject casino workers’ constitutional challenge of the smoking carveout for gaming houses in New Jersey’s Smoke-Free Air Act.

Supporters of the exemption said a preliminary injunction would be inappropriate in a challenge targeting an 18-year-old law, adding casino workers who sued earlier this month to get smoking banned in casinos had failed to show the carveout was unconstitutional.

“Plaintiffs have the right to disagree with the law as it currently stands. But they do not have the right to a judicial order short-circuiting the usual democratic process,” the state’s attorneys wrote.

In their lawsuit against the state, the United Auto Workers — which represents dealers at some Atlantic City casinos — said casinos’ smoking exemption overran a constitutional guarantee to safety and was unconstitutionally narrow special legislation.

The suit was the latest step in a yearslong advocacy campaign that has seen virtually no progress in the legislature despite a bill that would end the exemption winning sponsorships from a majority of legislators in both chambers and pledges from Gov. Phil Murphy to sign the bill once it reached his desk.

Their push has met with resistance from the casino industry itself, which has warned a smoking ban would cut revenues and push tobacco users to gamble in Pennsylvania, forcing job losses. Unions representing other casino workers and New Jersey’s government echoed those arguments in briefs filed Monday.

State attorneys argued the carveout was not unconstitutional special legislation because it was applied equally to every New Jersey casino. That casino workers were treated differently than other workers was irrelevant because casinos, not employees, were the regulated entity, they said.

“Different safety regulations have long applied to different workplaces depending on the characteristics of the premises and the activity carried out there without raising constitutional concerns,” state attorneys wrote.

Those arguments were echoed by the Casino Association of New Jersey and several construction and building trades unions that have sought to intervene to guard the smoking carveout.

The Casino Association charged UAW erred when claiming the state constitution affords a broad guarantee of safety, arguing a constitutional provision outlining inalienable rights that included the pursuit of “safety and happiness” was meant to limit state power, not extend safety guarantees to every citizen.

“If the Court were to impose an affirmative obligation on the Legislature to pass laws to protect citizens’ safety, then the Court would quickly evolve into some sort of ‘super legislature’ for the general welfare,” the association’s attorneys wrote.

The association went on to say casinos’ smoking carveout did not violate constitutional rights on equal protection because casino employees could simply go work elsewhere.

They also warned about the economic impacts of ending the smoking carveout, citing a 2021 study they commissioned that said making casinos wholly smoke-free would reduce gross gaming revenue from smokers by between 5% and 11.9%. The study estimated smokers account for 21% of Atlantic City gamblers.

Casinos’ operating profit rose by 2.6% year-over-year in 2023, though four of the state’s nine casino licensees reported a loss for the year. Online gambling and digital sports betting continue to grow explosively. Revenue from those streams grew by 16% and 32% in 2023.

In a statement on Monday, Nancy Erika Smith, counsel for the plaintiffs, said the economic factors “have absolutely no relevance to the constitutional question at hand.”