Judge allows smoking to continue in Atlantic City casinos, dealing blow to workers

A judge on Friday allowed smoking to continue in Atlantic City’s casinos, giving some measure of relief to the city’s struggling casino industry while rebuffing workers who have long sought to be able to breathe clean air on the casino floor.

The ruling by Superior Court Judge Patrick Bartels represented a major victory for the city’s nine casinos, most of which are winning less money from in-person gamblers than they did before the COVID19 pandemic hit.

But it was a big a setback for workers who have been trying for four years to ban smoking in their workplaces, first by trying to get lawmakers to change the law, then by filing a lawsuit. A lawyer for the workers said she will ask the state Supreme Court to consider the case on an expedited basis.

The casinos had warned that thousands of jobs and millions in gambling revenue and taxes could be lost if smoking was banned.

“We are gratified by the court’s decision to dismiss plaintiff’s complaint and deny its attempt to change the Smoke-Free Air Act outside of the legislative process,” said Mark Giannantonio, president of Resorts Casino and of the Casino Association of New Jersey.

He said the industry, the city and the main casino workers union, Local 54 of Unite Here “have taken significant steps over the years to create a healthier environment for employees and patrons, including limiting smoking to just a fraction of the floorspace.”

“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.

Anti-smoking workers vowed to continue pushing for smoke-free casinos.

“This fight is far from over,” said Lamont White, a Borgata dealer and a leader of the anti-smoking movement. “While today’s outcome is disappointing, our determination remains unshaken.”

White said the ruling gives legislators “even more reason to uphold their responsibility to finally do the right thing and pass the bipartisan legislation that New Jerseyans overwhelmingly support,” he said. “It’s time to make things right for the thousands of us workers still working and living without the same protection afforded to every other New Jerseyan.”

Nancy Erika Smith, who argued the case on behalf of the workers, decried the ruling and promised to appeal it.

“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.”

Whether to ban smoking is one of the most controversial issues not only in Atlantic City casinos, but in other states where workers have expressed concern about secondhand smoke. They are waging similar campaigns in Rhode Island, Pennsylvania, Kansas and Virginia.

Currently, smoking is allowed on 25% of the casino floor in Atlantic City. But those areas are not contiguous, and the practical effect is that secondhand smoke is present in varying degrees throughout the casino floor.

The lawsuit filed in April by the United Auto Workers, which represents dealers at the Bally’s, Caesars and Tropicana casinos, sought to overturn New Jersey’s indoor smoking law, which bans it in virtually every workplace except casinos.

In a May 13 hearing before the judge in Trenton, Smith raised issues of equal protection under the law, and what she called a constitutional right to safety. The judge, however, said the workers’ “reliance on a constitutional right to safety is not well-settled law” and predicted they would not be likely to prevail with such a claim.

The state attorney general’s office emphasized the possibility that a smoking ban could reduce tax revenue that funds programs for New Jersey’s senior citizens and disabled residents.

Atlantic City briefly implemented a smoking ban in 2008, but quickly repealed it after the casinos experienced a drop in revenue of nearly 20% in two weeks, according to Seth Ptasiewicz, an attorney for casino workers who want to keep the current smoking policy.

Smoking opponents dispute that the casinos would lose business, citing a study showing casinos that ended smoking did better financially without it.

The anti-smoking workers brought the lawsuit after years of efforts to get lawmakers to change the law became bogged down.

Shortly after a bill that would end smoking advanced out of a state Senate committee, other lawmakers introduced a competing bill that would continue to allow smoking on 25% of the casino floor, but would reconfigure where it is allowed. No employee would be forced to work in a smoking area against their will, under the bill.

Neither measure has been acted on in months.