Attacking the Smoking Ban

A statewide ban on smoking in restaurants and

And that was just for starters.

The New Jersey Restaurant Association, which bitterly resents the fact that the measure permits smoking on gambling floors in hotel-casinos, is readying a complaint charging that the exemption discriminates against bars and restaurants.

"By exempting an industry that is in the hospitality business, [the ban] gives [casinos] a competitive advantage that is unfair to the rest, especially restaurants in and around Atlantic City," says Gary Young, a lawyer for the restaurant association. In addition to casinos, I the ban exempts cigar lounges, specially designated hotel rooms and businesses that test tobacco products.

Also considering a legal fight is the New Jersey Licensed Beverage Association, which represents bars and other dispensers of alcoholic drinks.

Some lawmakers are angry about the exemption. State Senator Shirley K. Turner (D-Mercer) plans to introduce a bill in the new session of the Legislature that starts this week to ban smoking in casinos. "If the mom-and-pop stores and the small restaurants have to ban smoking, the ritzy casinos should too," says Turner.

The restaurant association will ask a U.S. District Court to declare the smoking ban unconstitutional under a Civil War-era law that prohibits discrimination by states. The same measure was used to combat racial discrimination in 1960s civil rights cases.

"If this had been a blanket prohibition, like it or not, we would accept it," says Young, who is with Mandelbaum Salzburg in West Orange. "It would be fair and logical. But the logic is blown out of the water when you are exempting [casinos] , probably the worst offender when it comes to subjecting employees to unsafe conditions" in the form of exposure to tobacco smoke.

The association says it could live with an across-the-board ban, despite the negative impact on the state's $9 billion restaurant industry, which has 20,000 businesses employing 220,000 people.

At least 800 of New Jersey's 6,000 bars and restaurants with liquor licenses already bar smoking, according to the association.

The trade group created what it calls the "New Jersey Hospitality Industry for Fairness Coalition" to challenge the smoking ban in court, and seeks contributions to help pay for the battle. The first check-for $10,000-came from Cathy Burke, owner of the Irish Pub, an Atlantic City boardwalk restaurant.

Meanwhile, the bowling proprietors' lawsuit charges that exiting Governor Richard Codey lacked the authority to sign the smoking ban because he failed to do so before his term technically expired on January 11. But the office of Attorney General Peter Harvey argues that Codey remains governor until Governorelect Jon Corzine replaces him this week.

"This is a last-resort thing because of the discrimination we feel is in the bill," says Thomas Martino, a spokesperson for the bowling association and co-owner of Majestic Lanes in Woodbridge

Lawmakers had debated a smoking ban for more than a decade before they finally passed it. The measure won the votes it needed when Codey and the bill's sponsors reluctantly agreed to exempt casino floors, but not the bars and restaurants in casino hotels. Codey said the concession was necessary to move the bill through the State Assembly.

Last week's 64-12 Assembly vote for the ban made New Jersey the 11th state to prohibit indoor smoking, joining Northeast neighbors New York, Connecticut and Delaware. The New Jersey Senate approved the bill in December.

"We no longer can justify subjecting these workers to such dangerous conditions," says Assemblyman Reed Gusciora (D-Mercer), one of the smoking ban's sponsors. "This legislation is the first step. One day, I hope that every public building in the state will be smoke-free."

Last November, the New Jersey Group Against Smoking Pollution released results of an air-sample study showing that the air quality in bars, restaurants, casinos and bowling alleys posed serious health risks to their employees.

The American Heart Association says the value of the ban cannot be measured in dollars alone. It says secondhand smoke leads to heart and blood-vessel diseases that contribute to 40,000 U.S. deaths a year.

The smoke from the burning tip of a cigarette is 20 times more dangerous than what a smoker inhales, according to the association. It says 30 minutes of exposure to secondhand smoke can reduce blood circulation and increases the risk of heart attacks.