Public Health Committee

JOINT FAVORABLE REPORT

Bill No.:

SB-419

Title:

AN ACT PROHIBITING SMOKING IN REGULATED AREAS OF CASINOS.

Vote Date:

3/17/2008

Vote Action:

Joint Favorable Substitute

PH Date:

2/29/2008

File No.:

SPONSORS OF BILL:

Public Health Committee

REASONS FOR BILL:

To establish a committee to analyze and facilitate an extension of the state's ban on smoking in public places to casinos.

RESPONSE FROM ADMINISTRATION/AGENCY:

Richard Blumenthal, Attorney General:

Testified in support of S.B. 419. The dangers of second hand smoke are well known and well-proven. Connecticut has banned smoking in state-run and privately operated gambling facilities such as the OTB parlors. Casinos too should be smoke-free to protect patrons and workers.

As a matter of law, I must recognize that public places on reservations belonging to federally recognized tribes have a different status under federal law and principles of tribal sovereignty. Casinos on reservation lands have a different legal status because tribal ownership raises significant and serious issues of sovereignty, with potentially broad and sweeping consequences beyond the issue of smoking.

Attorney General Blumenthal reported that he had been asked to give his opinion on whether or not such legislation would be permitted under state or federal law and whether there would be impediments to enforcement of such legislation. He also reported that he would render a legal opinion within the next few weeks.

Legislation is only one means of achieving the goal of smoke-free casinos. Another means – perhaps one that could achieve the goal more swiftly and certainly with less cost and acrimony – is an agreement between the state and Tribes setting a timeline for prohibiting smoking. Discussions with Tribal representatives indicates that such agreement is a realistic objective.

Many states including Colorado, Illinois, Maryland, Minnesota, Montana, Nebraska and Washington now prohibit smoking in non-Tribal casinos. Massachusetts has stated they will not permit smoking in their casinos.

Prohibiting employee exposure to second hand smoke may well be in the employer's best financial interest. Employee sickness and absenteeism declines when workers are spared the effects of second hand smoking.

NATURE AND SOURCES OF SUPPORT:

Andrew Salner, American Cancer Society:

Smoking related diseases are the single most preventable cause of death in our society. Tobacco use accounts for 1/3 of all cancer deaths, including lung, oral, throat, esophagus, pancreas, cervix, kidney, bladder, and stomach cancers. Connecticut has demonstrated leadership in establishing a clean indoor air law and by levying taxes on tobacco products.

Secondhand smoke causes between 35,000 and 40,000 deaths from heart disease every year and 3,000 otherwise healthy nonsmokers will die of lung cancer annually because of their exposure. These deaths occur because tobacco users are not the only ones who breathe smoke. All the people around them inhale it too. The total annual costs of secondhand smoke exposure are estimated to be at least $5 billion in direct medical costs and at least $5 billion in indirect costs.

Smoke-free laws are good for businesses; they're good for the people who frequent them; and they're good for the people who work in them.

Finally, while casino patrons can choose in which establishments they spend their time, workers often do not have the same choice.

Bob Madore, Director of UAW Region 9A:

Previous efforts by dealers to resolve the issue with management have failed completely. In fact, conditions for table games dealers have worsened in recent years.

The UAW at Foxwoods organizing committee had the opportunity to talk one on one with more than two thousand dealers in the months prior to the union vote. Getting rid of smoking at the gaming tables was the one issue with universal support.

Yale University confirms that the legislature is on firm legal ground in expanding the state's current smoking ban to include casinos.

There is undeniable evidence that secondhand smoke is dangerous to people's health. Foxwoods and Mohegan Sun casinos are the largest employers in the state. Workers in southeastern Connecticut have few alternatives to employment.

Daniel E. Livingston:

This legislation is not designed to restrict the rights of two sovereigns. The bill is intended to give casino workers and patrons the same protection from second-hand smoke that workers and patrons of other alcohol serving establishments in the state possess. It is also not true that state law can apply on Indian reservations only if permitted by either the settlement act that establishes the reservation or by tribal compact.

It is worth noting that tribal compacts have the force of federal regulation because they come backed by the Department of the Interior. Federal regulation, of course, is a form of federal law, but it is subordinate to Federal statutes which are Acts of Congress. So even if tribal compacts created some entitlement to unrestricted sale of alcohol, that entitlement would be subordinate to the Congressional determination that alcohol could be sold on Indian Reservations only as permitted by state law. Federal statute trumps Federal regulation, not the other way around.

The current exemption for casinos which allows them to sell alcohol without honoring the smoking ban was created by the General Assembly. If Connecticut chooses to protect these patrons and workers by applying the same smoke free rules to the sale of alcohol to casinos that it does to similar establishments throughout the state, it would be within their rights and responsibilities.

James Repace, Repace Associates, Inc. Secondhand Smoke Consultants:

The 2006 California EPA Report on Environmental Tobacco Smoke as a Toxic Air Contaminant concludes that second hand smoke (SHS) causes lung, breast, and nasal sinus cancer, as well as heart disease mortality, and can induce adult onset asthma. The effects of even brief passive smoking are often nearly as large as chronic active smoking. Although ventilation can affect levels of SHS, the international society of ventilation engineers stated flatly: “no engineering approaches, including current and advanced dilution ventilation and air cleaning technologies have been demonstrated or should be relied upon to control SHS in spaces where smoking occurs.

SHS is a significant threat to the health of casino workers and casino patrons. Studies show that casino workers exposed in close proximity to smokers have SHS doses many times higher than the average U.S nonsmoker for much longer periods of times, and thus are at considerably greater risk of the diseases of SHS than the average person.

● Measurements of respirable particulate air pollution in the Foxwoods and Mohegan Sun Casinos last Saturday night showed levels 7 times outdoors in smoking areas and 5 times outdoors in nonsmoking areas.

● Fine particle and carcinogen air pollution declined by 90% to 95% to outdoor levels in Delaware casinos, bars, and restaurants following a smoke-free workplace law.

● Secondhand smoke is an occupational risk to workers for chronic heart disease, lung, breast, and nasal cancer and respiratory disease

● SHS presents an acute risk of heart attack to persons with cardiovascular disease.

● Unlike smoke-free workplaces, ventilation or air cleaning cannot control secondhand smoke to safe levels.

Lori J. Pelletier, Connecticut AFL-CIO:

This legislation will protect casino workers from workplace hazards such as secondhand smoke.

Thomas Delorme, Foxwoods Employee:

Offered testimony in support of S.B. 419.

Kirill Penteshin, Hunter Smith, Michael Wishnie, Jerome N. Frank Legal Services Organization, Yale Law School:

The Jerome N. Frank Legal Services Organization has concluded that the State has the authority to enact the proposed legislation and apply it to the existing tribally-owned casinos: 1) Under the terms of the Tribal-State Gaming Compacts between the Tribes and the State of Connecticut and 2) pursuant to Title 18 U.S.C 1161, which, as affirmed by the U.S. Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), constitutes a grant of authority by the U.S. Congress to the states to regulate the sale of liquor on Indian tribal land.

Under the terms of the Tribal-State Compacts, the Tribes have consented to be governed by state regulations on the sale of alcohol within their casinos. The authority of the State to regulate liquor licenses within the gaming facilities is also recognized in the tribal laws of both the Mohegan and Mashantucket Pequot Tribes Article V 3-272. of the Mohegan Tribe's Code of Ordinances recognizes that the “laws of the State of Connecticut … apply to the services of alcoholic beverage within any Gaming Facility of the Tribe by virtue of the State of Connecticut – Mohegan Tribe Gaming Compact.” It is clear that the State has the legal power to require a smoke-free environment as a condition on the service of alcohol within said casinos.

Even without consent expressed in the Tribal-State Compacts, the State has authority to extend 19a-342 to casinos. The U.S. Congress, which the U.S. Supreme Court has recognized as having “plenary power to legislate in the field of Indian affairs,” United States v. Lara, (2004), has explicitly granted states the power to require a license for liquor sale on tribal lands under 18 U.S.C. 1161.

No law anywhere privileges tribal casinos to sell alcohol under terms and conditions any different than those that govern public accommodations elsewhere in Connecticut. Under the Tribal-State Compacts, and under controlling federal law, Connecticut liquor laws apply. If Connecticut liquor laws ban smoking as a condition of holding a liquor license, the Tribal Casinos must comply, or give up their license to sell liquor.

Margaret LaCroix, American Lung Association of Connecticut:

The American Lung Association has supported healthy workplaces for all Connecticut workers and patrons. The smoking ban passed in 2003 was an important step to insure health workplaces. It is time that the workplaces that still permit smoking come under the purview of the smoking ban.

Pat Checko, Chairman Mobilizing Against Tobacco for Connecticut's Health (MATCH):

In 2003, some exemptions were made to the prohibition of smoking in public places in order for it to pass. These included Connecticut's casinos, private clubs and small businesses. It's time to rethink the reasonableness of such exemptions and the safety of the workers involved.

In a report on secondhand smoke in casinos, Berman and Post writing for the Tobacco Legal Consortium cited a 1998 study that found that casino workers in so-called “well-ventilated,” casinos had metabolized nicotine levels that were 300 to 600% higher than those in other smoking workplaces during a work shift,” There are no safe levels of Environmental Tobacco Smoke (ETS).

From a public health perspective, this is not an issue of sovereign rights, it is an issue of human rights and workers' rights.

New Jersey Group Against Smoking Pollution:

The trend of smokefree gaming is growing. More than two dozen states regulate smoking in various types of gaming venues, and nine require 100% smokefree casinos. Just last week, Nebraska voted for its smokefree air law that includes all keno venues and racetracks, and it takes effect June 2009. In 2007, Colorado's legislature eliminated their casino exemption, and Illinois' legislature enacted a 100% smokefree workplace law that included the riverboat casinos.

Regarding Tribal Nations casinos, several in North America are 100% smokefree, and compact agreements are starting to include smokefree provisions. A Washington State compact agreement includes incentives for a 100% smokefree policy. The recent Massachusetts bill to allow casinos, includes a requirement that the applicant, whether commercial or tribal, agree to provide 100% smokefree casinos.

The Surgeon General reports that the Delaware smokefree air law had no significant effect on casino revenues, and that “no peer-reviewed study using objective indicators … found an adverse economic impact of smoke free-laws on restaurants and bars.”

Ventilation is not a sound solution to the secondhand smoke problem in casinos, nor is offering separate smoking and nonsmoking sections. Both continue to expose workers and patrons to secondhand smoke.

Casinos that are 100% smokefree casinos will encourage and support employees who try to quit smoking. A casino that offers an employee smoking-cessation program, yet doesn't provide for a smokefree workplace, undermines the integrity of their cessation program, and the employer's sincerity in supporting quit-smoking efforts by their employees.

NATURE AND SOURCES OF OPPOSITION:

Mashantucket Pequot Tribe:

Just a few years ago casinos stopped distributing complimentary cigarettes and over these past years we have established and expanded non-smoking areas within the Resorts.

The appropriate way to address this issue from a governmental standpoint is through the enactment of laws by the appropriate governmental authority with jurisdiction. In the case of the tribal casinos, the appropriate authority is Tribal Government acting through its legislative bodies.

The current bill being considered by this committee is beyond the jurisdiction of the State of Connecticut.

It is not true that all of the liquor laws of the state of Connecticut are applicable at the casino. The Compact was very carefully written to provide that those laws relating to the sale and distribution of alcoholic beverages are applicable at the gaming facility. This does not include laws unrelated to sale and distribution such as prohibitions as smoking.

Section 14(b) of the Compact specifically provides that the tribal gaming operations “shall be entitled,” to a permit for the sale of liquor. Unlike any other permittee in the state of Connecticut, the tribal gaming operations are entitled to a permit. The refusal to issue or maintain a permit would be a clear violation of the Compact by the State.

It is obvious that the State would not be considering such potential action but for a labor union's attempt to exercise its influence. Unfortunately, this exercise drives a wedge between the two sovereigns which could have serious ramifications for all concerned.

Negotiation and dialogue is the safer, quicker, and most economical way to approach the subject.

The issue presented by this proposed bill has not been properly explored. To my knowledge there has been no dialogue with the Department of Revenue Services, with State Health officials, the Department of Consumer Protection or other state agencies or officials who might be interested in the subjects.

We ask the Committee to set aside this bill to avoid a confrontation we may all come to regret. At the same time we invite a discussion of these issues on an appropriate government to government basis.

Chuck Bunnell, Mohegan Tribe:

The Mohegan Tribe has always been committed to the well-being of their patrons, their employees and all of those who visit the reservation. Through the utilization of smoke-free areas and state-of-the-art ventilation systems, the Tribe has worked to enhance and improve air quality at Mohegan Sun. Today there are two exclusively smoke-free gaming areas, and smoking at Mohegan Sun is now banned in all of the restaurants, the retail stores, the entertainment venues and in most public pedestrian areas – as well as in ALL employee-only areas of the facility.

We test the air quality on a regular basis and have continually found that we exceed all federal air quality standards which are equal to or more stringent than those of Connecticut.

The State of Connecticut can not adopt legislation that would supersede the laws that The Mohegan Tribe has put in place or the language of the Compact that was signed between the State of Connecticut and the Mohegan Tribal Nation 14 years ago.

Tribal sovereignty is the core of who they are as an indigenous government recognized by the United States… it is the understanding of the fundamental rights of a people to self-governance and self-determination.

The General Assembly can not legally circumvent the Compact between the State of Connecticut or the Federal laws recognizing the Mohegan Tribe and its sovereign rights. The Compact does provide a meaningful and effective mechanism for promoting dialogue between two governments… consultation and communication.

As of now, smoking is allowed in Rhode Island gaming facilities, including the new $400 million Twin Rivers Casino, as well as the New York's Indian Casinos. While there are new restrictions in New Jersey, a portion of the gaming floor was exempted for economic reasons. Of the 8 states that rely most heavily on casino gaming revenue, none of them have adopted a complete smoking ban. It should also be noted that of all the states that have adopted smoking bans, none have sought to apply them to Indian lands because of the understanding of Tribal sovereignty.

It should be noted that a smoking ban in Washington State led to a 14% decline in revenue in non-Indian casinos. Similar results were found in Delaware and Illinois. Since a 15% drop in revenue would mean a loss of $63 million to the state, it is imperative that as the Tribe continues to expand smoke-free gaming, they do so in an economically prudent manner that also protects the thousands of jobs and associated revenue that may be placed in jeopardy.

Douglas Luckerman:

It is a well established principle of federal law that Tribal governments retain all sovereignty and jurisdiction over their lands and people not specifically withdrawn by treaty or statute. On March 15, 1994, the Secretary of the Interior granted federal recognition to the Mohegan Tribe. Federal recognition is an acknowledgement by the United States of the past and present sovereign status of that Tribal government. Federal Courts have long accepted that the United States' acknowledgement of the sovereignty of a tribal government reflects the recognition that such government has sovereign authority independent and distinct from any of the 50 States and that such Tribal government is not subject to the authority of any State absent agreement or abrogation by Congress.

It is accepted around the world that sovereign governments are entitled to make decisions according to their own rules and procedures, likes and dislikes. We respect their decisions, even if we do not agree with them. Enacting legislation solely designed to restrict the rights of another sovereign is wholly outside the rights of this State, regardless of the motivation for the intrusion.

Although the Compact says that the service of liquor is subject to state law, it also expressly provides the Tribe is “entitled,” to a liquor license. Blacks law dictionary defines “entitled,” as “to grant a legal right.” Yet, the State is acting unilaterally to encumber or remove the Tribes legal right to a liquor license outside the Compact and without negotiation or consultation.

Reported by: Joe Goldman

Date: 3/24/2008