Clearing the Air: Analyzing the Constitutionality of the Iowa Smokefree Air Act's Gaming-Floor Exemption

• Author: Kevin D. Sherlock
• Position: J. D. Candidate, The University of Iowa College of Law, 2010
• Pages: 04

J. D. Candidate, The University of Iowa College of Law, 2010; B.A., The University of Iowa, 2005. I would like to thank the editors and student writers of Volumes 94 and 95 of the Iowa Law Review for their editorial guidance; my parents, Daniel and Monica Sherlock, for their ongoing support; and my fiancee, Liz Damstetter, for her constant inspiration.

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I Introduction

I understand there are compelling arguments against this [smoking-ban] bill, but the bottom line is this bill will save lives, plain and simple.

—Iowa Governor Chet Culver¹

Consider the stories of Vincent Rennich, Robert Boshaw, and Kam Wong. All are former casino employees who received more than just a paycheck for the time they spent working on casino gaming floors. Mr. Rennich, a games supervisor for over twenty-five years at the Tropicana Casino and Resort in Atlantic City, New Jersey, received lung cancer.² Mr. Boshaw, a table-games dealer at Casino Rama in Ontario, Canada, acquired pneumonia, asthma, and both sinus and lung infections.³ Ms. Wong, a Baccarat dealer for over ten years at the Claridge Casino Hotel in Atlantic City lost a lung due to lung cancer.⁴ Not one of these individuals has ever smoked.⁵ Rather, the common characteristic that Mr. Rennich, Mr. Boshaw, and Ms. Wong share is their type of employment, and each of them attributes their health problems to their exposure to secondhand smoke while working on casino gaming floors.⁶ Now consider the stories of Mary Faith McConville, Katie Acuff, and Heather Crowe—all nonsmokers and all former restaurant or bar employees. In 1986, Ms. McConville began workingPage 350 in smoke-filled bars and restaurants to earn some extra income; in addition, she now suffers from chronic asthma.⁷ Ms. Acuff, a former bartender in Washington, D.C., found that during the course of her employment, illnesses would linger and her recovery periods would stall.⁸ She required multiple showers just to rid herself of the smoky smell.⁹ Ms. Crowe, the most famous of the three, died of lung cancer in 2006 following her forty-year career as a server in a Canadian restaurant that permitted smoking.¹⁰ In her final months, Ms. Crowe pleaded with lawmakers and journalists for a nationwide smoking ban in all public places, stating that she wanted to be "the last Canadian to die of secondhand smoke."¹¹ While Canada has not yet passed a nationwide ban, a week after Ms. Crowe's death, her home province enacted a ban on smoking in all public places, including workplaces.¹²

In the United States, numerous states and cities have begun to enact laws that restrict smoking in public places and workplaces, citing significant scientific findings¹³ relating to the dangers of secondhand-smoke inhalation. However, despite these "smoking bans," millions of Americans continue to face exposure to secondhand smoke in their workplaces.¹⁴ This is the result of two factors. First, some states have simply not yet enacted broad, statewide smoke-free legislation that prohibits smoking in workplaces such as bars, restaurants, and casinos.¹⁵ Second, those states that have enacted broad smoke-free legislation—protecting the lives of employees like Ms. McConville, Ms. Acuff, and Ms. Crowe—have carved out exemptions that allow smoking in other facilities to persist¹⁶—endangering the lives ofPage 351 employees like Mr. Rennich, Mr. Boshaw, and Ms. Wong. When Iowa state legislators enacted the Smokefree Air Act in April of 2008, Iowa fell into the second group, exempting from its smoking ban, among other places, casino gaming floors.¹⁷ By placing the lives of thousands of casino employees¹⁸ across the state in grave danger while protecting the lives of employees in nearly every other public workplace, and by treating one industry differently than all others, the Act's exemption is arguably in violation of the Iowa Constitution.

In Iowa, there are two possible ways to remove the gaming-floor exemption from the Act: (1) the legislature could amend the Act or (2) a court could remove the exemption after finding it in violation of the Iowa Constitution. Legislators are unlikely to remove the exemption anytime soon,¹⁹ and therefore, the fate of the Act's exemptions lies solely with the courts. Should a court find itself in a position to decide this issue, this Note could provide guidance toward the most equitable result.

Part II first presents the policy reasons for and against enacting smoking bans that exempt casinos and other gambling institutions and discusses the general dangers of secondhand smoke and the increased risk that casino workers face in the casino environment. Part II also presents the recent trends of statewide smoking bans across the country and exhibits the lack of protection that several state smoking bans afford to casino employees. Part III introduces Iowa's Smokefree Air Act and discusses a highly publicized, but ultimately ineffective, challenge to the Act.

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Part IV looks past the policy reasons to focus on the constitutionality of the Iowa Act's gaming-floor exemption. By positing a new framework for an Iowa court to decide the constitutionality of the Act's exemption in a state equal-protection challenge, this Note illustrates an Iowa court's ability to remove the exemption. In deriving this framework, the discussion centers on a 2004 Iowa Supreme Court decision in which an Iowa court laid out two nontraditional options for analyzing claims arising under the state's equal-protection clause. Additionally, Part IV focuses on two non-Iowa decisions in which a Kentucky circuit court and the Nebraska Supreme Court both applied one of these nontraditional analyses to strike down gambling-related exemptions to smoking bans. While this Note recognizes that an Iowa court could apply both options, it demonstrates that only the Nebraska court's analysis would allow an Iowa court to strike down the Act's gaming-floor exemption. This Note argues—putting policy reasons and emotional debates aside—that an Iowa court should employ a new analysis, such as the Nebraska test, to find the Act's gaming-floor exemption unconstitutional because the exemption represents the fundamental injustice that state equal-protection clauses are aimed at curing—favoritism toward, and the granting of special privileges to, certain industries and certain employees.

II The Policy Reasons for Protecting Nonsmokers from Secondhand Smoke and Excluding Casino Employees from Protection

A The Well-KnownDangers of Secondhand Smoke

Secondhand smoke, also known as environmental tobacco smoke, is a combination of the smoke from the burning end of a cigarette, pipe, or cigar and the smoke exhaled from the lungs of smokers.²⁰ Nonsmokers involuntarily inhale secondhand smoke, which remains in the air for hours and "can cause or exacerbate a wide range of adverse health effects, including cancer, respiratory infections, and asthma."²¹

In 1986, the U.S. Surgeon General first noted the dangers of secondhand smoke in The Health Consequences of Involuntary Smoking, which concluded that secondhand-smoke exposure caused lung cancer among nonsmoking adults and numerous respiratory problems among children.²² In 1993, the Environmental Protection Agency ("EPA") recognized secondhand smoke as "a known human carcinogen."²³ In 2005, thePage 353 California EPA estimated that, among adult nonsmokers, exposure to secondhand smoke contributes to roughly 3400 lung-cancer deaths and as many as 69,600 heart-disease deaths each year in the United States.²⁴ Twenty years after its 1986 report on the dangers of secondhand smoke, the Surgeon General issued an updated report on the effects of secondhand smoke. This 2006 report further declared, based on scientific evidence, that "there is no risk-free level of exposure to secondhand smoke."²⁵ The 2006 report concluded that policies completely prohibiting smoking are the only "effective way to eliminate secondhand smoke exposure in the workplace."²⁶

B The Increased Danger Facing Casino Employees

While it seems indisputable that a casino employee who continually works in front of lit cigarettes is exposed to a higher level of secondhand smoke during a work shift than, say, an accountant, numerous studies quantify the disparity and illustrate the serious risk that casino employees routinely face. The studies are unanimous: casino employees represent the occupational group...