BSI casino smoke scuffle comes down to what ‘enclosed’ means

A group of House minority lawmakers has written to public health officials to complain about the alleged violation of the anti-smoking law by Best Sunshine International, Ltd.’s temporary casino in T Galleria, which they’ve described as an “unenclosed smoking facility that exudes toxic secondhand smoke and must be dealt with immediately.”

In turn, on the same day last Thursday, Saipan casino regulators urged casino executives for a prompt resolution to the matter to comply with public law.

In a response to casino regulators, Best Sunshine lawyer Viola Alepuyo argued yesterday that no law currently exists to ban smoking in casinos. Rather, Alepuyo said, the casino is in fact an “enclosed area,” and if gaming floors at the Tinian Dynasty Hotel & Casino can be exempted from smoking bans, then Best Sunshine must also be exempted.

In a letter last Thursday to Public Health Services director Margaret Aldan, six Independent Saipan lawmakers—Reps. Edwin K. Propst, Lorenzo Deleon Guerrero, Blas Jonathan “BJ” T. Attao, Edmund S. Villagomez, Ralph N. Yumul, and Vinson F. Sablan—called for “immediate action” to address the alleged violation.

Public Law 16-46—or the Smoke Free Air Act—allows for smoking on gaming floors provided that the facility is “enclosed.”

The six lawmakers said that since July—when the Best Sunshine Live temporary casino opened—and as early as August—when health officials inspected the facility over the alleged complaints—the casino remains unenclosed, although Best Sunshine disputes that opinion.

In an email, Propst said he has met with a Bureau of Environmental Health official and was told that they have inspected Best Sunshine Live on two separate occasions after receiving complaints about the amount of secondhand smoke that emanates into the T Galleria and the Hard Rock Café—both adjacent shopping and restaurant establishments.

“He agreed that they are in violation of Public Law 16-46,” Propst said. He did not identify the BEH official.

Propst said he also met with assistant attorney general David Lochabay and was informed that Lochabay has met with Best Sunshine lawyers on the matter. He said that Lochabay also agreed that the casino was in violation of public law.

Propst said Lochabay and Division of Public Health-NCD Bureau administrator Becky Robles are drafting a letter to educate the casino about the harmful effects of secondhand smoke.

“Since the opening of the casino, employees and visitors to the T Galleria and Hard Rock Café and the Noodle House near the gaming floor have been subject to toxic secondhand smoke,” the lawmakers said.

“…This health hazard must be dealt with immediately,” said the lawmakers—who form part of the minority bloc in the House—in their letter to DPH. “Plans of installing air curtain walls can be discussed and debated, but nothing can justify the blatant violation of public law, especially one that is supposed to protect the health of the people within our community.”

Phone calls requesting comment from Public Health Services director Aldan were not immediately responded to yesterday. Staff said she was in meetings.

‘Ridiculous’

In his email, Propst called the casino’s alleged violation of public law “absolutely ridiculous.”

“The law is the law, and what is clear and evident is that Best Sunshine Live is flagrantly violating Public Law 16-46…We need to know is why there have been zero fines assessed to Best Sunshine Live and why they have not been told to stop all smoking in their gaming facility since they have failed to provide an enclosure for their casino.”

Propst said even if the casino is considered as a “live training facility” and not a casino, they are still breaking the law.

Propst and the lawmakers copied Attorney General Ed Manibusan, BEH, Public Health Services, and the Commonwealth Casino Commission in their letter. Propst asked that they to address the issue immediately and “stop Best Sunshine Live from continuing to thumb their nose at our laws.”

Regulators call for action

In a letter to the casino last Thursday, the Commonwealth Casino Commission said they have discussed the matter with the casino in the past few months, and asked for an update on the developments and meetings with Public Health officials.

‘The commission has expressed similar concerns on the health-risks from secondhand smoke exposed to the employees and patrons… We look forward to your prompt resolution on this matter” and “prompt compliance with the Smoke Free Air Act,” said commission chair Juan M. Sablan.

No violation of law

However, in response to casino regulators yesterday, Alepuyo asserted that the Smoke Free Air Act does not regulate smoking in “enclosed gaming areas of casino establishments.”

She cited this definition in the Commonwealth Code: “‘Enclosed area’ means an area or space bounded by walls, with or without windows, continuous from floor to ceiling and enclosed by one or more doors, including but limited to an office, function room, or hallway. If an outdoor area…has a structure capable of being enclosed by walls or covers, regardless of the materials or removable nature of the walls or covers, the area will be considered enclosed when the walls or covers are in place.”

Citing this definition, Alepuyo said Best Sunshine Live meets the requirements.

“Best Sunshine Live is an area or space that is bounded by walls; some of the walls in our area have windows and some do not; some of the walls in our area flow all the way from the floor to the ceiling; and some of the walls in our area are enclosed by more than one door,” she stated.

Airports versus casinos

Alepuyo compared laws regulating smoking in Commonwealth airports to laws for a casino. She notes that smoking is allowed “at the departure terminal of Commonwealth airports” provided it is in a “fully enclosed and well-ventilated area.”

She said the Legislature intended to differentiate between the “enclosed area” they defined for casinos and the “fully enclosed” areas they envisioned for the airports.

Designated smoking areas in airports must be “fully covered” by walls with or without windows, from floor to ceiling with one or more doors—but not for smoking in casinos, she said.

“The Legislature intended that ‘fully enclosed’ areas at the airport means an area that is self-contained, unlike that of a casino.”

‘Take heed’

Alepuyo also noted that one of the lawmakers who signed the letter to DPH was Rep. Edmund Villagomez, then chairman of the House Committee on Commerce and Tourism in 2009, part of the same body of lawmakers who enacted Public Law 16-46 and then debated and passed an amendment to it less than two years later to “increase and allow smoking in 30 percent of all hotel and motel rooms and their balconies.”

Citing Villagomez’s committee report from the 17th Legislature, Alepuyo noted that these lawmakers found that increasing the amount of smoking rooms may “greatly benefit” and “assist our ailing economy.”

Citing legislative record, Alepuyo noted that the House and Senate ended up in a conference committee to resolve their impasse over the bill.

The resolution—as cited in the conference committee report—notes the importance of generating revenues at airports and granting some convenience to tourists. The report highlights the casino industry on Tinian and the emerging one on Rota, to note the need to permit smoking in fully enclosed, well-ventilated areas in CNMI airports, and “to allow smoking in the gaming areas of casino establishment.”

“Coalition members did not object to this amendment,” Alepuyo said.

Tinian Dynasty vs Saipan casino

Alepuyo said the same law that exempts the Tinian casino must be applied to Best Sunshine’s casino, noting that when PL 16-46 was enacted in 2009, Best Sunshine Live was not even in the planning stage. Tinian had the only operating casino in the CNMI, she said.

She said the Tinian casino has an entrance that is open to the lobby and that there is a bar and a restaurant inside the casino itself, and that the smoking law as intended exempted the casino on Tinian.

“Best Sushine Live has the same layout,” Alepuyo said. “Because Tinian Dynasty and Best Sunshine Live are both casinos; because the layout of the Tinian Dynasty Casino and Best Sunshine Live are the same; and because the law on smoking exempted the Tinian Dynasty, so must the law exempt Best Sunshine Live.”

The rest of her letter notes that a working committee will be formed with DPH, the Attorney General’s Office, casino regulators, and the Department of Public Works to make sure they comply with ‘applicable laws” and uphold their integrity. It also notes that they upgraded their ventilation system and are planning to install air curtain walls to mitigate the entry of smoke into the nearby shopping malls and restaurant.

In an email response to a request for comment last night, Propst said: “I read through the long and lengthy response from…Alepuyo regarding Public Law 16-46. I am disheartened that she is putting profits over the health of Best Sunshine’s employees, as well as the health of the employees at T Galleria and Hard Rock Cafe. The ‘live training facility’ is not enclosed. If it were enclosed, why is there so much secondhand smoke pouring into T Galleria and Hard Rock? Who exactly is Ms. Alepuyo and Best Sunshine Live trying to fool here? …Perhaps we will need to go to court and have a judge issue an opinion here. I am willing to do this if it means ensuring that Public Law 16-46 is being followed and that we are protecting employees and patrons of T Galleria and Hard Rock Cafe. The law is the law, and no one is above the law.”