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Lottery Machine Does Not A Casino Make

January 11, 2016 Featured, Politics/Policy, Smoke Free, South City 25 Comments

Late last month a bar owner filed suit to stop enforcement of the smoking ban following the expiration of a previous exemption, which expired on January 2nd. Judge Dowd grated a temporary restraining order (TRO) until a hearing could be conducted — that hearing is scheduled for 10am today.

The exemptions are expiring for bars that make 25 percent or less of their income from food, are no larger than 2,000 square feet and do not allow anyone under 21 inside. But exemptions exist indefinitely for casino gaming areas, private clubs with no employees and tobacco retail stores. Bar owners who participate in Missouri Lottery’s keno program claim they can be considered a casino gaming area. The game requires the bars to be licensed as such. (Post-Dispatch)

So the argument is because they have a Club Keno game from the Missouri Lottery they should be exempt — just like a casino. Judge Dowd will, no doubt, look at St. Louis ordinance and Missouri law. Let’s take a look ourselves.

The Trophy Room, 5099 Arsenal. Click image to view location in Google Maps
The Trophy Room, 5099 Arsenal. Click image to view location in Google Maps

St. Louis’ Smoke Free Air Act, passed in 2009, can be found here. In the definitions we see:

3. “Casino gaming area” means the area of a state-licensed gambling facility where gaming is allowed for those 21 years of age or older, including any VIP lounge, accessible only through the game floor, whether or not gaming is allowed in the VIP lounge.

Casino gaming area, not lottery area.

Section 7 of the Smoke Free Act is where “smoking is not regulated”, in the list is:

6. Casino gaming areas as defined by this Ordinance.

The ordinance uses the word “casino”, not lottery. Missouri law for the lottery is under different sections than for casinos, the Gaming Commission is totally separate from the Lottery Commission.

As you may know, the number of casino licenses in Missouri is limited to 13, from December 2010:

The Missouri Gaming Commission gave the green light to Creve Coeur-based Isle of Capri Corp. to build the state’s 13th casino just north of downtown Cape. After hearing passionate pitches for months, the commission made its decision quickly, quietly and unanimously. (Post-Dispatch)

The City of St. Louis went from two to one licensed casino when the casino on The President Casino on the Admiral closed.

Judge Dowd will, presumably, consider the legislative intent behind the Smoke Free Act — to exempt the two, now one, casino.

— Steve Patterson


Currently there are "25 comments" on this Article:

  1. The use of the word casino here is irrelevant, because the ordinance redefines it. If a statute redefines “banana” to mean “apple”, then it means “apple.” It’s the new definition that matters.

    This will actually turn on the words “gambling facility”. You can make an argument that that implies a space primarily dedicated to gambling (i.e, a casino), rather than just a place where gambling may occur in addition to a range of other activities. That’s the argument the city’s lawyers need to make. The presence of “game floor” further down is also significant, since it also implies a casino rather than a bar.

    The counter argument is that if they meant casino, they could have just said casino as licensed under the state law permitting them. Instead they went with an arguably more expansive definition.

    I wouldn’t count on legislative intent to save this- a lot of judges will enforce a poorly constructed law as it’s written, or toss it for vagueness.

    If I were giving odds, I’d give the plaintiffs 60-40.

  2. Mark-AL says:

    The problem that I have with the current ordinance is that smoking exemptions of any kind are granted to any business of any kind….and for no apparent good reason. Why should a gambler in a building at one end of a city block be allowed to gamble and smoke, while a pool player in a building at the other end of a city block be prohibited from smoking? Gaming lobbyists were successful in negotiating the exemption because…..(drum roll)……of big money. That, in my opinion, is the weak link in the chain of events that resulted in the smoking ordinance. Let’s hope Judge Dowd throws out the entire ordinance, then pens another one that gives every bar and casino operator the right to declare his establishment’s smoking policy. It’s odd to me that a bunch of democrats would be so….controlling.

    • So you object to the exemption for businesses who primarily sell tobacco products?

      • Mark-AL says:

        I support this: that ALL businesses (smoke shops, cigar clubs, bars, casinos) declare themselves as either “smoking” or “non-smoking” and that that declaration be honored under the ordinance. Patrons can then make their decision to patronize or not to patronize each establishment. Man has come of age! Somehow we need to convince government that we don’t need a backup in our bedrooms.

        • It’s about workplace conditions for employees. Smoke in A smoke shop is to be expected. I know you can eat & drink in a smoke-free environment. I have no problem removing the exemption for casinos — people can lose their money in a smoke-free casino.

          • Mark-AL says:

            I can choose to eat or not eat in a smoking or non-smoking restaurant. A sign on the door will alert me when I approach the building. And potential employees can also decide to work in a smoking environment, or to find another workplace. During the summer following my sophomore year of college, I landed a government job monitoring dynamic compaction on a construction project. It was a dream job until I realized the operation was adversely affecting my hearing. So I decided to finish out the summer (because of the $$$) and do something different the next summer. I made my decision based on my intuition and personal observation about workplace conditions. We have to let go and allow ourselves to make our own decisions.

          • Because a female server who becomes pregnant can easily find another job?

          • Mark-AL says:

            If I had been born with two noses and three feet, I probably couldn’t land a job in the fashion industry. But there would be a job for me in another–maybe entertainment. Why knows? The point is that “others” should not protect us from every eventuality. Why should a business be FORCED to alter its business model because one of its waitresse

          • It’s about the health of all workers. A century ago you’d have probably argued if Triangle Shirtwaste workers wanted unlocked escape doors they should’ve quit and gotten a job elsewhere: https://en.m.wikipedia.org/wiki/Triangle_Shirtwaist_Factory_fire

          • Mark-AL says:

            My immediate reaction is that the Triangle Shirtwaste management team didn’t ADVERTISE to their personnel that they were locking the fire exit doors and that if the building burns, the personnel would likely burn along with it. On the front door of the factory, they probably didn’t hang a sign with read: ALL FIRE EXITS ARE LOCKED. IN A FIRE, YOU WILL BE SUBJECT TO DEATH BY FIRE! (It almost sound Robert Frost(ian), doesn’t it?) In the case of designating a bar or restaurant as a “smoking establishment,” potential employees would likely already be aware of any risks involved, and even if they are, a procedure as simple as a pre-employment conference could easily be scheduled for each potential employee, clearly pointing out any potential health risks and presenting each candidate with a “hold harmless” agreement to sign–as a condition for employment. And a sign could easily be placed on the door declaring the establishment as SMOKING ALLOWED…and the surgeon general….says that smoking can be harmful to your health….” When you go into the hospital for both elective and required surgery, you sign an agreement holding the patient care giver harmless. Even an outpatient scheduled for a routine colonoscopy can die on the table if the physician accidentally punctures the colon. Based on the most current research, 2nd hand smoke cannot DEFINITIVELY be linked to cancer or lung disease.We take risks in life. My own profession exposes me to certain real risks. If I don’t like the odds those risks expose me to, I should find another profession. Based on current research, it would seem likely that the chances of a butcher cutting off a few fingers during the workday are higher than a bartender’s chances of being harmed while working in a smoking lounge. Should we outlaw meat in the US? Or guns, because, in the wrong hands, they can take out innocent lives?

            Why not give the power to the people and keep it out of the control of Big Brother? We just can’t continue to coddle and protect those among us who want to work for a living, because if we do, we’ll end up with an entire society that sits at home every day sponging off the government. I don’t think your Triangle Shirtwaste comparison is valid.

          • Are you suggesting if an employer posts the workplace hazards the government should allow them to exist? Even if that means the taxpayer must foot the bill to cover the exposure to said risk by workers desperate for a paycheck!

          • Todd Spangler says:

            The chemical industry has similar issues with employees working in potentially hazardous environments and is mandated by law to alleviate and minimize those risks to employees — some number of those chemicals not even being as noxious as tobacco smoke, or on a long term basis, as detrimental to health. The general trend towards eliminating smoking in public spaces and workplaces is a good one, if for no other reason than the health of employees.

          • Mark-AL says:

            “similar issues”? What do you mean? Do you mean that they post hazardous warning signs, but allow employees to work in the hazardous environment?

            Eliminating smoking is a good thing, IMO. But the government doesn’t have the right, IMO, to tell me what risks I can and cannot take. And the government certainly doesn’t have the right to allow smoking in one gathering place (casino) or in a smoke shop (where employees are present), vs not allow smoking in a corner bar equipped with a pool table, frequented by smokers who like to smoke!

          • Todd Spangler says:

            No, in the case of a chemical with some sort of known hazard, companies have the option of either substituting another material that is more innocuous, reducing employee exposure with engineering controls (fume hoods, glove boxes, etc.), or as a last resort, requiring the employee to use whatever PPE (personal protective equipment) is necessary to eliminate the hazard to the employee. Exposing employees to hazardous materials with no protection is never acceptable and may be grounds for a large fine from OSHA, particularly if an employee winds up injured or killed due to the hazard.

            I think the casinos have been given more leniency due to concerns about the potential negative impact on government revenues by eliminating smoking in those venues. I’m not sure those fears are well-founded, but, in any event, my feeling is that an industry of this size and scope, employee health concerns should be the overriding factor. I know that smoke shops have employees also, but…. it isn’t a perfect world — I am okay with the exemption for establishments with a legitimate business of this type. Compromises occasionally need to be made in the interests of political viability.

          • Mark-AL says:

            Use your second paragraph to rationalize the inequity you describe and condone to the middle-class bar owner on Nebraska Avenue who relies on a full house of smokers, drinkers and pool players in order to keep his business viable so that he can feed his family. What right does the government have to allow hazardous activity to occur in a casino just so they can collect their revenues? Your “perfect world” certainly falls short of perfection for the working man. It almost smells of kickbacks, nepotism and more kickbacks.

          • Todd Spangler says:

            No, I said that employee health concerns should be the overriding factor in casinos — I had thought it clear I was implying that the casinos should not get the exemption they currently do. I would only give an exemption to legitimate smoke shops. The bar owner on Nebraska would be on the same level playing field as all the other bars in the area — if he has a lot of customers who are smokers, I would suggest he set up an outdoor patio area for them to smoke as many of the bars I visit have done.

          • Mark-AL says:

            But unfortunately, exemptions are being given to casinos. So where does that leave the Nebraska Ave. bar owner? He’s paying the price, while the casino is raking in the $. And how does the Nebraska Ave bar owner accommodate his smoking customers on the outside patio in Dec, Jan, Feb and March in the St Louis climate ( while customers are puffing away in air conditioned happiness at the casino?) The Nebraska Ave owner still has to feed his family,

          • Mark-AL says:

            No. I’m not. I think you may be over generalizing what I wrote. I’m saying that, in the case of smoking where there is no current definitive link to cancer, that a sign should be posted alerting potential customers and employees that smoking is allowed in a particular establishment: “to enter at your own risk.” That is, essentially, what is done on cigarette packaging today. The government requires a statement on all packs and cartons to inform the user that smoking MAY be harmful. The government allows cigarette sales, provided the warning is clearly printed on the packaging. Why not let the employee/customer decide? Why does government have to do it for him?

            And, with “footing the bill” to cover exposure, I assume you are referring to medical treatment and to any litigation that may result from exposure. In the first case, under Obama’s Law, everyone is supposed to be insured. If they’re not, they’re not in compliance and SHOULD suffer any consequences for that! In the second case, there should be no basis for litigation, since the sign has been posted and the buyer/user/worker have been so advised.

          • Mark-AL says:

            “Smoking” in a restaurant that advertises that it allows smoking is also to be expected! Employees of the smoke shop are subject to the same smoke that they’ll find in a smoking restaurant. Probably more! And are you saying that a young female worker who elects to work in a smoke shop isn’t subject to getting pregnant? And what does “losing their money” have to do with anything? I can lose my money by being overtaken by the Holy Spirit at the Lot Road Baptist Church!

          • JZ71 says:

            As someone, a non-smoker, who ended up working in a casino for five years (thanks, recession), I can see both sides of the workplace argument, having experienced it, directly. I took the job, willingly, knowing well that working around smoking and smokers was a part of the job description. At that time, there were few, very few, other options, especially one that didn’t require going back to school, that paid much more than minimum wage – basic supply and demand. These days, it’s a different story (way more options). When options are few, potential employees are forced to, and do, make more compromises; when options are many, employees can be more picky and/or demanding about their working conditions. The question is that even “fair”?! And, reality check, most jobs carry health risks – sitting at a computer screen and pushing a mouse all day can easily make one obese and degrade one’s eyesight.

            The real challenge is determining what role, IF ANY, government should play in a) identifying risks, b) assessing risks, c) limiting risks, thru regulation, d) actively (and fairly) enforcing said regulations, and e) evolving as both the understanding of risks evolve and the community expectation of limiting risks evolves.

            Personally, I’m torn on the current regulations. I don’t like being around smokers, and I find the practice to be pretty obnoxious, but I also have a real problem with the governmental hypocricy on the issue, both heavily taxing the product (and allowing widespread distribution) while imposing increasingly-stringent regulations on tobacco users. If it’s truly as dangerous as some people say, then go ahead and ban it, completely. But if it’s only mildly dangerous / relatively benign, like alcohol or marijuana, then government needs to back off. Life is a fatal disease, we’re all going to die from SOMETHING! I don’t want to live in a world where the government tries to “protect” each of us from any and every potential harm.

            Smoking is bad. Gambilng is bad. Beer is bad. Red meat is bad. Sugar is bad. Speeding is bad. Life is inherently dangerous – be careful, make educated choices. If people in St. Louis want to gamble in a smoke-free environment, they can go to the Alton Belle or the Casino Queen. If smoking is important (or they don’t care about being around smokers), they can go to Ameristar, Hollywood, Lumirere Place or River City. If you want to drink, both the city and the county have many, many, many bars – you won’t go thirsty, no matter what your smoking preferences may be, as either a patron or an employee! This is just another example of absolutism in politics – it used to be, we could agree to disagree; now, we apparently need total domination and total vindication . . .

          • Mark-AL says:

            …so when the options are many for employees, employers will have to decide then to change their smoking policies or close the doors… It seems so simple to me, but I’m just a goat farmer at heart.

  3. gmichaud says:

    I’m not a smoker, I stop by the Trophy Room occasionally and I am aware of the smoking. I might be ok with a total ban of there weren’t exemptions. It’s absurd certain businesses are exempt. I agree people who work there should not be subject to smoke, although for the most part the workers appear to be smokers too. So where do you make the cut off, one in 20, one in 100 of potential employees are offended?
    This starts to get into a gray area. Should football be banned because of serious injuries that are the result? Certainly the percentage of impacted players is at or far above health impacts of nonsmokers working somewhere like a bar.
    In the last few years there have also been advances in smoke elimination, ventilation and so on, these are factors to consider also.
    In fact the casino is far more likely to have either clientèle or workers who are impacted and offended by smoke over a small business where everyone is familiar their surroundings. If anything the exemption makes more sense for a neighborhood business that customers are familiar with.
    It just gets to the point where government overreach, or even “purity” becomes undesirable in its pursuit.
    Especially when it turns out the “judges” and “law makers” somehow always manage to help out the “big” “connected” corporate insiders while ignoring the small businessman.
    What should really change is the Trophy Room should be allowed to have slot machines. What we have right now are casinos in cooperation with the government creating monopolies to direct all the profits of gambling to a select few. If gambling is good for society then it should be good enough for the small businessman to make a profit also.
    It is no different than smoking.

  4. Mark-AL says:

    I’m leaving for Munich tomorrow, where despite strict no-smoking laws, locals light up just about anywhere they want to. But the German government has more on their plate than dealing with smoking violations. Muslim refugees there are overtaking businesses and hospitals, murdering emergency care givers and anyone else they have an inkling to act out against(I guess all in the name of Allah, or whatever). My sons’ school in Cologne has been temporarily closed until the climate improves. Maybe we should think twice before we open up the US to the refugees.,,,,just sayin’!

  5. Steven Simpson-Black says:

    Wouldn’t it just be simpler to declare all indoor public spaces to be smoke-free? It hasn’t killed business where I live. In fact, restaurants do better smoke-free because tables turn faster. I would argue many places do better smoke-free. The casino in Peoria, IL was packed the other night. No smoking indoors there, at all. They designate an area at the end of the boat for smoking, outdoors on the deck. What’s nice about that is I don’t have to sit at a smokey table, and also people walk away from tables more, freeing valuable seats (I have had to wait for a seat at a card table).

    • JZ71 says:

      Short answer – yes! Longer answer – just like the tax code, once you make one exception, other entitites will seek, and some will get, more exceptions. Everyone that currently receives special treatment will fight vigorously to keep that special treatment, it’s just human nature (and likely, a smart business decision). The real issue is how effective is government in **trying** to regulate human behavior? And, what are the actual results, how successful are they? They may have created a “perfect scenario”, with smoking, with 20% of the population addicted to a product that can also be highly taxed – the government can be both sanctimonious and greedy, at the same time!


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