Campione v. Adamar of New Jersey, Inc.

• Decision Date: 22 October 1993
• Citation: 274 N.J.Super. 63,643 A.2d 42
• Parties: Anthony John CAMPIONE, Plaintiff, v. ADAMAR OF NEW JERSEY, INC. t/a Tropworld Casino and Entertainment Resort, Defendants.
• Court: New Jersey Superior Court

Page 63

274 N.J.Super. 63

643 A.2d 42

Anthony John CAMPIONE, Plaintiff, v. ADAMAR OF NEW JERSEY, INC. t/a Tropworld Casino and Entertainment Resort, Defendants.

Superior Court of New Jersey, Law Division Camden County.

Decided Oct. 22, 1993.

[643 A.2d 44] F. Michael Daily Jr., Merchantville, for plaintiff (Quinlan, Dunne, Daily and Higgins, P.C., attorneys).

Thomas F. Bradley, Atlantic City, for defendant (Hankin, Sandson & Sandman, P.C. attorneys).

WEINBERG, J.S.C.

FACTS AND BACKGROUND

Plaintiff Anthony J. Campione's complaint contains three counts. The first involves a claim for malicious prosecution. Campione asserts that defendant arrested, detained and criminally prosecuted him with a malicious intent to harm resulting in bodily injuries, emotional distress and defamation of his character. In the second count, Campione asserts that the acts alleged in Count I were aimed at denying equal access to card counters of the facilities operated by the defendant. As a result, he asserts he has been denied winnings that he otherwise would have been able to realize from the play of blackjack. In the third count, Campione alleges that TropWorld's discriminatory application of Casino Control Commission Regulations governing the rules of blackjack, was intended to impact upon his individual ability to play the game. He further claims this is a breach of an implied contractual duty of the defendant to supply a fair game of chance giving fair odds. As a result, the plaintiff asserts that he has been prevented from obtaining winnings that he would have realized had defendant not violated this contractual duty.

Campione is a "card counter" ¹ who alleges that TropWorld applied Administrative Regulations N.J.A.C. 19:47-2.14 (two-hand play), N.J.A.C. 19:47-2.5 (shuffling at will); and N.J.A.C. 19:47-8.3 (minimum/maximum limits of play) to his play in a discriminatory and arbitrary manner. Plaintiff and Defendant agree that the issue before the court is whether TropWorld, in its application of specific Casino Control Commission regulations to plaintiff Campione's playing of blackjack, is in violation of New Jersey law. They disagree, however, on whether a complaint that the Commission regulations have been implemented in a discriminatory fashion necessarily calls into question the validity of the regulations themselves. The defendant asserts that to state that the regulations have been applied in a discriminatory manner is to suggest that they are invalid since they were written with the intention of giving the casinos reasonable discretion in implementing the regulations. The plaintiff asserts that to ask whether the regulations are invalid is a separate question from whether they have been implemented in a discriminatory fashion.

For the purposes of this motion, the defendant has acknowledged that it applied the Casino Control Commission regulations to plaintiff's play of blackjack because it knows that Campione is a card counter.

The Casino Control Act, N.J.S.A. 5:12-70 to -190 gives the Commission exclusive authority to regulate the casino industry. The Act includes in this mandatory area of regulation the power of "defining and limiting the areas of operation, the rules of authorized games, odds, devices permitted, and the method of operation of such games and devices." Furthermore, it states that:

All gaming shall be conducted according to the rules promulgated by the commission. All wagers and pay-offs of winning wagers at table games shall be made according to rules promulgated by the commission, which shall establish such minimum wagers and other limitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum participation by casino patrons.

[ N.J.S.A. 5:12-100(e).]

In addition, the Act gives the Commission the exclusive authority to exclude or eject certain persons from the casino establishments if such person's "presence in a licensed casino would, in the opinion of the commission, be inimical to the interest of the State of New Jersey or of licensed gaming therein." N.J.S.A. 5:12-71a(3).

As to the Commission's authority to receive and review complaints, the Act states the following:

The Casino Control Commission shall have general responsibility for the implementation of the act, as hereinafter provided, including, without limitation, the responsibility:

....

b. To conduct all hearings pertaining to civil violations of this act or regulations promulgated hereunder.

[ N.J.S.A. 5:12-63.]

The Act also gives the Division of Gaming Enforcement the power and responsibility to investigate and prosecute violations of the Act or regulations. It states:

a. The Division of Gaming Enforcement shall promptly and in reasonable order investigate all applications, enforce the provisions of this act and any regulations promulgated hereunder, and prosecute before the commission all proceedings for violations of this act or any regulations promulgated hereunder....

b. The division shall:

. . . . .

(3) Investigate violations of this act and regulations promulgated hereunder;

(4) Initiate, prosecute and defend such proceedings before the commission, or appeals therefrom, as the division may deem appropriate.

[ N.J.S.A. 5:12-76.]

Therefore, it is the responsibility of the Commission and the Division of Gaming Enforcement to enforce the Act and the Commission regulations. However, it is not stated that individual patrons may bring complaints to the Commission. Rather, the Division of Gaming Enforcement has the power to initiate proceedings from a complaint. Furthermore, the Act says nothing about the Commission's authority to provide monetary relief if it finds that a patron suffered damages as a result of either the regulations or a casino's implementation of the regulations.

According to Campione, the first incident occurred on April 27, 1989, at TropWorld. He alleges that the casino employee would not allow him to play more than one hand, although other players at the table were allowed to do so. In his complaint filed with the Casino Control Commission on April 27, 1989, Campione states:

I was playing blackjack and the person next to me was playing two hands. The Floorperson, Lisa C00778 pushed my two $5 bets back to me and instructed the dealer to "deal by me." ... When I pushed the money (two five dollar bets) back into the marked area for bets, the dealer dealt past me. I received no cards even though I had two bets on the table.

Campione asserts that this is discrimination.

The only other documented incident occurred on November 10, 1989, at TropWorld Casino, Campione stated in a sworn affidavit filed with the New Jersey Division of Gaming Enforcement that after losing several $350 bets at a table with a $25 minimum and a $1,000 maximum, a casino employee changed the limit at the table to a $10 minimum-$100 maximum. Campione then placed a $350 bet on the table. Although the casino employee at the table did not instruct Campione that his bet was above the table limit, the employee told the dealer not to pay him the full amount of his bet after Campione won the hand. Campione refused the $100 payout. He alleges that TropWorld allowed other players at the same table to play the higher limit. Campione further asserts, although this is not documented by TropWorld, that the casino used its discretion to shuffle the deck at will during plaintiff's play of blackjack prior to November 10, 1989.

For purposes of this Motion only, TropWorld admits that it has applied the Casino Control Commission regulations in the manner alleged by Campione. Furthermore, it acknowledges that it has done so because it believes plaintiff to be a card counter. However, TropWorld asserts that it is entitled to Partial Summary Judgement because Campione has failed to exhaust his administrative remedies and has failed to state a claim upon which relief can be granted.

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Defendant alleges that it is entitled to partial summary judgement because the plaintiff has not exhausted all his administrative remedies. A plaintiff generally cannot pursue judicial review if he or she has failed to exhaust all available administrative remedies. Riggs v. Long Beach Twp., 101 N.J. 515, 503 A.2d 284 (1986). However, as stated in Garrow v. Elizabeth General Hospital, 79 N.J. 549, 401 A.2d 533 (1979), one of the exceptions to this rule is that a plaintiff need not pursue all administrative remedies if doing so would be futile. As the plaintiff asserts, the exhaustion rule "rests on the premise that such remedies are clearly available, clearly effective and completely adequate to right the wrong complained of." Abbott by Abbott v. Burke, 195 N.J.Super 59, 477 A.2d 1278 (App.Div.1984), reversed on other grounds, 100 N.J. 269, 495 A.2d 376 (1985).

The plaintiff attempted to seek remedies within the administrative structure of the Casino Control Commission. However, his efforts were futile for two reasons. First, as stated in letters to plaintiff dated October 17, 1989 and February 23, 1989, from Kenneth Doss, a paralegal with the Casino Control Commission, a patron does not have a right to request a formal Commission hearing. In addition Doss stated that such a hearing may only be held if the Division of Gaming Enforcement uses its discretion to pursue administrative redress regarding an incident with a casino about which a patron files a complaint. Second, in the same letters, the Commission acknowledged that the review process does not provide any remedy for private patron complaints against casinos. The letters state:

This process is not designed to provide patrons with a forum for redress against casinos. The Commission is without authority to compel casino licensees to pay money damage to patrons, even in instances where a violation occurred. That authority rests with the courts of the State of New Jersey [Emphasis added].

Defendant argues that the letters quoted here...