Uston v. Resorts Intern. Hotel, Inc.

• Decision Date: 05 May 1982
• Citation: 445 A.2d 370,89 N.J. 163
• Parties: Kenneth S. USTON, Respondent, v. RESORTS INTERNATIONAL HOTEL, INC., Appellant, and New Jersey Casino Control Commission, Intervenor-Appellant, and Atlantic City Casino Hotel Association, Intervenor-Appellant.
• Court: New Jersey Supreme Court

Page 163

89 N.J. 163

445 A.2d 370

Kenneth S. USTON, Respondent, v. RESORTS INTERNATIONAL HOTEL, INC., Appellant and New Jersey Casino Control Commission, Intervenor-Appellant and Atlantic City Casino Hotel Association, Intervenor-Appellant.

Supreme Court of New Jersey.

Argued Feb. 9, 1982.

Decided May 5, 1982.

Joel H. Sterns, Trenton, for appellant Resorts Intern. Hotel, Inc. (Sterns, Herbert & Weinroth, Trenton, attorneys; John M. Donnelly, Trenton, on the briefs).

Matthew P. Boylan, Roseland, for appellant Atlantic City Casino Hotel Ass'n (Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, attorneys; Clive S. Cummis, Newark, Morris Brown, Edison, Nicholas L. Rubis, Alfred J. Luciani, John Walker Daniels, Atlantic City, David M. Satz, Jr., Newark, Martin L. Blatt, Atlantic City, and Charles C. Carella, Newark, of counsel).

Michael A. Santaniello, Sr. Asst. Counsel, Trenton, for appellant New Jersey Casino Control Com'n (Robert J. Genatt, Gen. Counsel, Lawrenceville, on brief and attorney; R. Benjamin Cohen, Newark, and Michael A. Santaniello, of counsel and on brief; Anthony J. Sposaro, West Orange, on the briefs.

Morris M. Goldings, Boston, Mass., a member of the Mass. bar, and Kenneth F. Hense, Point Pleasant, for respondent (Reed & Hense, Point Pleasant, attorneys; Morris M. Goldings and H. Glenn Alberich, Boston, Mass., members of the Mass. bar, of counsel; Kenneth F. Hense, Point Pleasant, on the brief).

Irwin I. Kimmelman, Atty. Gen., for amicus curiae Dept. of Law and Public Safety, Div. of Gaming Enforcement (Irwin I. Kimmelman, Atty. Gen., attorney; Anthony J. Parrillo, Deputy Atty. Gen., of counsel; Stephen C. Becker and Mary L. Cupo, Deputy Attys. Gen., on the brief).

John Walker Daniels, Atlantic City, submitted a letter in lieu of a brief on behalf of amicus curiae Harrah's Marina Hotel Casino (Horn, Kaplan, Goldberg & Gorny, Atlantic City, attorneys; Philip G. Satre, Atlantic City, a member of the Nevada bar, of counsel).

The opinion of the Court was delivered by

PASHMAN, J.

Since January 30, 1979, appellant Resorts International Hotel, Inc. (Resorts) has excluded respondent, Kenneth Uston, from the blackjack tables in its casino because Uston's strategy increases his chances of winning money. Uston concedes that his strategy of card counting can tilt the odds in his favor under the current blackjack rules promulgated by the Casino Control Commission (Commission). However, Uston contends that Resorts has no common law or statutory right to exclude him because of his strategy for playing blackjack.

We hold that the Casino Control Act, N.J.S.A. 5:12-1 to -152 gives the Commission exclusive authority to set the rules of licensed casino games, which includes the methods for playing those games. The Casino Control Act therefore precludes Resorts from excluding Uston for card counting. Because the Commission has not exercised its exclusive authority to determine whether card counters should be excluded, we do not decide whether such an exclusion would be lawful.

I

Kenneth Uston is a renowned teacher and practitioner of a complex strategy for playing blackjack known as card counting. ¹ Card counters keep track of the playing cards as they are dealt and adjust their betting patterns when the odds are in their favor. When used over a period of time, this method allegedly ensures a profitable encounter with the casino.

Uston first played blackjack at Resorts' casino in November 1978. Resorts took no steps to bar Uston at that time, apparently because the Commission's blackjack rules then in operation minimized the advantages of card counting.

On January 5, 1979, however, a new Commission rule took effect that dramatically improved the card counter's odds. N.J.A.C. 19:47-2.5. The new rule, which remains in effect, restricted the reshuffling of the deck in ways that benefitted card counters. Resorts concedes that the Commission could promulgate blackjack rules that virtually eliminate the advantage of card counting. However, such rules would slow the game, diminishing the casino's "take" and consequently its profits from blackjack gaming.

By letter dated January 30, 1979, attorneys for Resorts wrote to Commission Chairman Lordi, asking the Commission's position on the legality of summarily removing card counters from its blackjack tables. That same day, Commissioner Lordi responded in writing that no statute or regulation barred Resorts from excluding professional card counters from its casino. Before the day had ended, Resorts terminated Uston's career at its blackjack tables, on the basis that in its opinion he was a professional card counter. Resorts subsequently formulated standards for identification of card counters and adopted a general policy to exclude such players. ²

The Commission upheld Resorts' decision to exclude Uston. Relying on Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 148 A.2d 1 (1959), the Commission held that Resorts enjoys a common law right to exclude anyone it chooses, as long as the exclusion does not violate state and federal civil rights laws. The Appellate Division reversed, 179 N.J.Super. 223, 431 A.2d 173 (1981). Although we interpret the Casino Control Act, N.J.S.A. 5:12-1 to -152 somewhat differently than did the Appellate Division, we affirm that court's holding that the Casino Control Act precludes Resorts from excluding Uston. The Commission alone has the authority to exclude patrons based upon their strategies for playing licensed casino games. Any common law right Resorts may have had to exclude Uston for these reasons is abrogated by the act. We therefore need not decide the precise extent of Resorts' common law right to exclude patrons for reasons not covered by the act. Nonetheless, we feel constrained to refute any implication arising from the Commission's opinion that absent supervening statutes, the owners of places open to the public enjoy an absolute right to exclude patrons without good cause. We hold that the common law right to exclude is substantially limited by a competing common law right of reasonable access to public places.

II

This Court has recognized that "[t]he statutory and administrative controls over casino operations established by the [Casino Control] Act are extraordinarily pervasive and intensive." Knight v. Margate, 86 N.J. 374, 380-81, 431 A.2d 833 (1981). The almost 200 separate statutory provisions "cover virtually every facet of casino gambling and its potential impact upon the public." Id. at 381, 431 A.2d 833. See Bally Mfg. Corp. v. N. J. Casino Control Comm'n, 85 N.J. 325, 426 A.2d 1000 (1981) (upholding Commission regulation barring a licensed casino from acquiring more than 50% of its slot machines from any one manufacturer). These provisions include a preemption clause, stating that the act prevails over "any other provision of law" in conflict or inconsistent with its provisions. N.J.S.A. 5:12-133(b). Moreover, the act declares as public policy of this State "that the institution of licensed casino establishments in New Jersey be strictly regulated and controlled." N.J.S.A. 5:12-1(13).

At the heart of the Casino Control Act are its provisions for the regulation of licensed casino games. N.J.S.A. 5:12-100 provides:

... e. All gaming shall be conducted according to 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; ....

This provision on games and gaming equipment reinforces the general statutory provisions codified at N.J.S.A. 5:12-70. Those provisions provide in part:

The Commission shall, without limitation on the powers conferred in the preceding section, include within its regulations the following specific provisions in accordance with the provisions of the act;

* * *

* * *

f. Defining and limiting the areas of operation, the rules of authorized games, odds, and devices permitted, and the method of operation of such games and devices; ....

Pursuant to these statutes, the Commission has promulgated exhaustive rules on the playing of blackjack. N.J.A.C. 19:47-2.1 to -2.13. These rules cover every conceivable aspect of the game, from determining how the cards are to be shuffled and cut, N.J.A.C. 19:47-2.5, to providing that certain cards shall not be dealt "until the dealer has first announced 'Dealer's Card' which shall be stated by the dealer in a tone of voice calculated to be heard by each person at the table." N.J.A.C. 19:47-2.6(g). It is no exaggeration to state that the Commission's regulation of blackjack is more extensive than the entire administrative regulation of many industries.

These exhaustive statutes and regulations make clear that the Commission's control over the rules and conduct of licensed casino games is intended to be comprehensive. The ability of casino operators to determine how the games will be played would undermine this control and subvert the important policy of ensuring the "credibility and integrity of the regulatory process and of casino operations." N.J.S.A. 5:12-1(b). The Commission has promulgated the blackjack rules that give Uston a comparative advantage, and it has sole authority to change those rules. There is no indication that Uston has violated any Commission rule on the playing of blackjack. N.J.A.C. 19:47-2.1 to -2.13. Put simply, Uston's gaming is "conducted according to rules promulgated by the Commission." N.J.S.A. 5:12-100(e). Resorts has no right to exclude Uston on grounds that he successfully plays the game under existing rules. ³

III

Resorts claimed that it could exclude Uston because it had a common law right to exclude anyone at all for any reason. While we hold that the Casino Control Act precludes Resorts from excluding...