Uston v. Resorts International Hotel, Inc.

Citations: 445 A.2d 370; 89 N.J. 163; 1982 N.J. LEXIS 1902

Court: Supreme Court of New Jersey; May 5, 1982; New Jersey; State Supreme Court

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Kenneth S. Uston was excluded from blackjack tables at Resorts International Hotel, Inc. due to his card-counting strategy, which increases his chances of winning. Uston argues that Resorts lacks both common law and statutory authority to exclude him based on his gambling strategy. The Supreme Court of New Jersey held that the Casino Control Act grants the New Jersey Casino Control Commission exclusive authority to establish rules for licensed casino games, which includes the methods of play. Consequently, Resorts cannot exclude Uston for card counting since the Commission has not made a determination regarding the legality of such exclusions. Kenneth Uston has been recognized for his expertise in card counting, a strategy that allows players to track dealt cards and adjust their bets. Initially, Resorts did not bar Uston when he first played in 1978, as the existing rules minimized the advantages of card counting. However, a new rule effective January 5, 1979, significantly enhanced the odds for card counters, leading to Resorts' decision to exclude him. Resorts acknowledged that the Commission could implement rules to mitigate the advantages of card counting, but such changes would adversely affect game speed and casino profits.

On January 30, 1979, Resorts' attorneys sought clarification from Commission Chairman Lordi regarding the legality of summarily removing card counters from blackjack tables. Lordi confirmed that no statute or regulation prohibited Resorts from excluding professional card counters. That same day, Resorts ended Uston's blackjack career, citing his classification as a professional card counter. Resorts then established criteria for identifying card counters and adopted a policy to exclude them. The Commission supported Resorts' decision to exclude Uston, referencing Garifine v. Monmouth Park Jockey Club, affirming Resorts' common law right to exclude individuals unless it contravened civil rights laws. However, the Appellate Division reversed this decision, stating that the Casino Control Act prevents Resorts from excluding Uston, as only the Commission has the authority to exclude patrons based on their gaming strategies. The court noted that any common law rights Resorts held to exclude patrons are curtailed by the act. Furthermore, it emphasized that the right to exclude is limited by the public's right to reasonable access to establishments. The Casino Control Act imposes extensive regulatory measures on casino operations, asserting that its provisions supersede conflicting laws and establish a public policy of strict regulation of licensed casinos in New Jersey. Key provisions mandate that all gaming activities adhere to rules set by the Commission, ensuring fair play and maximum participation for patrons.

The Commission has established comprehensive regulations for blackjack, outlined in N.J.A.C. 19:47-2.1 to -2.13, addressing all aspects of gameplay, including card handling and dealer announcements. This regulatory framework emphasizes the Commission's intention to maintain control over casino game conduct, ensuring the integrity of operations and preventing casino operators from independently altering game rules. Uston's gameplay adheres to these rules, and there is no evidence of rule violations, granting him the right to participate without exclusion. Resorts' claim of a common law right to exclude patrons is challenged; while the Casino Control Act limits this right, it does not entirely eliminate it. Common law supports both the right to exclude unwanted patrons and the competing right to reasonable access to public accommodations. Historically, courts have shifted perspectives on reasonable access, particularly in light of civil rights advancements, but the prevailing rule allows proprietors to exclude individuals as long as it aligns with civil rights laws.

An absolute right of exclusion was historically recognized in New Jersey, primarily influenced by the English case Wood v. Leadbitter, which established a precedent followed in local decisions such as Shubert v. Nixon Amusement Co. In Shubert, the court dismissed a case where a patron was ejected from a theater, underscoring that the exclusion was not based on discriminatory factors. The court felt compelled to adhere to the Wood v. Leadbitter precedent despite recognizing potential injustices. Over time, common law has evolved, as evidenced by the disapproval of Leadbitter in Hurst v. Picture Theatres Limited and by subsequent rulings emphasizing the need to balance property rights with individual rights.

In State v. Schmid, the court addressed the constitutional right to distribute literature on a private university campus, establishing that property owners must accommodate public rights when their premises are open to the public. The ruling indicated that unreasonable exclusions contradict both the institution’s interests and individuals' rights to express themselves. Similarly, in State v. Shack, the court ruled against an employer's unreasonable restrictions on migrant workers’ visitors, reinforcing that property owners cannot arbitrarily exclude individuals when their property serves public interests. The duty to refrain from unreasonable exclusion applies broadly to all property owners who open their premises to public use, with exceptions only for actions that disrupt operations or threaten security.

Proprietors have a duty to remove disorderly or dangerous individuals from their premises, as established in Holly v. Meyers Hotel and Tavern, Inc. Casinos may exclude disorderly, intoxicated, or repeat offenders, but the reasonableness of such exclusions must be assessed based on specific circumstances. Respondent Uston does not pose a threat to casino security or disrupt operations, thus retaining the right to reasonable access to Resorts International's blackjack tables, absent a valid rule from the Commission. The Commission has the authority to exclude persons based on their gaming methods, but this power is bounded by constitutional and statutory limits. The Court refrains from determining whether the Casino Control Act allows the Commission to ban card counters. Should the Commission consider such a rule, it must evaluate statutory mandates concerning public policy and the integrity of gaming operations, balancing casino vitality, fair odds, and maximum patron participation. Excluding card counters could undermine public confidence in casino fairness, especially if non-card counters are mistakenly barred. While casinos must ensure some level of profit, fairness and integrity are paramount. Consequently, without a valid exclusion regulation from the Commission, Uston can use his card-counting strategy at Resorts. Although the Commission might have acted differently had it known about Uston's situation, the temporary order banning him from Resorts' blackjack tables is extended for 90 days. After this period, Uston may play blackjack unless a valid exclusion rule is enacted. The Court's decision is supported by Justices Pashman, Clifford, Schreiber, Handler, and O'Hern, with no dissenting opinions. Notably, Uston has publicly discussed his blackjack strategy and success, and an industry-wide practice has emerged to ban card counters, with individual casinos maintaining lists of barred individuals.

The Appellate Division referenced N.J.S.A. 5:12-71.71 to support the Commission's authority to exclude individuals like Uston from gaming casinos, as this statute mandates the Commission to maintain a list of individuals whose presence could harm the interests of casino gambling in New Jersey. The statute specifically pertains to individuals with backgrounds suggesting criminal activity or actions detrimental to the integrity of licensed gambling. However, the court did not rely solely on this statute, noting the Attorney General's interpretation that it represents a limited encroachment on common law rights and that it remains unclear if it provides the Commission with the authority to exclude card counters. This is contrasted with a similar Nevada statute, which has been interpreted as not affecting the exclusion of card counters. Additionally, the court remarked on the historical context of exclusionary practices and acknowledged that it does not need to resolve whether common law permits exclusion based solely on suspicion of criminal activity, as the Casino Control Act assigns such exclusionary powers exclusively to the Commission.