On appeal from New Jersey Casino Control Commission.
Allcorn, Pressler and Furman. The opinion of the court was delivered by Allcorn, P.J.A.D.
This is an appeal by Kenneth Uston, a professional blackjack player, who, concededly, has developed and utilizes a system of play (card counting) which can increase a blackjack player's chances at winning at the game. The Casino Control Commission (Commission), which is responsible for promulgating the rules of the games played at the casinos, established the rules of blackjack in such a fashion that a card counter seemingly could use his special skill to advantage and equalize or better the odds normally favoring the house.
At oral argument it was conceded by Resorts that the rules of play established by the Commission may be defined in such manner so as to virtually eliminate the advantage of the card counter, but that such rules of play would necessarily slow the game and thus reduce the number of games that may be played and completed during a given period of play. In turn, this would effectively lessen the "take" of the casino on the blackjack games, all other things being equal.
The casino, aware of the card counters' advantage, decided to prohibit those players from playing blackjack and, on January 30, 1979, Uston was barred by Resorts from its blackjack tables, solely for the reason that he was a professional card counter. Uston was permitted to avail himself of any other game the casino offered.
Uston appealed Resorts' action to the Commission which determined that Resorts had a common-law right to exclude any person it chose, for whatever reason it chose, relying principally upon the case of Garifine v. Monmouth Park Jockey Club , 29 N.J. 47 (1959).
In our view, the Commission's reading of Garifine extends the breadth of the decision far beyond its actual holding and effect. Garifine involved the propriety of the exclusion and expulsion of Garifine (a suspected bookmaker) from the Monmouth Park racetrack, as an undesirable. The Supreme Court's determination simply posited its stand upon "the many judicial decisions which have sustained the common-law right of race track operators to exclude suspected undesirables." (Id. at 57.
However one may define an "undesirable," there is no suggestion here that Uston is an undesirable and, as such, that he may be excluded or expelled from either the casino or simply from the blackjack games. Indeed, it is only Uston's skill as a player of blackjack that gives rise to Resorts' desire to bar him from participating as a player at the blackjack games. At the same time, Resorts concedes that the advantage that his skill brings him is largely or entirely lost in those blackjack games played with six decks of cards and where the cut card (used to mark the shuffle point) is moved further up from the bottom than is at present required by the Commission's rules of play. As noted earlier, according to Resorts the use of this procedure is not preferred in any event because it slows down play, which decreases the earnings of the casino from the blackjack operations.
We note also that the Casino Control Act directs the Casino Control Commission to compile a list of persons to be excluded or expelled from gambling casinos. The pertinent portions of the statute, N.J.S.A. 5:12-71, provide:
a. The Commission shall, by regulation, provide for the establishment of a list of persons who are to be excluded or ejected from any licensed casino establishment.
Such provisions shall define the standards for exclusion, and shall include ...