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Marzocca v. Ferone

Decided: July 12, 1983.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 186 N.J. Super. 483 (1982).

For affirmance in part and reversal in part -- Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Clifford, J.


In Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 (1959), this Court held that a private racetrack was entitled, under common law, to exclude a patron for any reason other than race, creed, color, national origin or ancestry. We now consider that common law right in the context of the exclusion of a race horse. In addition, the appeal presents a jurisdictional issue: whether disputes between licensees of the New Jersey Racing Commission (Commission) involving matters not regulated by the Commission should be heard in an administrative or a judicial forum.

After both the Chancery Division and the Commission had dismissed plaintiff's claims on jurisdictional grounds, the Appellate Division ruled that the Chancery Division was the proper forum. Marzocca v. Ferrone, 186 N.J. Super. 483, 496 (1982). In addressing the merits, the Appellate Division held that in light of Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163 (1982), the racetrack no longer enjoyed an unfettered right to exclude. It remanded the matter to the trial court for consideration of the reasonableness of the exclusion. 186 N.J. Super. at 495.

We affirm the Appellate Division on the jurisdictional issue and reverse on the merits. Because Uston is distinguishable on the facts, we need not address the assertion that Uston overruled Garifine sub silentio, 186 N.J. Super. at 490 n. 3.


In April and May, 1981, Lord John C, a standardbred race horse, won three consecutive races at Freehold Raceway, which is operated by defendant Freehold Racing Association. Encouraged by this success, Lord John C's owner, plaintiff, John Marzocca, decided to ship his horse to Yonkers Raceway in New York, with the hope of winning larger purses. Walter Mazur, Lord John C's trainer, informed defendant Frank Ferone, Racing Secretary at Freehold, of his intention to remove the horse from the grounds. Ferone requested that the move be postponed for a short time in order to reduce the effect of Lord John C's withdrawal on the scheduling of races. Ferone explained that the removal of Lord John C would threaten the interests of other horse owners and the track because it would aggravate the shortage of horses available for races in Lord John C's class ($15,000 claiming) and might lead to the running of "short fields" or the cancellation of races. Mazur refused to comply with Ferone's request. Ferone then informed Mazur that if he removed the horse at that time, Lord John C would be barred permanently from Freehold Raceway.

Notwithstanding that warning, plaintiff moved Lord John C to Yonkers Raceway. When plaintiff attempted to return the horse to Freehold, Ferone refused to accept the eligibility papers or the entry of Lord John C. The track did not take similar action, however, with regard to plaintiff's other horses: Olympic Charley, also owned by plaintiff, competed at Freehold subsequent to the exclusion of Lord John C.

Plaintiff responded to the exclusion of his horse by instituting suit in the Chancery Division against Ferone, Freehold, and the Commission. He claimed that the exclusion violated the rules of

the Commission, constituted an unconstitutional restriction on interstate commerce, and violated his due process rights. The trial court dismissed that action without prejudice on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Plaintiff next unsuccessfully sought a hearing before the Commission, which took the position that the dispute was a private matter that did not constitute a case or controversy within its jurisdiction because "the composition of the racing card is left entirely to the discretion of the permit holder."

Plaintiff appealed both determinations. The Appellate Division reversed the Chancery Division and affirmed the Commission. 186 N.J. Super. at 496. The court below was influenced by this Court's decision in Uston, reading our opinion to require that after Uston the racetrack's common law right to exclude persons using the track be balanced against the right of reasonable access to facilities otherwise held open to the public. Holding that both interests deserved judicial protection, the Appellate Division remanded the matter for the balancing of those rights upon a more detailed record. The court below rejected plaintiff's other claims and dismissed the Commission from the proceeding on remand. In addition, it affirmed ...

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