On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication June 13, 1997.
Before Judges D'Annunzio, Newman and Villanueva. The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
The opinion of the court was delivered by
Adamar of New Jersey, the operator of an Atlantic City casino known as Tropworld, and two of its employees, Pat Scully and Michael Imperatrice, appeal from a judgment in the amount of $1,519,873.43 entered on a jury's verdict. The judgment included an award of $300,625.87 against Tropworld and Imperatrice for discriminating against plaintiff because he was a card counter; an award of $219,034.06 against Tropworld and Scully as compensatory damages for malicious prosecution; and an award of $1,000,213.50 for punitive damages against Tropworld on the malicious prosecution claim. Plaintiff cross-appeals regarding damages.
I. DISCRIMINATION AGAINST CARDCOUNTERS
This case involves a 1989 episode in the conflict between Atlantic City's casinos and certain blackjack players known as card counters. See, e.g., Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (1981). The Law Division addressed the issues in a pre-trial published opinion granting summary judgment to Adamar as to its right to shuffle cards at will, but denying Adamar's motion regarding Adamar's "right to discriminate against plaintiff in its implementation" of certain casino control regulations. Campione v. Adamar of New Jersey, Inc., 274 N.J. Super. 63, 83, 643 A.2d 42 (Law Div. 1993).
In 1982, the New Jersey Supreme Court addressed the right of a casino to exclude a patron from its premises solely because the patron was identified as a card counter. Uston, (supra) . The Court noted that the Casino Control Act (Act), N.J.S.A. 5:12-1 to -152, gives the Casino Control Commission (Commission) exclusive and plenary authority "to set the rules of licensed casino games, which includes the methods for playing those games." Id. at 166. Because the Commission had not authorized exclusion as a countermeasure, the Court concluded that the casino had no authority to exclude persons because they were card counters. Ibid.
In response to Uston, in 1982, the Commission authorized the use of certain measures to defeat card counters, but those measures did not authorize exclusion. The Commission empowered the casinos to employ the following countermeasures: (1) a method of shuffling the blackjack decks called the "Bart Carter Shuffle," N.J.A.C. 19:47-2.1; (2) increasing the number of decks from which the cards are dealt, N.J.A.C. 19:47-2.2; (3) the continuous shuffling shoe, N.J.A.C. 19:47-2.20; and (4) limiting the number of wagers per player, N.J.A.C. 19:47-2.14.
Thereafter, the Commission adopted two additional regulations applicable as cardcounting countermeasures. In 1991, the Commission added a regulation providing that
a casino licensee may at any time change the permissible minimum or maximum wager at a table game, without notifying the Commission of such change, upon posting a sign at the gaming table advising patrons of the new permissible minimum or maximum wager and announcing the change to patrons who are at the table.
In 1993, the Commission adopted a regulation, codified at N.J.A.C. 19:47-8.2(b), allowing a casino to offer:
1. Different maximum wagers at one gaming table for each permissible wager in an authorized game; and
2. Different maximum wagers at different gaming tables for each permissible wager in an authorized game.
(d) Any wager accepted by a dealer which is in excess of the established maximum permitted wager at that gaming table shall be paid or lost in its entirety in accordance with the rules of the game, notwithstanding that the wager exceeded the current table maximum.
The 1991 and 1993 regulations were not in effect when the confrontation between plaintiff and defendant occurred. However, in addition to countermeasures contained in its regulations, the Commission approved Tropworld's internal controls relating to procedures and rules governing the conduct of particular games. The authority for those approvals is in N.J.S.A. 5:12-99a(16), and consequently they are referred to as section 99 controls. Tropworld's approved section 99 controls, in effect in 1989, included the casino's discretion to order a reshuffle at anytime and to permit a player to make more than one wager at a table and to exceed the table's betting limit.
The parties introduced the following evidence relevant to plaintiff's discrimination claim. Plaintiff, aged sixty-one at trial, became interested in blackjack and card counting after the first casino opened in Atlantic City in 1978, and he began reading books and taking lessons about those subjects. A "card counter" is a player who utilizes information concerning the cards remaining in the shoe to his advantage in both methods of playing and for betting. Campione, (supra) , 274 N.J. Super. at 69 n.1. Plaintiff took a blackjack course from Doug Grant, an accomplished card counter, in 1985 and received a diploma as a master blackjack player. He played blackjack primarily at TropWorld because, according to plaintiff, TropWorld offered "the best game in town" due to its favorable rules. Between 1985 and 1989, plaintiff's betting ranged from $100 to $400 a hand.
Plaintiff claimed that TropWorld would take certain countermeasures against him because he was a card counter; these measures included shuffling the deck before the cut card was reached, placing the cut card lower in the deck, dropping the maximum bet limit and restricting plaintiff to playing one hand. Plaintiff maintained that the casino would allow other players at the table to bet above the maximum and to play two hands, and allowed other players, but not him, to play the dealer one-on-one. According to plaintiff, TropWorld's employees would also try to make him feel unwelcome, would follow him around the casino, would talk to him while he was trying to card count and would tell other players at the table that plaintiff was responsible for the deck being shuffled prematurely. As a result of these countermeasures and actions, plaintiff would often put on disguises in an effort to conceal his identity.
In April 1989, while playing at TropWorld, plaintiff was not allowed to play two hands during one deal, and the floor person instructed the dealer to deal past plaintiff when he did not remove his chips from the betting circle. As a result, plaintiff filed a complaint with the Commission claiming discrimination. Several weeks later, the Commission informed him that the casino's actions did not constitute a violation of the Act and its implementing regulations.
On the afternoon of November 10, 1989, plaintiff was playing blackjack at a table at Tropworld which had a minimum bet of $25 and a maximum bet of $1000. Before sitting at the table, plaintiff was back counting, that is, card counting while not being seated at the table, and when he sat down there was only one other player at the table. Plaintiff bet several hands of $300 to $350, and was, for the most part, losing. At one point, plaintiff placed $350 in the betting circle, whereupon Michael Imperatrice, a floor supervisor and a member of TropWorld's card counting team, changed the betting-limit sign at the table and told plaintiff that he could only bet $100 because of the reduced table limit. Plaintiff testified that Imperatrice told the other player at the table that he could bet up to $1000 if he so wished. Imperatrice instructed the dealer to deal and he pushed plaintiff's money out of the betting circle informing plaintiff that he wanted him to bet $100. Plaintiff pushed the $350 back in the circle and told Imperatrice that he wanted to continue to bet $350 in order to recoup his losses. Plaintiff received a ten or an eleven and sought to "double down" his bet by betting an additional $350. Plaintiff then received a nine or ten and won the hand. However, instead of receiving $700, plaintiff was given $200 as his winnings, apparently $100 for each of two bets. Plaintiff refused to accept the payout and put his hands around the cards. Imperatrice told plaintiff that the bet was paid properly, at which point plaintiff asked to see someone from the Commission. Imperatrice replied that if plaintiff wanted to talk to the Commission, he would have to go to the Commission's booth at the casino. Imperatrice also told plaintiff that if he did not take his hands off of the cards, casino security would be called. When plaintiff refused to take his hands off the cards, Imperatrice called David Duffield, lieutenant of security at TropWorld, to the table, and Duffield, in turn, called Patrick Scully, TropWorld's sergeant of security, to come to the table. Plaintiff told Scully that he had been improperly paid and that he wanted to keep the cards as evidence. Scully told plaintiff that if he did not take his hands off the cards, he would be arrested. According to plaintiff, when he took his hands off the cards, Duffield came up from behind him and Duffield and Scully "marched" him off to the Commission booth. At that time, plaintiff was told by Duffield and Scully that he was under arrest.
When plaintiff arrived at the booth, he sat on the floor because he felt weak and lightheaded. Plaintiff spoke to Ronald Hungridge of the Division of Gaming Enforcement (DGE), who invited him to come to the DGE office. Hungridge, who described plaintiff as "very upset, very boisterous," typed a complaint which Scully signed. Plaintiff was released after spending forty-five minutes to an hour at the DGE office. Plaintiff cashed his chips before he left the casino. He denied cursing at or threatening any of the casino personnel. A silent video tape of the incident, including the walk to the Commission's booth, is part of the record. There is no evidence on the tape that Tropworld's personnel manhandled or inappropriately placed their hands on plaintiff.
Plaintiff did not file a complaint with the Commission regarding this incident. After November 10, 1989, plaintiff did not go back to Tropworld to play blackjack because he believed he would be "arrested on sight." In addition, plaintiff testified that since that date he has not attempted to play blackjack "for serious money" in any other Atlantic City casino. Imperatrice testified that on November 10, 1989, he was aware that plaintiff was a card counter. Imperatrice was watching plaintiff play when he noticed that plaintiff had a favorable count. As plaintiff began to take money out of his pocket, Imperatrice lowered the table's betting maximum to $100 by changing the sign and by orally informing plaintiff of the change. Imperatrice testified that he was "absolutely positive" that plaintiff's bet was not in the betting circle before he lowered the maximum bet.
After changing the maximum bet, Imperatrice asked if anyone would like to exceed the table maximum. Plaintiff responded that he intended to bet $300, and Imperatrice told him that he would win or lose $100. After plaintiff won the double down bet, Imperatrice instructed the dealer to pay plaintiff $200. At that point, according to Imperatrice, plaintiff "grabbed the cards off the table" and said that he wanted his money. He asked for a member of the Commission to come to the table, but was told that if he had a complaint he would have to take it to the Commission booth.
The dealer, Tu Nguyen, testified inconsistently as to whether plaintiff had money in the betting circle when Imperatrice dropped the maximum bet. Nguyen also could not recall whether the other player at the table played the hand in question.
Victor Martinson, a floor person and member of Tropworld's card counting team in November 1989, conceded that had plaintiff not been at the table in question, the maximum bet would not have been lowered. Martinson added that because plaintiff was known to be a card counter, he would not have been granted permission to exceed the maximum after it had been lowered; however, such permission might have been granted to the other player at the table. In addition, Martinson testified that it was TropWorld's practice to raise the bet maximum back to its previous level after a card counter has left the table.
Defendants argue that plaintiff's cause of action for discrimination should have been dismissed because the Act does not create a private cause of action against a casino for discriminatory application of a Commission regulation. Defendants maintain that the trial court usurped the Commission's jurisdiction by arrogating to itself, and through the court to the jury, the power to interpret Commission regulations. Defendants also assert that the Commission had primary jurisdiction, and that, because plaintiff failed to address his complaints to the Commission, the trial court ...