Chief Justice Poritz and Justices Handler, O'hern, Garibaldi, Stein, and Coleman join in Justice POLLOCK's opinion.
The opinion of the court was delivered by: Pollock, J.
On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 302 N.J. Super. 99 (1997).
This appeal presents several issues. The first is whether the Casino Control Commission (CCC) has exclusive jurisdiction over claims by patrons against casinos for discrimination and breach of contract. A related issue is whether patrons may maintain such claims as common-law causes of action. The final issue questions the award of damages of $1,000,213.50 for malicious prosecution in favor of plaintiff Anthony Campione.
Campione was a blackjack player and professional card counter who frequented casinos in Atlantic City. The defendants are Adamar of New Jersey, which operates the TropWorld Casino; Michael Imperatrice, a floor supervisor and a member of TropWorld's card counting team; and Patrick Scully, TropWorld's Sergeant of Security.
On February 14, 1991, plaintiff sued defendants for discrimination, breach of contract, and malicious prosecution. He alleged that defendants selectively enforced gaming regulations against him because he was a card counter. The jury found that defendants were liable for discrimination and malicious prosecution and returned a verdict totaling $1,519,873.43.
The Appellate Division reversed and remanded the matter to the Law Division. 302 N.J. Super. 99 (App. Div. 1997). It found that the CCC had exclusive jurisdiction over plaintiff's claims and that plaintiff could not maintain a private cause of action against defendants. The court also reversed the malicious prosecution award.
We granted plaintiff's petition for certification. 152 N.J. 9 (1997). We granted motions of the Casino Control Commission and the Division of Gaming Enforcement (DGE) to intervene and the CCC's petition for certification. 152 N.J. 9 (1997). The petition for certification of Doug Grant, Inc., which conducts a school to train card counters, was denied. 151 N.J. 472 (1997). We now modify the judgment of the Appellate Division and remand the matter to the Law Division.
The purpose of blackjack is to obtain cards having a higher count than those of the dealer without exceeding a total count of twenty-one. In blackjack, unlike in other games of chance, players' skill can increase the odds in their favor. Card counting is a method of playing blackjack that involves keeping track of the number of "high value" cards. This technique allows a blackjack player to identify a favorable count, which occurs when an unusually high percentage of the cards remaining in the "dealing shoe" are high value cards. At that time, the chances increase that the dealer will "bust," or deal cards that exceed 21 points, thereby permitting the card counter to win. A favorable count occurs infrequently, and almost exclusively after most of the cards have been dealt. Consequently, card counters must maximize their play at such times. To do so, card counters may increase their bet, play two hands at once, or both.
Neither the Casino Control Act, N.J.S.A. 5:12-1 to -142 (Act), nor the CCC prohibits card counting. The CCC, however, authorizes casinos to use various "countermeasures" to discourage card counting. For example, CCC regulations give casinos the discretion to shuffle the cards at will, N.J.A.C. 19:47-2.5a, or to lower the betting limit at any time, N.J.A.C. 19:47-8.3c. In addition to issuing its own regulations, the CCC allows, subject to its approval, casinos to adopt "Section 99 internal controls." N.J.S.A. 5:12-99.
To identify card counters, TropWorld employed a "Card Counting Team." After identifying plaintiff as a card counter, TropWorld's team applied countermeasures against him. Although TropWorld admitted to treating card counters differently from other patrons, it asserted that the treatment complied with CCC regulations and its Section 99 internal controls.
Because of the countermeasures applied by TropWorld and other Atlantic City casinos, plaintiff filed a number of "patron complaints" with the CCC. He particularly objected to the casinos' lowering his betting limit and limiting him to one hand, while simultaneously allowing other players to exceed the betting limit and play two hands. In response, the CCC informed plaintiff either that it needed to investigate the matter or that his complaint "does not indicate any violation of the Casino Control Act or pertinent regulations." Additionally, the CCC regularly informed plaintiff that the "Commission does not conduct hearings on individual patron complaints." For example, in an October 17, 1989, letter responding to plaintiff's complaint against Bally's Park Place Hotel Casino, the CCC stated:
The [patron complaint] process is not designed to provide patrons with a forum for redress against casinos. The Commission is without authority to compel Casino Licensees to pay money damages to patrons, even in instances where a violation [of the Act and/or its regulations] has occurred. That authority rests with the Courts of the State of New Jersey.
With the exception of the present case, plaintiff never proceeded further with the CCC or sought to appeal the CCC's Disposition of his complaints.
Plaintiff's action against TropWorld arises from two incidents. According to plaintiff, on April 27, 1989, TropWorld allowed other blackjack players, but not him, to play two hands during one deal. When plaintiff put his chips in the betting circle, the casino floor person instructed the dealer to deal past plaintiff. As a result, plaintiff filed a patron complaint with the CCC. By letter dated May 15, 1989, the CCC informed plaintiff that TropWorld's actions did not constitute a violation of the Act or the regulations. The CCC also explained:
Be advised that the Commission does not conduct hearings on individual patron complaints. Rather, efforts are made to resolve such matters informally where possible. In addition, all patron complaints are reconsidered in connection with the annual renewal of each casino's license to determine whether it is providing the type of entertainment and services envisioned by the Legislature when it adopted the Casino Control Act.
The second incident took place on November 10, 1989, when plaintiff was playing blackjack at a TropWorld table with a minimum bet of $25 and a maximum bet of $1000. When the card count became favorable, plaintiff placed several unsuccessful bets of $300 and $350. The parties disagree over the ensuing facts.
According to plaintiff, after he placed a $350 bet, Imperatrice placed a sign on the table lowering the betting limit to $100. Imperatrice, however, maintained that plaintiff's initial bet was not in the betting circle before he lowered the limit. Otherwise, according to Imperatrice, he would have honored the bet.
Imperatrice informed plaintiff that he could not bet more than $100. According to plaintiff, Imperatrice then told the other player at the table that he could wager up to $1000. Without responding, that player left the table.
When Imperatrice pushed plaintiff's $350 bet out of the circle, plaintiff pushed it back. Plaintiff testified that Imperatrice then instructed the dealer to deal, but to pay plaintiff, if he won, based on a $100 bet. The dealer dealt a hand that qualified for a "double down," which entitled plaintiff to double his bet. N.J.A.C. 19:47-2.10. Plaintiff then placed another $350 in the betting circle and won. Imperatrice instructed the dealer to pay plaintiff $200 - for an initial $100 bet and a $100 "double down" bet. Plaintiff claimed that he was entitled to $700 - for the initial $350 bet and the $350 "double down" bet.
Plaintiff stated that he then placed his hand on top of the cards, pulled the cards toward him, and advised the dealer that she had not paid him the proper amount of money. Although plaintiff knew he was not permitted to touch the cards, N.J.A.C. 19:47-2.6n, he wanted to preserve the cards as evidence. According to Imperatrice, however, plaintiff grabbed the cards. When Imperatrice informed plaintiff that he had been paid the proper amount, plaintiff asked to see a CCC representative. Imperatrice told plaintiff that to complain he must go to the CCC booth. He also informed plaintiff that if he did not relinquish his cards, Imperatrice would call security.
Shortly thereafter, Imperatrice called David Duffield, a lieutenant of security. Duffield called Scully, who told plaintiff to remove his hands from the cards. Plaintiff refused. Plaintiff's version is that he explained that he had been paid improperly and that he wanted to keep the cards as evidence. Scully, however, testified that he told plaintiff two or three times that if he did not take his hands off the cards and leave the game, Scully would arrest him. According to plaintiff, when he relinquished the cards, Duffield and Scully arrested him.
Scully and Duffield then escorted plaintiff to the CCC booth, where plaintiff sat down on the floor because, as he testified, he felt weak and lightheaded. Detective Ronald Hungridge of the DGE took plaintiff to the DGE office. After speaking with Scully, Hungridge informed plaintiff that he was under arrest. Although Hungridge described plaintiff as "very upset, very boisterous," plaintiff denied cursing or threatening any casino personnel.
Scully signed a complaint in the Atlantic City Municipal Court charging plaintiff with disorderly conduct, N.J.S.A. 2C:33-2(a), "by causing an annoyance and disrupting the game of blackjack by retaining the playing cards and threatening TropWorld Employees." The complaint also charged plaintiff with defiant trespass, N.J.S.A. 2C:18-3, "by remaining in the casino complex after being formally ejected from same." The entire incident took place in less than an hour. Although plaintiff was never handcuffed or physically restrained, he said that he felt "humiliated" by the incident.
In the municipal court plaintiff was acquitted of the criminal charges. The court dismissed the disorderly conduct count on the ground that plaintiff had not caused a public annoyance. It also found plaintiff not guilty of the trespass charge because plaintiff was "legitimately trying to protect his bet." After the November 10, 1989, incident, plaintiff filed an affidavit with the DGE, but he did not file a complaint with the CCC.
On February 4, 1991, plaintiff filed this action in the Law Division against TropWorld, Imperatrice, and Scully. Initially, plaintiff sued several other TropWorld employees, who obtained a dismissal of the action. Seeking both compensatory and punitive damages, plaintiff alleged malicious ...