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I/M/O Petition of S.D.

March 20, 2008


On appeal from the New Jersey Casino Control Commission, Docket No. PRN 40605.

The opinion of the court was delivered by: Axelrad, J.A.D.




Argued: December 19, 2007

Before Judges Axelrad, Payne and Messano.

This appeal involves the issue of whether a self-professed problem gambler who placed himself on the New Jersey Casino Control Commission's (Commission) lifetime self-exclusion list (SEL) is entitled to removal from that list upon becoming aware that out-of-state casinos affiliated with those in New Jersey would also exclude him from their gaming facilities. The Commission denied S.D.'s petition for removal from the voluntary lifetime SEL, and we discern no basis to second-guess that decision.

We briefly recite the law on casino exclusions to place S.D.'s SEL application and removal request in context. The New Jersey Casino Control Act (Act), N.J.S.A. 5:12-1 to 210, provides two distinct types of casino exclusions. The first, involuntary exclusion, has been part of the Act since 1977. It is reserved for organized crime figures, certain convicted criminals, and other individuals whose presence in a casino establishment would be inimical to the interests of New Jersey casino regulation. N.J.S.A. 5:12-71; N.J.A.C. 19:48-1.1 to -1.8. Persons on the involuntary exclusion list are barred from all areas of a licensed casino hotel facility, N.J.A.C. 19:43-7.8(b)1, and a violation of an involuntary exclusion order is punishable as a disorderly persons offense, N.J.S.A. 5:12-122. These persons are eligible to file a petition for removal from the involuntary exclusion list five years after placement, and may seek early consideration for removal in extraordinary circumstances. N.J.A.C. 19:48-1.8(a) and (d).

In 2001 the Legislature directed the second type of casino exclusion, voluntary self-exclusion from gaming activities, requiring the Commission to provide regulations establishing lists for individuals who identify themselves as problem gamblers and procedures for placement on, and removal from, the SEL.*fn1 N.J.S.A. 5:12-71.2 states:

a. The commission shall provide by regulation for the establishment of a list of persons self-excluded from gaming activities at all licensed casinos and simulcasting facilities. Any person may request placement on the list of self-excluded persons by acknowledging in a manner to be established by the commission that the person is a problem gambler and by agreeing that, during any period of voluntary exclusion, the person may not collect any winnings or recover any losses resulting from any gaming activity at such casinos and facilities.

b. The regulations of the commission shall establish procedures for placements on, and removals from, the list of self-excluded persons. Such regulations shall establish procedures for the transmittal to licensed casinos and simulcasting facilities of identifying information concerning self-excluded persons, and shall require licensed casinos and simulcasting facilities to establish procedures designed, at a minimum, to remove self-excluded persons from targeted mailings or other forms of advertising or promotions and deny self-excluded persons access to credit, complementaries, check cashing privileges[,] club programs, and other similar benefits.

Pursuant to this instruction, the Commission promulgated the regulations establishing the SEL. N.J.A.C. 19:48-2.1 through -2.5. In doing so, the Commission looked to a number of sources, including the Council on Compulsive Gambling of New Jersey and jurisdictions such as Missouri to determine the terms and requirements of the SEL. The Commission decided to create three terms of self-exclusion: one year, five years, and lifetime. N.J.A.C. 19:48-2.2(c)(2).*fn2 The Commission also promulgated regulations providing for the removal from the SEL, with the express exception of removal of "those persons choosing a life-time self-exclusion." N.J.A.C. 19:48-2.5(a).

Once a person places him or herself on the SEL, the Commission regulations require each casino to: (1) refuse wagers from and deny any gambling privileges to such self-excluded person; (2) deny casino credit, check cashing privileges, player club membership, complimentary goods and services, junket participation and similar privileges and benefits to such self-excluded person; and (3) ensure such self-excluded persons do not receive, either from the casino licensee or its agent, junket solicitations, targeted mailings, telemarketing promotions, player club materials or other promotional materials relating to gaming activities at its licensed casino or simulcasting facility. N.J.A.C. 19:48-2.4(a)2, 3 and 4. Unlike individuals on the involuntary exclusion list, self-excluded persons are not statutorily prohibited from being present in any area of a casino hotel facility and are not subject to any sanction for violating the self-exclusion pact other than the forfeiture of any winnings. N.J.S.A. 5:12-71.3a and c. In essence, self-exclusion is designed as a means to help problem gamblers help themselves; it places responsibility squarely on self-excluded persons themselves to refrain from prohibited activities, albeit with the assistance and cooperation of the casinos. See N.J.S.A. 5:12-71.2c and e (providing for lack of liability of a licensed casino or simulcasting facility or its employee for failing to withhold gaming privileges from or permitting a self-excluded person from engaging in gaming activity or disclosing, other than a willfully unlawful disclosure, the identity of such self-excluded person).

As originally enacted, N.J.S.A. 5:71.2 provided "for the transmittal to licensed casino and simulcasting facilities of identifying information concerning self-excluded persons," N.J.S.A. 5:71.2b, with such lists otherwise remaining confidential under N.J.S.A. 5:12-71.2d. In 2002, N.J.S.A. 5:12-71.2d was amended to add the following, presumably ...

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