Takeaway
In short, this case holds that a casino cannot use private exclusion to counter a lawful playing strategy: game rules, including any restriction on card counting, are for the Casino Control Commission, and public-facing businesses may not exclude patrons arbitrarily.
Kenneth Uston was a skilled blackjack player who used card counting: he tracked the cards dealt and varied his bets when the remaining deck made the odds more favorable. Resorts International initially permitted him to play. But after a Casino Control Commission rule restricting reshuffling took effect in January 1979—a change that improved the effectiveness of card counting—Resorts concluded that Uston was a professional card counter and barred him from its blackjack tables.
Resorts asked the Commission whether it could remove card counters, and the Commission chairman replied that no statute or regulation prohibited the practice. The Commission later upheld Resorts' exclusion of Uston, reasoning that a casino had a common-law right to exclude anyone so long as it did not violate civil-rights laws. The Appellate Division reversed. The Supreme Court of New Jersey affirmed, although on a somewhat different understanding of the Casino Control Act.
Issue #1
Whether the Casino Control Act permits a licensed casino to exclude a patron for card counting under the casino's own authority.
Holding
No. The Act gives the Casino Control Commission exclusive authority over the rules and methods of playing licensed casino games, so Resorts could not exclude Uston for successfully card counting under the Commission's existing blackjack rules.
Reasoning
The Casino Control Act establishes an unusually comprehensive regulatory system for casino gambling and expressly provides that it prevails over conflicting law. Its stated policy is that casino operations must be strictly regulated and controlled, making it inappropriate to treat game-operation decisions as matters left to each casino's private discretion.
The Act specifically directs that all gaming be conducted under Commission-promulgated rules and authorizes the Commission to define authorized games, their rules, odds, devices, and methods of operation. The Commission's blackjack regulations were exhaustive, covering matters from shuffling and cutting cards to the mechanics of dealing.
Card counting is a method of playing blackjack. Allowing Resorts to remove players because that method gives them an advantage would effectively let the casino alter the practical rules of the game, undermining the Commission's comprehensive control and the statutory goal of preserving the integrity and credibility of casino regulation.
Uston violated no Commission blackjack rule. Because he played within the rules the Commission had adopted, Resorts could not independently exclude him merely because he was effective at exploiting those rules. Any common-law exclusion power Resorts might otherwise have possessed was displaced to that extent by the Act.
Issue #2
Whether, apart from the Casino Control Act, owners of places open to the public possess an absolute common-law right to exclude patrons without cause.
Holding
No. Property owners who open their premises to the public have a common-law duty not to exclude patrons arbitrarily or unreasonably, although they may exclude persons who disrupt operations or threaten safety or security.
Reasoning
The Court rejected the Commission's and Resorts' assumption that the common law gives amusement-place owners an unrestricted right to exclude anyone for any reason. Although some older authorities, including New Jersey precedent influenced by the English case of Wood v. Leadbitter, had recognized such a broad right, the common law had evolved substantially.
New Jersey decisions recognize that when private property is increasingly devoted to public use, the owner's property interests must accommodate legitimate interests of the public. The Court drew on State v. Schmid and State v. Shack, both of which balanced a property owner's control against reasonable individual access and rejected unreasonable exclusions.
The resulting common-law principle applies broadly to property owners who invite the public onto their premises, not merely to traditional public-callings such as common carriers and innkeepers. Such owners have no legitimate interest in arbitrarily or discriminatorily excluding members of the public who seek to use the premises as invited.
A proprietor may still exclude disorderly, intoxicated, dangerous, or otherwise disruptive people, and may have a duty to do so in appropriate circumstances. But Uston was neither disruptive nor a security threat. Thus, absent a valid Commission rule to the contrary, he retained the ordinary right of reasonable access to Resorts' blackjack tables.
Issue #3
Whether the Court should decide that the Casino Control Commission may lawfully promulgate a rule excluding card counters.
Holding
No. The Court expressly declined to decide whether the Act authorizes the Commission to ban card counters; that question would depend on a future Commission rule and the governing constitutional and statutory limits.
Reasoning
The Court distinguished Resorts' lack of authority from the Commission's potential authority. The Commission alone may determine whether player methods justify exclusion from regulated casino games, but the Court would not decide in advance whether the Commission could validly adopt a card-counting ban.
If the Commission considers such a rule, it must reconcile the Act's potentially competing objectives: casino vitality, fair odds for patrons, and maximum public participation. The Commission must also account for the Legislature's emphasis on stability, public confidence, and trust in the integrity of casino gaming.
A rule excluding players who lawfully use a successful strategy could diminish public confidence in the fairness of casino games, particularly because casinos may mistakenly identify non-card-counters as counters. At the same time, the Commission may appropriately recognize casinos' need for rules that permit a reasonable profit. The Commission, rather than an individual casino, must make that policy judgment in the first instance.