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Saturday, November 19, 2011

Exclusion of Patron by a Casino II


Previously within "Exclusion of Patrons by a Casino," part one, I introduced you to the body of case law that say no casino exclusion shall violate State and Federal civil rights laws.  In following what I have learned on the citation of authorities of law one should cite them from the highest to the lowest court or jurisdiction.  Hence in part one I gave you the United States Constitutional Article, The State of New Jersey Constitutional Article and then the primary New Jersey Statute we will be discussing in relation to exclusions of patrons from a casino.

Please note that the posting headed "Insurance Open-Insurance Closed" cites N.J.S.A. 5:12-63 Duties of the Commission and contrasts the changes made by the amendment of 2011. I made that posting to bring to your attention, the fact that before the economy took a downward turn, the Casino Control Commission was present on all the casino floors in Atlantic City as mandated by N.J.S.A. 5:12-63 (f). With the afore reference made I will now continue with the law a N.J. casino should not violate upon evicting a patron.

N.J.Stat. 5:12-71 Regulation requiring exclusion of certain persons
a) The division shall, by regulation, provide for the establishment of a
list of persons who are to be excluded or ejected from any licensed casino
establishment.  Such provisions shall define the standards for exclusion,
and shall include standards relating to persons:
(1)  Who are career or professional offenders as defined by
regulations promulgated hereunder;
(2)  Who have been convicted of a criminal offense under the
laws of any state or of the United States, which is punishable by more than
six months in prison, or any crime or offense involving moral turpitude; or
(3)  Whose presence in a licensed casino hotel would, in the
opinion of the director, be inimical to the interest of the State of New Jersey
or of licensed gaming therein, or both.
The division shall promulgate definitions establishing those categories
of persons who shall be excluded pursuant to this section, including cheats
and persons whose privileges for licensure or registration have been revoked.
b) Race, color, creed, national origin or ancestry, or sex shall not be a
reason for placing the name of any person upon such list.
c) The division may impose sanctions upon a licensed casino or
individual licensee or registrant in accordance with the provisions of this act
if such casino or individual licensee or registrant knowingly fails to exclude
or eject from the premises of any licensed casino any person placed by the
division on the list of persons to be excluded or ejected.
d) Any list compiled by the division of persons to be excluded or
ejected shall not be deemed an all-inclusive list, and licensed casino
establishments shall have a duty to keep from their premises persons known
to them to be within the classifications declared in paragraphs (1) and (2) of
subsection a. of this section and the regulations promulgated thereunder, or
known to them to be persons whose presence in a licensed casino hotel
would be inimical to the interest of the State of New Jersey or of licensed
gaming therein, or both, as defined in standards established by the division.
e) Prior to placing the name of any person on a list pursuant to this
section, the division shall serve notice of such fact to such person by
personal service, by certified mail at the last known address of such person,
or by publication daily for one week in a newspaper of general circulation in
Atlantic City.
f) Within 30 days after service of the petition in accordance with
subsection e. of this section, the person named for exclusion or ejection may
demand a hearing before the director or the director’s designee, at which
hearing the director or the director’s designee shall have the affirmative
obligation to demonstrate by a preponderance of the evidence that the
person named for exclusion or ejection satisfies the criteria for exclusion
established by this section and the applicable regulations.  Failure to
demand such a hearing within 30 days after service shall be deemed an
admission of all matters and facts alleged in the director’s petition and shall
preclude a person from having an administrative hearing, but shall in no
way affect his or her right to judicial review as provided herein.
g) The division may make a preliminary placement on the list of a
person named in a petition for exclusion or ejection pending completion of a
hearing on the petition.  The hearing on the application for preliminary
placement shall be a limited proceeding at which the division shall have the
affirmative obligation to demonstrate that there is a reasonable possibility
that the person satisfies the criteria for exclusion established by this section
and the applicable regulations.  If a person has been placed on the list as a
result of an application for preliminary placement, unless otherwise agreed
by the director and the named person, a hearing on the petition for
exclusion or ejection shall be initiated within 30 days after the receipt of a
demand for such hearing or the date of preliminary placement on the list,
whichever is later.
h) If, upon completion of the hearing on the petition for exclusion or
ejection, the director determines that the person named therein does not
satisfy the criteria for exclusion established by this section and the
applicable regulations, the director shall issue an order denying the petition. 
If the person named in the petition for exclusion or ejection had been placed
on the list as a result of an application for preliminary placement, the
director shall notify all casino licensees of the person’s removal from the list.
i) If, upon completion of a hearing on the petition for exclusion or
ejection, the director determines that placement of the name of the person
on the exclusion list is appropriate, the director shall make and enter an
order to that effect, which order shall be served on all casino licensees. 
Such order shall be subject to review by the commission in accordance with
regulations promulgated thereunder, which final decision shall be subject to
review by the Superior Court in accordance with the rules of court.

N.J.Stat. 5:12-71.1 Repeat offenders excludable from casino hotel
A casino licensee may exclude or eject from its casino hotel any person
who is known to it to have been convicted of a crime, disorderly persons
offense, or petty disorderly persons offense committed in or on the premises of
any casino hotel.  Nothing in this section or in any other law of this State shall
limit the right of a casino licensee to exercise its common law right to exclude
or eject permanently from its casino hotel any person who disrupts the
operations of its premises, threatens the security of its premises or its
occupants, or is disorderly or intoxicated.

N.J.Stat. 5:12-27  "Hotel" or "approved hotel"
"Hotel" or "approved hotel" - A single building, or two or more buildings which are physically connected in a manner deemed appropriate by the commission and which are operated as one casino-hotel facility under the provisions of the "Casino Control Act," P.L.1977, c. 110 (C. 5:12-1 et seq.), located within the limits of the city of Atlantic City as said limits were defined as of November 2, 1976, and containing not fewer than the number of sleeping units required by section 83 of P.L.1977, c. 110 (C. 5:12-83), each of which sleeping units shall:  a. be at least 325 square feet measured to the center of perimeter walls, including bathroom and closet space and excluding hallways, balconies and lounges; b. contain private bathroom facilities; and c. be held available and used regularly for the lodging of tourists and convention guests.

N.J.A.C. 19:48-1.3 Criteria for Exclusion
(a)  The exclusion list may include any person who meets any of the following criteria:
1.        A career or professional offender whose presence in a licensed casino establishment would be inimical to the interest of the State of New Jersey or of licensed gaming therein;
2.        An associate of a career or professional offender whose association is such that his or her presence in a licensed casino establishment would be inimical to the interest of the State of New Jersey or of licensed gaming therein;
3.        Any person who has been convicted of a criminal offense under the laws of any State, or of the United States, which is punishable by more than six months in prison, or who has been convicted of any crime or offense involving moral turpitude, and whose presence in a licensed casino establishment would be inimical to the interest of the State of New Jersey or of licensed gaming therein; or
4.        Any person whose presence in a licensed casino establishment would be inimical to the interest of the State of New Jersey or licensed gaming therein, including, but not limited to:
i.        Cheats;
ii.        Persons whose privileges for licensure have been revoked;
iii.        Persons who pose a threat to the safety of the patrons or employees of a casino licensee;
iv.        Persons with a documented history of conduct involving the undue disruption of the gaming operations of casino licensees; and
v.        Persons subject to an order of the Superior Court of New Jersey excluding such persons from all casino hotel facilities.
(b)  For purposes of (a) above:
1.        A person's presence may be considered "inimical to the interest of the State of New Jersey or of licensed gaming therein" if known attributes of such person's character and background:
i.        Are incompatible with the maintenance of public confidence and trust in the credibility, integrity and stability of licensed casino gaming;
ii.        Could reasonably be expected to impair the public perception of, and confidence in, the strict regulatory process created by the Act; or
iii.        Would create or enhance a risk of the fact or appearance of unsuitable, unfair or illegal practices, methods or activities in the conduct of gaming or in the business or financial arrangements incidental thereto.
2.        A finding of inimicality may be based upon the following:
i.        The nature and notoriety of the attributes of character or background of the person;
ii.        The history and nature of the involvement of the person with licensed casino gaming in New Jersey or any other jurisdiction, or with any particular casino licensee or licensees or any related company thereof;
iii.        The nature and frequency of any contacts or associations of the person with any casino licensee or licensees, or with any employees or agents thereof; or
iv.        Any other factor reasonably related to the maintenance of public confidence in the efficacy of the regulatory process and the integrity of gaming operations, the casino industry and its employees.
(c)  Race, color, creed, national origin or ancestry, or sex shall not be a reason for placing the name of any person upon such list.

N.J.A.C. 19:48-1.4  Duties of the Division of Gaming Enforcement
(a)  The Division shall, on its own initiative, or upon referral by the Commission, investigate any individual who would appear to be an appropriate candidate for placement on the exclusion list.
(b)  If, upon completion of an investigation, the Division determines that an individual should be placed on the exclusion list, the Division shall file a petition for exclusion with the Commission, identifying the candidate and setting forth a factual basis why the Division believes the candidate satisfies the criteria for exclusion established by section 71 of the Act and this chapter.
(c)  If the Division files a complaint alleging a violation of section 71d of the Act and N.J.A.C. 19:48-1.7(a)2 against any licensee, the Division shall file simultaneously a petition to exclude the person alleged in the complaint to meet the criteria for exclusion in N.J.A.C. 19:48-1.3.
(d)  If, upon completion of an investigation undertaken upon referral by the Commission, the Division determines that an individual should not be placed on the exclusion list, the Division shall so state in writing to the Commission.

N.J.A.C. 19:48-1.5  Procedure for entry of names
(a)  The Commission may place a person on the exclusion list as follows:
1.        Upon petition of the Division in accordance with the procedures set forth at N.J.A.C. 19:42-4; or
2.        Upon receipt of an order of the Superior Court of New Jersey excluding such person from all casino hotel facilities.  The Commission shall consider such action forthwith upon receipt of the court order, with at least 15 days notice to the Division and to such person by certified mail at his or her last known address.

N.J.A.C. 19:48-1.5  Procedure for entry of names
(a)  The Commission may place a person on the exclusion list as follows:
1.        Upon petition of the Division in accordance with the procedures set forth at N.J.A.C. 19:42-4; or
2.        Upon receipt of an order of the Superior Court of New Jersey excluding such person from all casino hotel facilities.  The Commission shall consider such action forthwith upon receipt of the court order, with at least 15 days notice to the Division and to such person by certified mail at his or her last known address.

N.J.A.C. 19:48-1.5A  Application for preliminary placement of candidate on list
(a)  In addition to filing a petition for exclusion, the Division may, in its discretion, file an application with the Commission seeking preliminary placement of the candidate on the exclusion list pending completion of the plenary hearing on the petition for exclusion.  An application for preliminary placement on the list shall be supported by reliable documentary or other evidence.  Upon receipt of an application for preliminary placement on the list, the Commission shall schedule a preliminary exclusion hearing and notify the candidate in accordance with the provisions of N.J.A.C. 19:42-4.
(b)  If, upon completion of the preliminary exclusion hearing, the Commission determines that the reliable documentary or other supporting evidence establishes a reasonable possibility that the candidate satisfies the criteria for exclusion established by section 71 of the Act and this chapter, the Commission shall issue a preliminary order placing the candidate on the exclusion list pending the issuance of a final order in accordance with the provisions of N.J.A.C. 19:48-1.5. A preliminary order designating a candidate as an excluded person shall be effective as to a particular casino licensee upon its service upon that casino licensee.
(c)  The preliminary placement of a candidate on the exclusion list pursuant to section 71 of the Act, N.J.A.C. 19:42-4 and this chapter shall have the effect of requiring the exclusion or ejectment of the excluded person from any casino hotel facility.

N.J.A.C. 19:48-1.7  Duty of casino licensee
(a)  A casino licensee shall exclude or eject the following persons from its casino hotel facility:
1.        Any excluded person; or
2.        Any person known to the casino licensee to satisfy the criteria for exclusion set forth in section 71 of the Act and N.J.A.C. 19:48-1.3(a).
(b)  If an excluded person enters, attempts to enter, or is in a casino hotel facility and is recognized by the casino licensee, the casino licensee shall immediately notify the Commission and Division of such fact.
(c)  The Commission may, upon request of any casino licensee or any person who has been excluded or ejected from a casino hotel pursuant to (a)2 above, refer a matter to the Division for investigation to determine whether such person meets the criteria for exclusion provided in N.J.A.C. 19:48-1.3.
(d)  It shall be the continuing duty of a casino licensee to inform the Commission and Division in writing of the names of persons it believes are appropriate for placement on the exclusion list.

New Jersey Decisional Case Law

Knight v. Margate, 86 N.J. 374 (Supreme Court of N.J)

Prinz v. Greate Bay Casino, 705 F.2d 692 (3rd Circuit Court of Appeals)

Simone v. Golden Nugget, 844 F.2d 692 (3rd Circuit Court of Appeals)

Friedman v. Borgata, 2009 U.S. Dist. LEXUS 29084 (D.N.J)

State v. David Morse, 276 N.J. Super 129 (Superior Court of N.J.)

Bartolo v. Boardwalk Regency Hotel, 185 N.J. Super 534 (Superior Court of N.J.)

With the above imparted, this is mission control, all those that study the laws above will have no problem following my two civil actions. I do have one more vital bit of information to share with you and it will be brief.  The method to my madness being that, if I get the laws set before you now, during the presentation of the case I can refer you back to these postings and you will already have an understanding or basis in law. Also keep in mind that I will be presenting a machination that works its way up, from the casino floor, up through the U.S. Dist. Court.

Some will skip through the bulk of the information I am relaying to all at there peril. But I promise you that if you grasp these law you will become captivated as I reveal documentary proofs to substantiate my every allegation. I thank you for the time you spend reading my post, which help relieve the frustrations and stress caused by my court battle.  I set this information before in my effort to make injustice known and eliminate corruption. Happy and Knowledgeable Gaming as always!

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