So it’s sorta refreshing to see a small-time gambler put one over on the gaming industry.
Tom Donovan, our hero in this story, likes to play blackjack at the Grand Victoria riverboat casino in Rising Sun, Indiana.
For the uninitiated, blackjack is the card game in which the object is to accumulate cards with a value nearer to 21 than the dealer.
Donovan also happens to be a card counter.
Card counting is a tactic used by some blackjack players to determine when they have an advantage against the dealer. Card counters systematically keep track of the cards as they are dealt and adjust their bets accordingly.
Casinos don’t like card counting because someone skilled in the art can actually increase their chances of winning.
Apparently, Donovan is a pretty good card counter because he came to the attention of Patrick Banfield, the blackjack pit boss at the Grand Victoria.
Now, card counting isn’t illegal in Indiana so long as you do it in your head, but casinos like to limit their losses.
Not liking what was going on at his blackjack tables, Banfield allegedly communicated to Donovan that he could continue to play at the Grand Victoria only so long as he limited his bets to $25 per hand.
All was well until June 2006 when Sonny Duquette (gotta love that name) replaced Banfield as the pit boss.
Duquette barred Donovan from the blackjack tables altogether, and later kicked him out of the casino.
So we have our lawsuit.
Donovan sued Grand Victoria for breach of implied contract based on Donovan’s alleged understanding with Banfield.
In addition, Donovan requested a declaratory judgment providing that he could not be excluded from blackjack for counting cards.
Donovan got nowhere with Judge Robyn Moberly of the Marion Superior Court, but last Friday the Indiana Court of Appeals issued a decision that should warm the hearts of card counters the world over.
No, the court upheld the dismissal of Donovan’s contract claim, finding a “lack of mutuality of obligation” regarding his understanding with the old pit boss Banfield.
But, going to the heart of the matter, the court rejected Grand Victoria’s argument that the casino had a common law right to exclude any prospective patron for a given reason or for no reason at all, so long as civil rights laws are not violated.
“Grand Victoria may not simply take refuge in the common law right of exclusion, inasmuch as it is the public policy of this State that gambling is subject to ‘strict regulation,’and the [Indiana Casino Control] Commission has been given exclusive authority to set rules of riverboat casino games,” the court explained. “The Commission did not enact a prohibition against card counting and Grand Victoria did not seek a prohibition by rule amendment.”
The court concluded that “Donovan was ejected solely for his mental conduct in the course of casino blackjack, a Commission-regulated game, and thus his ejection is not protected by the common law.” (Donovan v. Grand Victoria Casino & Resort)
So Donovan gets his court order that Grand Victoria may not exclude him from blackjack because he counts cards.
And we’re likely to see more consumer-friendly decisions as more and more states legalize casino gambling.
For years, most gaming law was developed in Nevada where legislators, regulators and judges are understandably sensitive to protecting a core state industry.
Where casino gambling is less of an institution, the bet here is that courts will be more straightforward in applying consumer and tort law to cases brought by aggrieved gamblers.
— Pat Murphy
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