Slade v. Caesars Entertainment, 132 Nev. , 373 P.3d 74
(2016): The Nevada Supreme Court—just barely—holds gaming properties have a free hand to evict anybody so long as they don't discriminate

For some reason (never made clear to our State Supreme Court), Dr. Joel Slade was “86'd” from Harrah's Tunica Hotel and Casino—a Caesars Entertainment Corp. property in Mississippi. He even got a letter from Harrah's Tunica telling him he was barred from every other Caesars establishment, too.

But Dr. Slade wanted to attend a medical convention at Paris Las Vegas Hotel & Casino—another Caesars property. He wrote to Caesars' Las Vegas corporate headquarters about attending the convention, to which (and excuse the pun) Caesars said “no dice!”

Dr. Slade then sued Caesars contending he'd been denied his right to public access: After all, Dr. Slade said, Paris L.V. isn't just a casino and “purveyor of a public amusement.” It's also an innkeeper providing public accommodations having nothing to do with gaming, to which he was entitled “reasonable access.”

Caesars moved to dismiss arguing at common-law it could exclude anyone from its property for any reason. And while Nevada's applicable gaming statute requires “access of the general public to gaming activities…except as provided by the Legislature,” it does not “[a]brogate or abridge any common-law right of a gaming establishment to exclude any person from gaming activities or eject any person from the premises of the establishment for any reason.” NRS 463.0129(1)(e) and (3)(a).

The district court saw things Caesars' way; gaming establishments could exclude or evict anybody for any non-discriminatory reason; and Dr. Slade appealed. Easy case right? Apparently not.

In a 4-3 decision, the Slade majority held NRS 463.0129(1)(e) and (3)(a), when read together, meant “casino establishments are to be open to the general public but have the common-law right to exclude any individual from the premises[.]” Slade, 373 P.3d at 77, (emphasis is original). The exception: “exclusion must not be discriminatory or otherwise unlawful.” Id. at 78. And since Dr. Slade didn't allege discrimination, Slade upheld the district court's dismissal.

A dissent by Justice Kristina Pickering criticized the majority's reliance on NRS 463.0129 for allowing a gaming licensee's almost unfettered right to evict and exclude a patron. Instead, she wrote that “the common law differentiates between innkeepers and…public amusement[s]” and that

[w]hile the common law did not confer any right of access to places of public amusement…innkeepers, by virtue of the dependency their establishment induced in members of the traveling public, could not refuse service without good reason.Id. at 80 (internal quotes and citations omitted).

The modern reality is that casinos aren't just card rooms and gaming parlors anymore. While gambling remains an economic mainstay, under the roof of a state- of-the-art resort-casino is a host of revenue-producing, non-gaming businesses, among them (more-often-than-not) an expansive hotel; restaurants; theaters; shopping malls; convention facilities; and other public amenities.

The majority opinion in Slade seems to preserve what's long been an assumed status quo: So long as it's not discriminatory (i.e. based on race, ethnicity, and so forth), a casino can evict or exclude anybody, anytime, for any reason, or no reason at all. But what Justice Pickering, and her co-dissenters, Justices Michael Douglas and Michael Cherry, seem to be saying is that by becoming de facto “innkeepers” and branching out into areas of public accommodation (mostly for profit), gaming licensees should not have a free hand in who has “reasonable access” to non-gaming sections of the property.

Instead, the Slade dissenters would shift the burden from “the excluded person to plead and prove illegal discrimination” and place it on the “innkeeper to give a reason for the exclusion, rather than rest on the right to exclude for any reason, or no given reason at all. The difference is meaningful as the common-law recognized.” Id. at 82.

AN AFTER-WORD (or TWO)

Lest one think Slade addresses a marginal issue that's been put to rest, consider two things: First, the swing vote in Slade, Justice Nancy Saitta, has since retired. How Justice Lidia Stiglich, now the seventh member of the Nevada Supreme Court, might view a variation on the same theme if it were to ever reach Nevada's high court is too speculative to venture. But it should go without saying lawsuits brought by “86'd” patrons—sometimes forcibly removed from the property, sometimes not; or barred from a premises for sundry reasons—are commonplace. The issue of “reasonable access” in a case with “bad facts” could easily go the other way.

And second, as this post was written, video of internist, Dr. David Dao, being dragged from his seat, and down the aisle of a United Airlines commuter plane, had gone viral. https://www.youtube.com/watch?v=dASATLLvGRM (see below) United's stock has dropped; social media is buzzing with contempt for the heavy-handed way the airline handled the situation, and that United's stated reason for the forced eviction—that the flight was “overbooked”—was every bit as bogus as it blaming Dr. Dao's “belligerence” for causing his own injuries. The takeaway is simple enough—if “ordinary” people—read, jurors—are told they can't be on a public conveyance, or in what they perceive as a public place (and god forbid there's a forcible removal like Dr. Dao's), they'll think there should be a better reason for excluding them than “I can kick you out if I want to.”

©BARRON & PRUITT, LLP, 2017