Slade v. Caesars Entm't Corp. , 2016 NV 36 ( 2016 )

132 Nev., Advance Opinion 349
IN THE SUPREME COURT OF THE STATE OF NEVADA
DR. JOEL SLADE, No. 62720
Appellant,
vs.
CAESARS ENTERTAINMENT
CORPORATION; PARIS LAS VEGAS FILED
OPERATING COMPANY, LLC, D/B/A
PARIS LAS VEGAS, MAY 1 2 2016
Respondents. L
K, DEMAN
SDI
BY At
CHIEF DEP 4 CLERK
Appeal from a district court order dismissing plaintiffs
complaint. Eighth Judicial District Court, Clark County; Allan R. Earl,
Judge.
Affirmed.
Nersesian & Sankiewicz and Robert A. Nersesian and Thea Marie
Sankiewicz, Las Vegas,
for Appellant.
Santoro Whitmire and James E. Whitmire and Jason D. Smith, Las
Vegas,
for Respondents.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
In this appeal, we are asked to consider whether common-law
principles referenced in NRS 463.0129(3)(a) permit gaming
establishments to exclude from their premises any person for any reason.
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We generally adopt the majority common-law rule permitting the
exclusion of persons for any reason that is not discriminatory or otherwise
unlawful.
FACTS AND PROCEDURAL HISTORY
Respondent Caesars Entertainment Corporation owns and
operates a number of casinos throughout the United States, including
Harrah's Tunica Hotel and Casino in Tunica, Mississippi. In 2011,
appellant Dr. Joel Slade received a letter from a representative of
Harrah's Tunica notifying him that he had been evicted from that casino
and that the eviction would be enforced at all Caesars-owned, -operated, or
-managed properties. Dr. Slade was interested in attending a medical
conference that was to take place at Paris Las Vegas Hotel and Casino, a
property owned and operated by Caesars. Dr. Slade contacted Caesars'
corporate headquarters in Nevada about attending the conference but was
informed that his eviction from Caesars' properties would be enforced at
Paris LV.
Dr. Slade then filed a complaint, alleging a breach of the duty
of public access and seeking declaratory and injunctive relief. Dr. Slade
does not challenge the casino's right to exclude for proper cause Instead,
Dr. Slade alleged that under the common law and NRS 463.0129(1)(e),
Caesars could not exclude him without cause.' He further argued that the
casino owed him a duty of reasonable access either as a purveyor of a
public amusement or as an innkeeper. Caesars then filed a motion to
dismiss the complaint for failure to state a claim upon which relief could
lit is unclear from the record or the briefs on appeal the reason
Caesars evicted Dr. Slade from its properties. Neither party sought
discovery on this issue.
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be granted pursuant to NRCP 12(b)(5), arguing that it has the right to
exclude Dr. Slade pursuant to NRS 463.0129(3)(a) and the common law.
The district court granted Caesars' motion to dismiss. This appeal
followed.
DISCUSSION
This court reviews questions of statutory interpretation de
nova. V& S Ry., LLC v. White Pine Cty., 125 Nev. 233, 239, 211 P.3d 879,
882 (2009). When a statute's language is unambiguous, this court does
not resort to the rules of construction and will give that language its plain
meaning. Id. "A statute must be construed as to 'give meaning to all of
[its] parts and language, and this court will read each sentence, phrase,
and word to render it meaningful within the context of the purpose of the
legislation." Id. (alteration in original) (quoting Harris Assocs. v. Clark
Cty. Sch. Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003) (internal
quotation omitted)). "Whenever possible, this court will interpret a rule or
statute in harmony with other rules and statutes." Albios v. Horizon
Cmtys., Inc., 122 Nev. 409, 418, 132 P.3d 1022, 1028 (2006) (internal
quotations omitted).
NRS 463.0129 declares Nevada's public policy concerning
gaming establishments. Pursuant to NRS 463.0129(1)(e), "all gaming
establishments in this state must remain open to the general public and
the access of the general public to gaming activities must not be restricted
in any manner except as provided by the Legislature." However, the
statute also provides that "[t]his section does not ... [abrogate 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
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establishment for any reason," NRS 463.0129(3)(a). 2 "Gaming' ... means
to deal, operate, carry on, conduct, maintain or expose for play any
game or to operate an inter-casino linked system." NRS 463.0153.
"Establishment' means any premises wherein or whereon any gaming is
done." NRS 463.0148.
Whether NRS 463.0129(3)(a) permits gaming establishments
to exclude any person for any reason pursuant to common-law principles is
an issue of first impression in Nevada. 3 Dr. Slade argues that the
Legislature has codified a common-law duty to provide reasonable access
to the patrons of gaming establishments in NRS 463.0129(1)(e). In
2 Nevada's legislative history regarding NRS 463.0129(3) is sparse,
with no discussion about how the Legislature viewed the common law or
why it used the term "any common-law right" in subsection 3. It does
appear that one reason the language was added to the statute in 1991 was
to ensure that gaming establishments in Nevada maintained the right to
evict card counters. See Hearing on S.B. 532 Before the Senate Comm. on
Judiciary, 66th Leg. (Nev., June 28, 1991) (remarks by Senator Bill
O'Donnell questioning whether "section 3b of the [statute's] amendment
meant the management of a casino could ask a patron to leave if the
management suspected card counting"); Hearing on S.B. 532 Before the
Senate Comm. on Judiciary, 66th Leg. (Nev., June 29, 1991) (explaining
that the amendment would allow gaming establishments to "evict
cheaters").
3 Caesars argues that this court has previously decided whether a
person may be excluded from the premises of a casino for any reason. See
S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403, 411-14, 23 P.3d 243,
248-50 (2001); Spilotro v. State, ex rel. Nev. Gaming Comm'n, 99 Nev. 187,
189, 661 P.2d 467, 468 (1983). However, these cases involved an alleged
constitutional right to access, not a common-law right, and in both cases
we held that the reason for the exclusion was not discriminatory and
therefore valid, making them inapplicable here. S.O.C., 117 Nev. at 413-
14, 23 P.3d at 249-50; Spilotro, 99 Nev. at 194, 661 P.2d 467 at 471-72.
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making his argument, Dr. Slade urges this court to read NRS
463.0129(1)(e) as requiring Caesars to provide him access to its Nevada
establishments because he is a member of the general public. Caesars
counters that NRS 463.0129(3)(a) preserves the common-law right to
exclude any individual for any otherwise lawful, nondiscriminatory
reason. The parties' arguments suggest that NRS 463.0129 presents
competing rights to the general public and gaming establishments
concerning access to a casino's premises. Therefore, we must first
interpret the language in these statutory subsections and determine the
common-law rule before reaching the merits of this appeal.
Construction of NRS 463.0129
The plain language of NRS 463.0129(1)(e) assures access to
the general public to a gaming premises, except as provided by the
Legislature. But the Legislature appears to have qualified that access by
recognizing a common-law right of gaming establishments in NRS
463.0129(3)(a) to eject any person from the premises In harmonizing
NRS 463.0129(1)(e) and 3(a), we must determine the breadth of an owner's
common-law right to evict patrons.
There is overwhelming authority recognizing the common-law
right of a private owner of a public amusement to exclude any person for
any reason from the premises. See, e.g., Brooks v. Chicago Downs Ass'n,
Inc., 791 F.2d 512, 513, 516 (7th Cir. 1986) ("find[ing] that Illinois follows
the common law rule" in detei mining that a race track operator had the
absolute right to exclude a patron for any reason); Ziskis v. Kowalski, 726
F. Supp. 902, 908 (D. Conn. 1989) ("The weight of the case law upholds the
common law rule that owners of places of amusement, like theaters and
racetracks, are permitted to exclude patrons without cause."); Donovan v.
Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111, 1112, 1115-16
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(Ind. 2010) (following the majority rule in holding that the owner of a
riverboat casino had a common-law right to exclude any person from its
premises). 4
A narrower interpretation of the common-law rule to exclude
persons stems from the Supreme Court of New Jersey's decision in Uston
v. Resorts International Hotel, Inc., 445 A.2d 370 (N.J. 1982). In Uston, a
casino banned a card counter from its premises based on his method of
playing blackjack. Id. at 371. The court held that the exclusion was
invalid because the controlling gaming authority "alone has the authority
4 Dr. Slade argues that, pursuant to NRS 1.030, Nevada should not
recognize the current majority position because the common law to be
applied to innkeepers is that of England as it existed in either 1776, at the
establishment of the Union, or in 1864 when Nevada became a state. We
do not agree with his contention for three reasons. We first note that NRS
463.0129(3)(a) specifically provides that the common law to be applied is
that which allows a gaming establishment to "eject any person from the
premises of the establishment for any reason." Moreover, Dr. Slade does
not cite to, and this court has not identified, any early cases determining a
gaming establishment's common-law right to exclude. Additionally, the
early common law does not appear to apply a uniform rule. Some early
common-law cases did not allow a private owner of a public amusement to
exclude any person for any reason, see, e.g., Donnell v. State, 48 Miss. 661,
681 (1873), while other cases did allow such exclusions, see, e.g., Madden
v. Queens Cty. Jockey Club, Inc., 72 N.E.2d 697, 698 (N.Y. 1947) ("At
common law a person engaged in a public calling, such as innkeeper or
common carrier, was held to be under a duty to the general public and was
obliged to serve, without discrimination, all who sought service. . . . On the
other hand, proprietors of private enterprises, such as places of
amusement and resort, were under no such obligation, enjoying an
absolute power to serve whom they pleased."). Finally, this court has
previously determined that, "[d]espite NRS 1.030, courts may reject the
common law where it is not applicable to local conditions." Rupert v.
Stienne, 90 Nev. 397, 399, 528 P.2d 1013, 1014 (1974). Accordingly, we
are not persuaded by the argument.
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to exclude patrons based upon their strategies for playing licensed casino
games." Id. at 372. The court went on to conclude that the common-law
right to exclude in New Jersey was "substantially limited by a competing
common law right of reasonable access to public places." Id.
We decline to follow the more narrow position that a common-
law right of reasonable access to public places limits a private owner's
right to exclude because its restrictive articulation of the common law is
inconsistent with the plain language of NRS 463.0129(3)(a). Thus, in
harmonizing NRS 463.0129(1)(e) and NRS 463.0129(3)(a), we conclude
that casino establishments are to be open to the general public but have
the common-law right to exclude any individual from the premises
pursuant to the majority common-law position.
We emphasize, however, the right to exclude is not without
significant and important limitation. We further conclude that NRS
463.0129(3)(a) does not grant gaming establishments an unlimited right to
exclude anyone for any reason as that common-law right can be abridged
by other statutory provisions. For example, under NRS 651.070, "Earn
persons are entitled to the full and equal enjoyment of the goods, services,
facilities, privileges, advantages and accommodations of any place of
public accommodation, [5] without discrimination or segregation on the
ground of race, color, religion, national origin, disability, sexual
5NRS 651.050(3)(a), (b), and (d) define "'[p]lace of public
accommodation" as "[a]ny inn, hotel, motel or other establishment which
provides lodging to transient guests," as well as restaurants, bars, and
theaters. Because casinos combine several of the elements, we conclude
that casinos are 'place [s] of public accommodation.'
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orientation, sex, gender identity or expression." 6 (Emphasis added.) This
interpretation of a gaming establishment's right to exclude is consistent
with other jurisdictions that recognize the majority common-law position.
See, e.g., Brooks, 791 F.2d at 513 ("[T]he operator of a horse race track has
the absolute right to exclude a patron from the track premises for any
reason, or no reason, except race, color, creed, national origin, or sex.");
Ziskis, 726 F. Supp. at 905 (recognizing that the common-law rule was
limited by a state law that "deals with public accommodations, including
places of amusement, creat[ing] . . . a right not to be discriminated against
on the basis of race, color, religion, or national origin"); Madden, 72 N.E.2d
at 698 ("The common-law power of exclusion. . . continues until changed
by legislative enactment. In this State, a statute explicitly covering 'race
courses' limits the power by prohibiting discrimination on account of race,
creed, color, or national origin."). Accordingly, we conclude that while
gaming establishments generally have the right to exclude any person, the
reason for exclusion must not be discriminatory or otherwise unlawful.
We now turn our attention to whether Dr. Slade's exclusion was for an
unlawful reason.
°In addition, the statutes governing Nevada's gaming industry are
encompassed in NRS Chapter 463. NRS 463.151 regulates the "exclusion
or ejection of certain persons from licensed establishments." Pursuant to
NRS 463.151(3)(a) and (c), the State Gaming Control Board has the
authority to determine who may be excluded and may consider, among
other things, whether the person has a "[p1-nor conviction of a crime" or a
otorious or unsavory reputation which would adversely affect public
confidence and trust that the gaming industry is free from criminal or
corruptive elements."
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Dr. Slade failed to demonstrate that his exclusion was for an unlawful
reason
This court reviews a district court's order granting a motion to
dismiss for failure to state a claim under "a rigorous, de novo standard of
review." Pack v. LaTourette, 128 Nev. 264, 267, 277 P.3d 1246, 1248
(2012). A complaint should be dismissed for failure to state a claim "only
if it appears beyond a doubt that [the plaintiff] could prove no set of facts,
which, if true, would entitle [the plaintiff] to relief." Buzz Stew, LLC v.
City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008).
Although it is unclear from the record why Caesars initially
evicted Dr. Slade from its property in Mississippi and this question was
not argued or considered below, it does appear that his exclusion from
Caesars' Las Vegas properties was based on that prior eviction. Dr. Slade
does not argue on appeal, nor did he litigate at district court, that he was
excluded from Caesars' properties for an unlawful reason. In his
complaint, Dr. Slade simply argued that he never acted "disorderly" on a
Caesars property or "cause [d] injury to any company affiliated with
Caesars" and alleged a breach of the duty of public access and sought
declaratory and injunctive relief. Dr. Slade did not ask for discovery on
the reason for his exclusion, which he undoubtedly would have been
entitled to. Because Dr. Slade failed to demonstrate that his exclusion
from Caesars' properties was for unlawful reasons, we conclude "beyond a
doubt that [he] could prove no set of facts, which, if true, would entitle
[him] to relief." Id.Innkeeper common law is not implicated here
One of our dissenting colleagues opines, and Dr. Slade
advances a similar argument on appeal, that gaming establishments,
when acting as innkeepers, have a common-law duty to allow access to any
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patron seeking lodging if there is not cause to exclude. We respectfully
disagree. We do not believe that the Legislature intended that gaming
establishments be subject to varying common-law duties. The plain
meaning of the statutory definition for gaming establishment encompasses
the entirety of the "premises wherein or whereon any gaming is done."
NRS 463.0148; NRS 463.0153; see also Premises, Black's Law Dictionary
(10th ed. 2014) (defining "premises" as a "building, along with its
grounds"). Arbitrarily limiting a gaming establishment's premises to the
nonhotel portions contradicts NRS 463.0148's plain meaning.
Further, the rule suggested by our colleague would result in
district courts parsing out parts of a gaming establishment's premises to
determine whether patrons may be excluded without cause or whether a
reason for exclusion must be given. Such an inquiry would create an
inconsistent application of the statutes because of the many ways a
gaming establishment can be configured and the variety of reasons guests
patronize hotel-casinos.
Moreover, NRS 463.0129(3)(a) specifically provides that the
common-law right to exclude "any person from the premises of fa gaming]
establishment for any reason" is not abridged. Had the Legislature
intended that an innkeeper common-law rule be weighed against the right
to exclude any person for any reason, in the context of gaming
establishments, it would have provided as much in NRS 463.0129(3). See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 107 (2012) ("The expression of one thing implies the exclusion
of others.").
According to the dissent, because hotel-casinos in Las Vegas
also offer amenities such as "convention centers, shopping malls,
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restaurants, swimming pools, wedding halls, concert halls, nightclubs,
bowling alleys, zoos, spas, and more," innkeeper common law may be
implicated. But we cannot determine in any principled manner why
innkeeper common law would apply to these communal spaces instead of
public amusement common law. See Uston v. Airport Casino, Inc., 564
F.2d 1216, 1217 (9th Cir. 1977) ("[T]hey were not acting in [an innkeeper]
capacity in their dealings with [the plaintiff]. The relationship
was . . . one of casino owner and prospective gambler. The policies upon
which the innkeeper's special common law duties rested are not present in
such a relationship ") Our dissenting colleague is also concerned that our
holding creates a monopolistic policy toward hotel-casino convention
centers, similar to that which originally prompted the innkeeper common
law. However, as noted in the dissent, innkeeper common law was created
"because inns were so far and few between that travelers found
themselves at the mercy of the innkeeper," raising monopolistic concerns.
Access to convention space in a city such as Las Vegas, where practically
every large gaming establishment has sizeable meeting areas, resulting in
fierce competition, in no way implicates the concerns expressed in the
original innkeeper common-law rule.
For these reasons, we conclude that innkeeper common law is
not implicated in this instance.
CONCLUSION
For the reasons set forth above, we conclude that, pursuant to
NRS 463.0129, gaming establishments generally have the right to exclude
any person from their premises; however, the reason for exclusion must
not be discriminatory or unlawful. Because Dr. Slade failed to plead or in
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any way demonstrate that his exclusion from Caesars' properties was for
unlawful reasons and thus could prove no set of facts, which, if true, would
entitle him to relief, we further conclude that the district court did not err
in granting Caesars' motion to dismiss pursuant to NRCP 12(b)(5).
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PICKERING, J., with whom DOUGLAS, J., agrees, dissenting:
The district court dismissed Slade's complaint under NRCP
12(b)(5) for failure to state a claim upon which relief can be granted.
Nevada adheres to the traditional rule that an action may not be
dismissed at the pleading stage "unless it appears to a certainty that the
plaintiff could prove no set of facts that would entitle him or her to
relief . drawing every inference in favor of the nonmoving party."
Holcomb Condo. Homeowners' Ass'n, Inc. v. Stewart Venture, LLC, 129
Nev., Adv. Op. 18, 300 P.3d 124, 128 (2013) (internal quotations omitted).
"The test for determining whether the allegations of a complaint are
sufficient to assert a claim for relief is whether the allegations give fair
notice of the nature and basis of a legally sufficient claim and the relief
requested." Vacation Viii., Inc. v. Hitachi Am., Ltd., 110 Nev. 481, 484,
874 P.2d 744, 746 (1994). This is not a difficult test to pass, and Slade's
allegations that Caesars, as an innkeeper and convention host, violated
the common law when it excluded him for no stated reason from all parts
of all of its properties more than meet the mark. I also disagree with the
proposition that a hotel and convention facility can exclude visitors on
their say-so alone, with no reason given. For these reasons, I would
reverse the district court's order of dismissal and remand, so the facts can
be developed in discovery and the case narrowed or resolved by summary
judgment or trial.
In his complaint, Slade alleges that he is a doctor who wanted
to visit a Caesars property in Las Vegas for a medical convention—a non-
gaming activity. Another Caesars' property, this one in Mississippi, had
sent Slade an "eviction" letter, stating without explanation that he was
excluded from all parts of all Caesars' properties in the United States. In
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his complaint, Slade alleges: "As an innkeeper operating an inn in
conjunction with a casino, defendants are bound by the common law
obligations of an innkeeper to accept all suitable travelers, and the
common law actually restricts the action (rather than allows the action)
taken by the defendants." Further, in Slade's opposition to Caesars'
motion to dismiss, Slade stated that he "would likely be staying at
defendants' inn" These allegations and argument render dismissal
inappropriate.
By statute, the Nevada Legislature has directed Nevada
courts to follow the common law in deciding when, and under what
circumstances, a property holding a gaming license can exclude or eject a
person from its premises NRS 463.0129(1)(e) states the general rule:
"[A]ll gaming establishments in this state must remain open to the
general public and the access of the general public to gaming activities
must not be restricted in any manner except as provided by the
Legislature." However, in addition to the general application of common
law under NRS 1.030, 1 NRS 463.0129(3)(a) states: "This section does
not . . . [abrogate 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." The
question thus becomes one of determining the scope and extent of the
common-law right of a gaming establishment to exclude a person from
gaming activities or to eject a person from the premises.
1 NRS 1.030 provides: "The common law of England, so far as it is not
repugnant to or in conflict with the Constitution and laws of the United
States, or the Constitution and laws of this State, shall be the rule of
decision in all the courts of this State."
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The common law differentiates between innkeepers and
proprietors of places of public amusement in terms of their ability to
exclude persons for any reason, or no reason. While the common law did
"not confer[ ] any right of access to places of public amusement," it held
that innkeepers, by virtue of the dependency their establishment induced
in members of the traveling public, could not refuse service without good
reason. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,
515 U.S. 557, 571 (1995). "At common law a person engaged in a public
calling, such as innkeeper or common carrier, was held to be under a duty
to the general public and was obliged to serve, without discrimination, all
who sought service. On the other hand, proprietors of private enterprises,
such as places of amusement and resort, were under no such obligation,
enjoying an absolute power to serve whom they please [I." Madden v.
Queens Cty. Jockey Club, 72 N.E.2d 697, 698 (N.Y. 1947) (citations
omitted).
The policies that led the common law to limit the right of an
innkeeper to exclude a member of the traveling public still have force
today. Originally, innkeepers had a duty to serve guests absent good
cause to exclude because inns were so far and few between that travelers
found themselves at the mercy of the innkeeper and were vulnerable to
extortion from the innkeeper. See Bruce Wyman, The Law of the Public
Callings as a Solution of the Trust Problem, 17 Harv. L. Rev. 156, 159
(1904). Thus, innkeepers were viewed as having a "virtual monopoly" over
a market serving the essential needs of the traveling public. Id. at 158. A
place of public amusement, by contrast, provided entertainment, not
necessary shelter, and so the law accorded the proprietor more leeway.
See id.
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The majority correctly notes that, drawing on this common-
law distinction, several courts have deemed gaming establishments, such
as race tracks, to be places of public amusement. See, e.g., Brooks v. Chi.
Downs Ass'n, Inc., 791 F.2d 512, 516-17 (7th Cir. 1986); Madden, 72
N.E.2d at 698. But these cases did not involve properties like Caesars
that have gaming and, in addition, offer vast convention and hotel space.
From a common-law perspective, hotel-casino-convention-centers
implicate both the innkeeper rule and the rule regarding places of public
amusement, a distinction the majority rejects. Yet, it is a fact that hotel-
casinos offer many amenities beyond gambling: hotel rooms, convention
centers, shopping malls, restaurants, swimming pools, wedding halls,
concert halls, nightclubs, bowling alleys, zoos, spas, and more. Neither
this court nor any other has endorsed the proposition that the mere
presence of a casino exempts a hotel/convention center from the common-
law rule of inclusivity applicable to innkeepers. See Spilotro v. State, ex
rel. Nev. Gaming Comm'n, 99 Nev. 187, 196, 661 P.2d 467, 473 (1983)
(Gunderson, J., concurring) (emphasizing that the Nevada Gaming
Commission's authority to exclude certain individuals from gaming
establishments did not mean that: an "excluded person' could not even
enter the Union Plaza Hotel in Las Vegas en route to the railway station,
which is situated within that hotel, [nor] lawfully attend political events
on the non-gaming portion of a gaming licensee's premises, ... nor pursue
any other legitimate pursuits on the non-gaming portion of a gaming
licensee's premises"; noting that such a holding would be deeply
problematic, for it would mean that an "excluded person' traveling by bus
through Nevada could not even visit the lavatories in several of our
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established bus stations, or eat at the lunch counters during rest stops,
because those facilities are in buildings also occupied by casinos").
The majority dismisses this important common-law distinction
and its public policy implications by relying solely on its statutory
interpretation of NRS 463.0129(3)(a), arguing: "Had the Legislature
intended that an innkeeper common-law rule be weighed against the right
to exclude any person for any reason, in the context of gaming
establishments, it would have provided as much in NRS 463.0129(3)."
But, the same argument can apply to the majority's interpretation. Had
the Legislature intended that thefl entire premises of a hotel-casino or any
gaming establishment have the absolute statutory right to exclude any
person for any reason, it would have provided as much in NRS
463.0129(3). However, the Legislature did not simply state that rule, as
the majority seems to believe. Rather, the Legislature incorporated and
preserved the common law in NRS 463.0129(3)(a), which requires a legal
analysis into the common-law rights and duties of innkeepers versus
places of public amusements. 2
2 The majority is construing NRS 463.0129(3)(a) as altering the
common-law duties of innkeepers by applying the right to exclude for
public amusements to the entire premises of a hotel-casino. I cannot
reconcile this interpretation with established canons of statutory
interpretation. See First Fin. Bank v. Lane, 130 Nev., Adv. Op. 96, 339
P.3d 1289, 1293 (2014) ("This court will not read a statute to abrogate the
common law without clear legislative instruction to do so."); Cunningham
v. Washoe Cty., 66 Nev. 60, 65, 203 P.2d 611, 613 (1949) (requiring "the
plainest and most necessary implication in the statute itself" for the
modification of common law by statutory enactment "where such acts are
not authorized by the express terms of the statute").
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The majority also takes issue with the concept that innkeeper
common law would apply to the many different facilities located within the
hotel-casino that arguably invoke public amusement common-law rules.
Besides common law, statutory authority provides that all the different
facilities, such as restaurants, swimming pools, wedding halls, etc., are
within the premises of innkeepers. See NRS 651.005 (defining "premises,"
under the section "Duties and Liabilities of Innkeepers," to include, but
not exhaustively, "all buildings, improvements, equipment and facilities,
including any parking lot, recreational facility or other land, used or
maintained in connection with a hotel, inn, motel, motor court,
boardinghouse or lodging house"). Moreover, under common law, places of
public amusement that are located within an innkeeper's premises may be
subject to the same common-law duties governing innkeepers. See Odom
v. E. Ave. Corp., 34 N.Y.S.2d 312, 316-17 (N.Y. Sup. Ct. 1942) (applying
the common-law duties of innkeepers to a restaurant located within the
hotel, concluding that the common law provides that a "guest has the
implied right to the use of such facilities as the character of the inn will
afford"); 43A C.J.S. Inns, Hotels, and Eating Places § 23 (2014) ("[A]n
innkeeper is bound to provide a guest with such facilities as the character
of the inn afford.").
But, even assuming that the common-law duties of innkeepers
should not apply to the entire premises of a hotel-casino, the majority
rejects the concept of "parsing out parts of a gaming establishment's
premises" This rejection directly contradicts the common-law
interpretation of mixed premises, which requires a factual analysis
regarding whether the patron intended to stay at the inn See Uston v.
Airport Casino, Inc., 564 F.2d 1216, 1217 (9th Cir. 1977) (recognizing that
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the hotel-casino may be considered an innkeeper, but the patron was only
challenging access to the casino for the opportunity to play blackjack, and
thus, "Mlle relationship was not one of innkeeper and patron, but rather
one of casino owner and prospective gambler"); Freudenheim v. Eppley, 88
F.2d 280, 283 (3d Cir. 1937) (vacating lower court's conclusion that
plaintiff was not a guest as a matter of law after plaintiff frequented the
restaurant inside the hotel, concluding that the determination of one's
guest status is based on intent, which is a question of fact for the jury);
Alpaugh v. Wolverton, 36 S.E.2d 906, 908-09 (Va. 1946) ("[W]here a hotel
operator operates a restaurant for the accommodation both of its guests
and of the public in general, he may be an innkeeper as to some of his
patrons and a restaurateur as to others.... [T]he controlling factor in
determining whether the relationship of innkeeper and guest has been
established is the intent of the parties."); 40A Am. Jur. 2d Hotels, Motels,
Etc. § 18 (2008) ("A person claiming to be a guest must have the intention
to become a guest and be received in that capacity by the innkeeper. .. . In
litigation, there may be a jury question whether an innkeeper understood
that a person intended to occupy a room.").
Here, Slade alleged that Caesars violated the common-law
duty of innkeepers and, drawing every inference in his favor, he
sufficiently alleged that he intended to patronize the inn. Moreover, even
if he only wanted to attend the convention, it is not clear that the public
amusement rule, rather than the innkeeper rule, should apply. As Las
Vegas continues to market itself as a convention-center destination, a
policy that would allow a hotel-casino to become the exclusive venue for
conventions, yet retain unfettered discretion to exclude persons who want
to attend those conventions, invokes the same concerns that drove the
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innkeeper common law—a theory based on the monopolistic nature of the
inn.
The majority incorrectly interprets the monopolistic nature of
convention centers, arguing that "practically every large gaming
establishment has sizeable meeting areas, resulting in fierce competition,
[which] in no way implicates the concerns expressed in the original
innkeeper common-law rule." This interpretation fails to address the
exclusivity of a particular convention. While venue-shopping, a business
wishing to host a convention has many options, but once that business
selects a particular venue, it becomes the exclusive venue for that
convention. As is the case here, the medical convention Slade wished to
attend was hosted by a Caesars property. After being excluded, Slade
could not attend the same convention at another location because that
particular Caesars' property was the exclusive venue for the convention.
Thus, the concept of a virtual monopoly is arguably as present, if not more,
for conventions than for innkeepers. But even assuming the public
amusement rule, not the innkeeper rule, applies to the pure convention-
goer, it is not possible to draw this much from the record below at this
stage of the case, where, on the face of the pleadings, Slade alleges that he
was invoking the common-law right not to be excluded by an innkeeper
from the inn.
The majority correctly observes that, under NRS 651.070,
Caesars cannot illegally discriminate against Slade or other prospective
patrons on the basis of race or other protected status. But this statutory
prohibition requires the excluded patron to plead and prove the illegal
discrimination. The common law, by contrast, requires the innkeeper to
give a reason for the exclusion, rather than rest on the right to exclude for
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any reason, or no given reason at all. The difference is meaningful, as the
common law recognized.
The record in this case is wholly undeveloped. We do not
know, for example, why Caesars sent Slade the letter it did, or whether
Slade could attend the medical convention without walking across the
casino floor. Without more than the bare allegations in Slade's complaint,
though, I cannot reconcile an absolute right to exclude for any reason or no
reason at all to the entire premises of a hotel-casino with the common-law
duty of innkeepers, which only allows exclusion for good cause. Thus, I
would reverse the district court's dismissal of Slade's complaint and
remand for further proceedings.
I dissent.
1 J.
Pickering
I concur:
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CHERRY, J., dissenting:
I join in the dissent authored by Justice Pickering, but I write
separately because I cannot support the majority's conclusion that a
plaintiff bears the responsibility of proving, prior to conducting discovery,
that a gaming and entertainment corporation has chosen to discriminate
against him for an unlawful reason.'
The majority correctly commences with the plain language
of the statute. NRS 463.0129(3)(a) certainly permits "a gaming
establishment to exclude any person from gaming activities or eject any
person from the premises of the establishment for any reason." The
majority's opinion today, if not narrowly read, could be interpreted to say
that a casino can exclude any person for any reason or for no reason at all,
which is contrary to Nevada law.
This distinction is important here because in its majority
opinion today, this court has precluded Dr. Slade from ascertaining why
Caesars Entertainment excluded him from its properties. The reason for
'This matter came before the district court as an NRCP 12(b)(5)
motion to dismiss. Given the procedural posture of the case, the court
below was obligated to accept as true everything in the complaint as it
existed at that time and draw all inferences in favor of the plaintiff.
Stubbs v. Strickland, 129 Nev., Adv. Op. 15, 297 P.3d 326, 328-29 (2013).
It does not appear that such consideration was given to appellant.
Granting dismissal with nothing more than the complaint was error.
Allowing some discovery on this issue might have provided significant
information to appellant.
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Dr. Slade's exclusion is crucial. Although the statute allows Caesars to
exclude him for any reason, NRS 651.070 prevents "any place of public
accommodation" from discriminating "on the ground of race, color,
religion, national origin, disability, sexual orientation, sex, gender identity
or expression."
This case is not the first time that this court or the United
States Supreme Court has held that a right to exclude for any reason is
not without its limits. In the arena of jury selection, for example, although
an attorney may exercise any number of peremptory challenges to excuse
a juror without cause, it is a long-standing principle that an attorney may
not do so on the basis of race or gender. Batson v. Kentucky, 476 U.S. 79,
89 (1986); J.E.B. v. Alabama, 511 U.S. 127, 130-31 (1994). More recently,
the United States Court of Appeals for the Ninth Circuit extended this
principle to exclusions on the basis of sexual orientation. SmithKline
Beecham Corp. v. Abbott Labs., 740 F.3d 471, 486 (9th Cir. 2014). In the
aftermath of these cases, if a party alleges a violation, then that party is
not required to prove it; rather, the burden shifts to the other party to
proffer a nondiscriminatory reason for the dismissal.
The principles of Batson, J.E.B., and SmithKline are no
different here, which is why the Legislature enacted MRS 651.070. I do
not believe Nevada law allows (or that the Nevada Legislature ever
intended) for Caesars Entertainment, or any other gaming establishment,
to engage in potentially unlawful discrimination simply because it chooses
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not to give a reason for its actions. 2 For these reasons, I would allow this
case to proceed to discovery. 3 Accordingly, I respectfully dissent.
2 Nothing in this dissent should be read as an accusation that
Caesars Entertainment actually engaged in unlawful discrimination. The
point is that without discovery, we cannot be sure.
3 Thebetter practice would have been for the court sua sponte to
require respondents to file a more definite statement rather than grant
dismissal outright.
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