Silbert v. Ramsey

COUCH, Judge. Philip P. Silbert, appellant in the instant appeal, has been excluded from the Timonium Racetrack and is prohibited from attending race meetings there under the threat of his arrest for trespassing. In objection to his exclusion, appellant raises issues of common law and constitutional rights. Specifically, he questions whether the owner of the track has the common law right to exclude him arbitrarily, and whether he has a common law right of access.

Furthermore, he contends that his constitutional rights of due process and equal protection were violated by such exclusion. We hold that appellant’s contentions are without merit. The facts of this case are not in dispute. Timonium Racetrack, which sponsors horse racing meets sanctioned by the Maryland Racing Commission, is owned and operated by the Maryland State Fair and Agricultural Society, Inc., appellee, which is a private organization.

Security at the racetrack is provided by the Thoroughbred Racing Protec ⁹⁹ tive Bureau (hereinafter “TRPB”). TRPB is a private, nationwide investigative agency engaged by various racetrack operators to provide track security. William L. Ramsey, appellee, was in charge of the TRPB activities in Maryland at the time the instant action began. The appellant, Silbert, has a criminal record.

In 1969, he was convicted of conspiring to, and of violating the Maryland lottery laws. See Silbert v. State, 12 Md.App. 516, 280 A.2d 55 , cert. denied, 263 Md. 720 (1971) (affirming appellant’s conviction). He was incarcerated from March 17, 1972 until paroled on June 5, 1975; he will remain on parole until sometime in 1984. According to Ramsey, TRPB, pursuant to guidelines established in 1956 by the Thoroughbred Racing Association, an organization connected with TRPB, set up a policy of excluding persons from racetracks who had a history of involvement with illegal gambling activities or organized crime, or who had been convicted of other serious crimes.

The purpose of this policy was to protect the integrity of the legal gambling activity conducted at Maryland tracks. Ramsey had the responsibility to determine who was undesirable and should be excluded, subject, however, to the track owner’s review. He admitted that there had been occasions when the owner disagreed with him, and other instances when he himself did not exclude certain persons similarly situated to the appellant, apparently because they were “informers.” Because of his past conviction, appellant was advised by Ramsey and the TRPB on several occasions not to return to any of the Maryland thoroughbred racetracks and told that he would be arrested for trespassing if he attempted to enter the Timonium Racetrack as a spectator. Appellant desired to attend race meetings at Timonium and believed his exclusion was unlawful; consequently, he filed a Bill of Complaint seeking an injunction restraining the owner and its agents from arresting or ejecting him from those portions of the track open to the general public unless appellees obtained a court order permitting such ¹⁰⁰ action.

The Circuit Court for Baltimore County denied appellant’s requested relief and this appeal followed. We granted certiorari prior to consideration by the Court of Special Appeals in order to consider questions of public importance. I The issue in the instant appeal is whether a person who has been convicted of violating the lottery laws can be barred from attending horse races at a racetrack operating under license of the Maryland Racing Commission. In Greenfeld v. Maryland Jockey Club, 190 Md. 96 , 57 A.2d 335 (1948), this Court held that the operator of a racetrack can, without reason or sufficient excuse, exclude a person from attending its races so long as the exclusion does not violate an individual’s civil rights.

Id. at 102, 106 , 57 A.2d at 337, 339 . The racetrack operator “ ‘has the power to admit as spectators only those whom he may select, and to exclude others solely of his own volition, as long as the exclusion is not founded on race, creed, color or national origin.’ ” Id. at 102 , 57 A.2d at 337 (quoting Madden v. Queens County Jockey Club, 296 N.Y. 249 , 72 N.E.2d 697, 698 , cert. denied, 332 U.S. 761 , 68 S.Ct. 63 , 92 L.Ed. 346 (1947)). In addition, in Greenfield the Court held that the plaintiff did not have a right to be admitted to race meetings. Id. [ 190 Md. 96 ] at 106, 57 A.2d at 339 .

Appellant nevertheless contends that the decision in Greenfeld is not controlling. Appellant contends that the common law principle of the right of reasonable access to public places was well established before Greenfeld was decided. The right to exclude must be balanced against the common law right of reasonable access to places of public accommodation and, appellant maintains, the Court failed to recognize this in Greenfeld . Appellant attempts tracing a right of reasonable access through civil rights legislation and cases.

He contends that the Maryland Public Accommodations Law, Maryland Code (1957, 1979 Repl.Vol., 1983 ¹⁰¹ Cum.Supp.), Article 49B, § 5 1 (counterpart of 42 U.S.C. § 2000a (1982)) finally established the right of reasonable access to places of public accommodation. Appellant suggests further that the Public Accommodations Law abrogated the common law right to exclude; consequently, the right to exclude must be balanced against the right of access to the extent that exclusions cannot be arbitrary or unreasonable. Appellant’s contentions are without merit. Appellant’s view of a common law history of a right of access is without precedent.

The common law right to exclude can be traced from English common law. In the case of Wood v. Leadbitter, 13 M & W 838, 153 Eng.Rep. 351 (Ex.1845), the court recognized that one who purchases a ticket for admission to a racetrack may nevertheless be denied access to the property since only a license is obtained and, when the license is not coupled with an interest in the property, it may be revoked. In Marrone v. Washington Jockey Club, 227 U.S. 633 , 33 S.Ct. 401, 402 , 57 L.Ed. 679 (1913), the United States Supreme Court followed the commonly accepted rule of Leadbitter. Despite the apparent rejection of Leadbitter in ¹⁰² England in Hurst v. Picture Theatres Ltd., [1915] 1 K.B. 1 (1914), the courts in the United States have generally adhered to Leadbitter.

Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 , 148 A.2d 1, 3 (1959). In fact, in deciding Greenfeld , this Court distinguished the Hurst case and followed the rule of Leadbitter. Greenfeld, 190 Md. at 101 , 57 A.2d at 336 . Appellant’s argument that Greenfeld somehow erroneously failed to recognize a then existing right of access is without merit.

Greenfeld is consistent with the majority of case law which has upheld the proprietor’s right to exclude. See Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 , 148 A.2d 1 (1959); Madden v. Queens County Jockey Club, 296 N.Y. 249 , 72 N.E.2d 697 (1947); People v. Licata, 28 N.Y.2d 113 , 320 N.Y.S.2d 53 , 268 N.E.2d 787 (1971); Griffin v. Southland Racing Corp., 236 Ark. 872 , 370 S.W.2d 429 (1963); James v. Churchill Downs, Inc., 620 S.W.2d 323 (Ky.Ct.App.1981); Nation v. Apache Greyhound Park, Inc., 119 Ariz. 76 , 579 P.2d 580 (Ct.App.1978). Appellant relies upon Uston v. Resorts International Hotel, Inc., 89 N.J. 163 , 445 A.2d 370 (1982), in which the casino was held not to have the authority to exclude a casino patron because of his strategy for playing blackjack, known as card counting. Id. 445 A.2d at 373 .

Implicit in appellant’s reliance on Uston , must be an argument that Uston overruled Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 , 148 A.2d 1 (1959), which held that the common law of exclusion, as applied to racetracks, applied in New Jersey. Id. 148 A.2d at 6 . In Uston , the Supreme Court of New Jersey held that “the Casino Control Commission, not the licensee, had the authority to determine whether ‘card counters’ could be excluded from the casino’s gaming tables. 89 N.J. at 167 , 445 A.2d [at 373].” Marzocca v. Ferone, 93 N.J. 509 , 461 A.2d 1133, 1136 (1983) (explaining Uston). The court relied in Uston upon the provisions of the state’s Casino Control Act and its specific preemption clause. 445 A.2d at 372-73 .

An open question remains on the applicability of the Uston decision beyond the casino setting. ¹⁰³ In Uston , the court did address the common law right to exclude in dicta. 445 A.2d at 373-75 . The court noted “that the common law right of an amusement owner to exclude unwanted patrons was not absolute in light of the competing interest of the patron in reasonable access to the premises once the property owner has opened them for public use. [Uston, 89 N.J.] at 170-174, 445 A.2d [at 373-75].” Marzocca, 461 A.2d at 1136-37 . But, in Uston , the court declined to decide the effect of their decision on Garifine. Uston, 445 A.2d at 375 n. 3.

When it was later suggested that Uston overruled Garifine sub silentio, the Supreme Court of New Jersey distinguished the cases, rather than address the assertion that Garifine was overruled, even though the context of the case involved an exclusion from a racetrack. 2 Marzocca v. Ferrone, 186 N.J.Super. 483 , 490 n. 3, 453 A.2d 228 , 231-32 n. 3 (1982), aff'd in part and rev’d in part, 93 N.J. 509 , 461 A.2d 1133, 1134 (1983) (affirmed on the jurisdictional issue and reversed on the merits). In Marzocca the state supreme court expressly disagreed with the lower appellate court’s expansive interpretation of Uston. Marzocca, 461 A.2d at 1137 . Instead, the supreme court limited the common law rule of Garifine in another way: “In Garifine, supra, we held that a private racetrack could legally exclude a patron if the exclusion was not based on race, creed, color, national origin or ancestry.

We now limit the common law doctrine by proscribing exclusions that violate public policy.” 3 Marzocca, 461 A.2d at 1137 . Even considering this limit on the common law right, arguendo, in the instant appeal, appellant could not justify his claim in view of the public policy interests in protecting the integrity of thoroughbred racing by excluding those with records of prior criminal activity. More importantly, we decline to give Uston v. Resorts ¹⁰⁴ International Hotel, supra, the expansive interpretation urged by appellant when the Supreme Court of New Jersey has hesitated to do so. Appellant’s next contention that the Public Accommodations Law in some way abrogates the common law right to exclude to any extent is without support.

The Maryland Public Accommodations Law, Maryland Code (1957, 1979 Repl.Vol., 1983 Cum.Supp.), Article 49B, § 5, as well as its federal counterpart, 42 U.S.C. § 2000a (1982), are concerned with discrimination in public accommodations. Appellee concedes that a racetrack is a place of public accommodation. However, these statutes by their express terms prohibit discrimination only on the basis of race, creed, sex, age, color, national origin, marital status, or physical or mental handicap. Id.

So long as a denial of service is not based upon discrimination on the foregoing grounds, the Maryland statute specifically states that the statute is not to be construed or interpreted to prohibit the proprietor from denying service “for failure to conform to the usual and regular requirements, standards and regulations for the establishment____”. Id. This proviso indicates that the legislature did not intend any other change in the common law except for ending exclusions and denials of service based on the types of discrimination expressly indicated by the statute. Indeed, in the cases that addressed the issue, the courts have uniformly held that such civil rights statutes have not abrogated the common law and that a proprietor may exclude patrons for any reason except race, color, creed, and