dissenting.
I disagree with the Court's foundational premise that gambling casinos are entitled to the same common law right of arbitrary exclusion as possessed by proprietors of conventional businesses at common law. The privilege of operating a casino exists in Indiana only by recent special enactments of the Indiana General Assembly, and such operation is dependent upon specific authorization and comprehensive regulation of the Indiana Gaming Commission. It is only through the grace of such legislative and administrative permission that casinos exist in Indiana and are licensed and permitted to seek a profit by inviting the general public to participate in games that offer the prospect of reward for success. Permitting a casino to restrict its patrons only to those customers who lack the skill and ability to play such games well intrudes upon principles of fair and equal competition and provides unfair financial advantages and rewards to casino operators. I am not persuaded that such schemes are supported or protected by any common law right or privilege.
I believe the analysis and conclusion of the Court of Appeals is correct in this case. Donovan v. Grand Victoria Casino & Resort, L.P., 915 N.E.2d 1001 (Ind.Ct.App.2009). It recognized the historic prohibition against gambling within Indiana's borders until selectively permitted in the past two decades and that it remains subject to "strict regulation." See Ind.Code § 4-33-4-2, The Indiana Gaming Commission, granted the exclusive authority to set rules of riverboat casino games, did not enact any prohibition against card counting nor did the defendant casino request Commission approval of such a rule. Card counting is not illegal under the exhaustive set of blackjack regulations promulgated by the Gaming Commission. See 68 Ind. Admin. Code 10-2-14. The regulations permit a riverboat licensee to impose additional blackjack rules but only if deemed necessary "to ensure the integrity of the game." 68 I.A.C. 10-2-2(b). I find that targeting unskilled blackjack players and excluding gifted ones is grossly incompatible with the integrity of the game.
The comprehensive, exclusive authority of the Indiana Gaming Commission is the basis of this Court's decision today in Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120 (Ind.2010). The Court in Kephart finds that Indiana's statutory scheme of riverboat gambling regulation and the plaintiff's common law claim in that case are "so incompatible that they cannot both occupy the same space." Id. at 1124. If this is so, the same principle should be applied here. I dissent in Kephart, however, believing that the common law cause of action by an injured customer against a business operator failing to exercise reasonable care has not been express*1120ly or unmistakably abrogated by Indiana's gambling statutes. But in the present case, I conclude that, because Indiana's gambling casino businesses exist only by statute and regulation, they are governed exclusively by the Commission's regulatory authority and not by common law.
I agree with the Court of Appeals conclusion that Grand Victoria should not be allowed to exclude the plaintiff from playing blackjack simply because the casino fears that he may be exceptionally good at it.