The rule is well established that the operator of a race track can "exclude a person from attending its races*** as long as the exclusion is not founded on race, creed, color or national origin

On the other hand, operators of most businesses, including places of amusement such as race tracks, have never been placed under any such common-law obligation, for no comparable considerations of public policy have ever so dictated.

In contrast, owners of private enterprises, such as places of amusement and resort, were under no such obligation, enjoying an absolute power to serve whom they pleased.

—the common law right of an operator of a race track to exclude a patron without cause provided the exclusion is not based on race, creed, color, or national origin was upheld, and held that Jacobson was entitled to judicial review of the NYRA's actions.

In fact, both the Fourth Circuit and the New York State Court of Appeals had explicitly rejected the concept of state involvement in the discrimination by licensed restaurants and racecourses, respectively.

—the New York Court of Appeals concluded that places of amusement and resort, unlike inns or common carriers engaged in a public calling, enjoy an absolute power to exclude anyone, subject to the legislative restriction of NY Civ.

Even in the case of licensees, such as race tracks and taverns, where the business is regulated by the state, the licensee does not become a state agency, subject to the provisions of the Fourteenth Amendment.

As is true for any owner of private property, the mall owner may exercise his common-law right to exclude and, thereby, deny access to all individuals whose purpose is other than to engage in shopping, browsing, or other commercial or business activities

The motion court properly excluded sporting events from its holding because Civil Rights Law § 40-b is specifically limited in application to "legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses

[BOOK] Gaming and Gambling Law: Cases and Materials

[BOOK] Study Guide to John EH Sherry," The Laws of Innkeepers

[BOOK] The laws of innkeepers: For hotels, motels, restaurants, and clubs