Zingale v. Ohio Casino Control Comm.
2014 Ohio 4937
Ohio Ct. App.2014Background
- Anthony Zingale, a licensed casino dealer at Horseshoe Casino, took a Red Bull from the employee dining room on October 10, 2012, scanned it, then voided the sale and consumed the drink; he later admitted the act in a "Performance Documentation" entry and was terminated.
- Horseshoe notified the Ohio Casino Control Commission (the Commission); the Commission issued a Notice of Opportunity for a Hearing alleging handbook violation and failure to notify the Commission of his termination.
- Administrative hearing occurred; evidence included the performance documentation, the license application, character testimony, and security video. The hearing examiner issued a report recommending "administrative action" without specifying a particular sanction.
- The Commission adopted and modified parts of the examiner’s report and revoked Zingale’s casino gaming employee license, concluding he failed to prove by clear and convincing evidence he remained suitable and that he had an obligation to notify the Commission of his termination.
- Zingale appealed to the Cuyahoga County Common Pleas Court, which affirmed the agency decision; the appellate court reversed and remanded for a new hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a staff memo prepared by in-house counsel had to be included in the certified administrative record | Zingale: the memo is part of the record and not privileged; omission prejudiced him | Commission: memo is privileged attorney-client communication and may be excluded | Held: Memo protected by attorney-client privilege; exclusion from record was proper |
| Proper burden/standard of proof for disciplining an existing licensee (whether R.C. 3772.10(B) clear-and-convincing standard applied) | Zingale: Commission improperly shifted burden to him and required clear-and-convincing proof of suitability (wrong standard for a licensee) | Commission: agency had burden to show licensee unsuitable by preponderance; argued any error harmless | Held: Examiner and Commission erred by shifting burden and invoking R.C. 3772.10(B) (which applies to applicants); assignment sustained and reversal required |
| Whether the agency failed to consider statutory and regulatory factors (R.C. 3772.10(A), Ohio Adm.Code 3772-8-05) | Zingale: Commission did not properly consider mandatory factors and would not have revoked license if it had | Commission: factors were considered; many are inapplicable or redundant and agency need not list each one | Held: No reversible error; record shows the agency considered statutory factors; assignment overruled |
| Whether the agency complied with R.C. 119.09 when it (a) left the examiner without recommending a specific sanction and (b) modified the examiner’s recommendation without stating reasons | Zingale: examiner should have recommended a specific sanction; Commission violated R.C. 119.09 by modifying without stated reasons | Commission: examiner may leave sanction to agency; Order and meeting minutes sufficiently explained modification | Held: (a) Examiner not required to recommend a specific sanction — no error. (b) Commission failed to include reasons in the record for modifying the examiner’s recommendation to revoke the license — violation of R.C. 119.09; assignment sustained. |
Key Cases Cited
- Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (administrative-review standard: trial court reviews record for reliable, probative, substantial evidence)
- Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (appellate review limited to abuse-of-discretion of trial court in administrative appeals)
- State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261 (attorney-client privilege protects communications between government clients and in-house counsel)
- Bernard v. Unemp. Comp. Rev. Comm., 136 Ohio St.3d 264 (courts defer to reasonable agency interpretations of their rules)