The Eighth District Court of Appeals found recently that an employee of Cleveland's Horseshoe Casino who took a can of Red Bull without paying for it while on a break from work should not have had his gaming license revoked as a result. The case involves Anthony Zingale, who was a dealer at a high-limit table at the casino. While on a break he visited the employee dining room where he used his employee card to purchase a can of Red Bull and then voided the sale. When confronted by his supervisors Zingale stated that he must have inadvertently voided the sale and offered to pay for the beverage. The supervisors refused to accept payment and assured Zingale that this would likely not be a problem. Zingale was subsequently fired from the Horseshoe Casino.
The Casino Control Commission then sent Zingale a notice that they intended to revoke his gaming license because he had taken the Red Bull and had not notified the Commission that he had been fired. The notice gave him an opportunity for a hearing. After the hearing, the examiner recommended that the Commission take administrative action against Zingale, and the Commission decided to revoke his license. Zingale appealed to the Court of Common Pleas, which affirmed the decision without written opinion. Zingale then appealed to the 8th District.
The 8th District reversed the decision of the lower court, finding that the examiner had incorrectly shifted the burden of proof to Zingale and improperly applied a statute to him that was meant for new applicants for gaming licenses. The examiner had found that Zingale's actions were "a failure of good behavior," and that he did not show by clear and convincing evidence that he should be permitted to keep his license. In order to be able to revoke his license, the Commission modified the finding (which they were allowed to do under the law) to indicate that Zingale had engaged in unsuitable conduct, stating that “Zingale failed to establish by clear and convincing evidence that he remains suitable for licensure as a casino gaming employee, as required by R.C. 3772.10.”
The 8th District found that shifting the burden of proof to Zingale done by both the examiner in the original case and the Commission in the modified opinion was incorrect and that it was up to the Commission to prove that he was no longer suitable to hold his existing gaming license by a preponderance of the evidence. Zingale only would have been responsible for proving that he was suitable for the license if he was a new applicant, not simply for keeping his license. The Court found that this was not harmless error, as the Commission contended, because Zingale lost both his job and his ability to find casino gaming employment anywhere else in Ohio.
In the original opinion, the examiner had recommended that the Commission take "administrative action" against Zingale for his actions. The Commission modified this and ordered that Zingale's license be revoked. While O.R.C. 119.09 allows the Commission to modify the decision, the language of the statute also requires that they provide reasons for the modification. The Court found that no reasons for the modification were given and so it was improper.
The Court reversed the decision of the trial court and ordered the case to be set for a new administrative hearing.