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Eighth District: Casino Control Commission Wrong To Revoke Dealer’s License for Taking Can of Red Bull Without Paying

Image of a can of Red Bull energy drink

An Ohio appeals court rules a casino card dealer cannot lose his state gaming license because he did not pay the casino for a can of Red Bull. (Photo by Icatus/CC BY NC-ND 2.0/cropped from original)

Image of a can of Red Bull energy drink

An Ohio appeals court rules a casino card dealer cannot lose his state gaming license because he did not pay the casino for a can of Red Bull. (Photo by Icatus/CC BY NC-ND 2.0/cropped from original)

Revoking a casino dealer’s gaming license for failure to pay $1.84 for a Red Bull will not fly, the Eighth District Court of Appeals ruled.

The court recently admonished a Cuyahoga County Common Pleas Court for upholding the revocation of a casino employee gaming license by the Oho Casino Control Commission, which it said used the wrong standards for making its decision and failed to spell out its reasoning as required by law.

According to the court, Anthony Zingale received his casino employee gaming license in April 2012, and was hired at what was then the newly opening Horseshoe Casino in downtown Cleveland. In October 2012, Zingale was a dealer at the high-limit card table. During a break, he took a can of Red Bull energy drink from the employee dining room, scanned his employee identification to pay $1.84 for the drink, then voided the sale and consumed the drink.

The next day, Zingale was called to his supervisor’s office, where he was confronted about the incident. He said he was unaware that he failed to pay for the Red Bull and that he must have voided the sale on the computer screen by accident. His supervisors downplayed the incident, and he offered to pay for the Red Bull, but his supervisors declined the offer. Six days later he was terminated by the casino for taking the drink, and in November, the casino notified the Casino Control Commission that Zingale had been terminated.

The Commission then sent notice of a hearing to Zingale informing him that he was “no longer suitable as a casino gaming employee and that it intended to take administrative action against him for not only taking the Red Bull without paying, but also failing to notify the Commission of his termination within 10 days of the firing.

At his hearing Zingale, produced an employee review that recognized his expertise in dealing cards and that he regularly delighted the casino patrons. He also said he was in the midst of being hired by another casino, but that stopped when the casino told him his license was in the process of being revoked. A Commission hearing examiner ruled it was appropriate for it to take “administrative action” against him, but did not specify the severity of the action. The examiner also determined that Zingale “failed to establish by clear and convincing evidence” that his license should not be subjected to a sanction by the Commission.

In making that decision, the examiner relied on R.C. 3772.10(B) and cited “failure of good behavior” as the reason why it was appropriate for the Commission to take action. The Commission, in reviewing the examiner’s report, wrote that the law does not allow a sanction for failure of good behavior, and it modified the examiner’s report labeling the incident as a violation of his employee handbook and therefore making it “unsuitable conduct,” which is grounds for an administrative action.

The Commission determined the administrative action should be revocation of Zingale’s license. Zingale appealed the ruling to the Cuyahoga County Common Pleas Court, which without issuing an opinion, found the Commission’s order was adequately supported and upheld it.

Writing for the appeals court Judge Larry A. Jones noted that 3772.10(B) applies to applicants for employee gaming licenses and not to those who already hold the license.
“Therefore R.C. 3772.10(B) did not apply to him and he was not obligated to show by clear and convincing evidence that he was suitable for a license. Instead the burden was on the Commission to show that Zingale should no longer retain his casino employee gaming license,” Judge Jones wrote.

The Commission argued that even if it failed to articulate the correct burden-of-proof standard, the record indicates the Commission did produce enough evidence to revoke the license. It said shifting the proof was harmless error that did not impact the outcome.

“We find this argument disingenuous,” Jones wrote. “Not only was Zingale terminated from his position at Horseshoe Casino, a job which by all accounts he excelled at, he lost any chance of finding employment as a casino gaming employee in Ohio because the Commission revoked his license.”

Zingale also raised the issue of revoking his license without including the reason in its decision.  The appeals court noted R.C 119.09 indicates that if a state agency modifies or disapproves a hearing examiner’s recommendation, it must include the reasons. 

Judge Jones cited cases where agencies modified the record, noting that even including the minutes of a discussion by the commission before it acted could suffice to explain its reasoning. In this case, the hearing examiner did not recommend what type of action to take, which could range from revocation to limits on the license or a fine.  The commission on its own selected revocation, and did not explain its reasoning in either the order or in the meeting minutes when it voted, the court stated.

“Neither contained a single reason why the Commission chose to revoke Zingale’s casing gaming employee license,” Judge Jones wrote.

The case was sent back to the Commission for a new administrative hearing.

Judges Mary J. Boyle and Frank D. Celebrezze concurred in the decision.

Zingale v. Ohio Casino Control Comm., 2014-Ohio-4937
Civil Appeal From:  Cuyahoga County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 6, 2014

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