Beulah Park Jockey Club, Inc. v. Garnes

Per Curiam. The fundamental question posed: by this appeal is whether the decision of the Board of Review, affirming the order of the administrator revoking the classification of seasonal employment of the industry of horse racetrack operators in Ohio, is supported by reliable, probative or substantial evidence and is in accordance with law. The Court of Appeals upheld a decision of the Court [145] of Common Pleas that it was not so supported upon a consideration of the whole record. We affirm. The record establishes that, from 1933 through 1970, all permits to conduct horse race meetings in Ohio have been limited to operation within a period: of 40 weeks or less. It was customary for the horse racing industry to operate in regularly recurring periods of 40 weeks or less duration, because of climatic conditions and because of the seasonal nature of such industry. The record shows further that one departure was made from this custom in 1971, when Toledo-Maumee Raceways, Inc., applied for and was granted a permit to operate from January 9, 1971, to March 8, 1971. The reason for this application was that in the specific geographic location around Toledo, Toledo-Maumee Raceways was operating in competition with racetracks in the Detroit, Michigan, area and its off-season racing dates applied for and granted were, in effect, dictated and forced by this Detroit competition for economic survival. The seasonal conditions did not enter into the determination. Conversely, the permit was granted, not because of climatic conditions or any change in the seasonal nature of the industry, but because Toledo-Maumee Raceways specifically requested such dates. There were 17 other racing associations that requested dates for the 1971 racing season and all of these requests were for dates within the customary regularly recurring 40-week period, actually for a total of 34 weeks and three days. It is only when Toledo’s dates are included that the 40-week period was exceeded in 1971. The administrator, in his reconsidered decision affirming the order revoking the classification of seasonal employment, stated, in part: “The order, mailed January 5, 1971, revoking the classification of seasonal employment was based on the fact that the Ohio Racing Commission authorized horse racing meets for 1971, to include dates from January 9, 1971 through November 20,1971. These dates include forty146 six calendar weeks. The additional weeks exceed the forty or less weeks authorized for seasonal employment classification.” (Emphasis added.) The hoard, as its reason for affirmance of the administrator’s decision, stated: “In the instant case, it is obvious that conditions have changed since 1956 and the industry of which all of the appellants are a part now operates during the coldest months of the year, with the operation extending for more than a period of forty weeks.” The board's reference to 1956 relates to a decision of the Court of Appeals for Franklin County in Race Tracks of Ohio v. Bureau of Unemployment Compensation (1956), 103 Ohio App. 503, wherein that court observed: u* ■* * jja(j £]le Legislature included the winter months during the time when race meets might be conducted it would not have affected at all the practical operation of racing in Ohio, and horse racing would remain a seasonal sport.” The court concluded: “It is our opinion that, by reason of and without respect to the statute and by common knowledge of which courts could take judicial notice, the operation of the sport of horse racing in Ohio is seasonal * * *.” As pointed out in the well-reasoned opinion of the trial judge, the board had absolutely no evidence before it of any change of climatic conditions or its effect on the horse racing industry as to any change in the seasonal nature of horse racing. The single change in 1971 from prior years was the instance of one racetrack in Ohio which was permitted to operate during the winter months solely because of extreme economic competition. The record is devoid of any evidence that the reason for this winter operation was a change in climatic conditions or a change in the seasonal nature of horse racing. Absent such evidence, it is customary for horse racetracks to operate during regularly recurring periods of 40 weeks or less and the horse racetrack industry is entitled to a classification of seasonal [147] employment as described in R. C. 4141.33(A)1. The decision of the Board of Review is not snported by any reliable, probative or substantial evidence and is not in accordance with law. The judgment of the Court of Appeals is, therefore* affirmed. Judgment affirmed. O ’Neill, C. J., Herbert, Corrigan, Sterk and P. BrowN, JJ., concur. Celebrezze and W. BrowN, JJ., dissent. Footnotes [1] R. C. 4141.33(A) reads as follows: “ ‘Seasonal employment’ means employment of individuals hired primarily to perform services in an industry which because of climatic conditions or because of the seasonal nature of such industry it is customary to operate only during regularly recurring periods of forty weeks or less in any consecutive fifty-two weeks. ‘Seasonal employer’ means an employer determined by the administrator of the bureau of employment services to have seasonal employment in a seasonal industry. Any employer who claims to have seasonal employment in a seasonal industry may file with the administrator a written application for classification of such employment as seasonal. Whenever in any industry it is customary to operate because of climatic conditions or because of the seasonal nature of such industry only during regularly recurring periods of forty weeks or less duration, benefits shall be payable only during the longest seasonal periods which the best practice of such industry will reasonably permit. The administrator shall determine, after investigation, hearing, and due notice, whether the industry is seasonal and, if seasonal, establish seasonal periods for such seasonal employer. Until such determination by the administrator, no industry or employment shall be deemed seasonal. When the administrator has determined such seasonal periods, he shall also fix the proportionate number of weeks of employment and earnings required to qualify for seasonal benefit rights in place of the weeks of employment and earnings requirement stipulation in division (R) of Section 4141.01 and Section 4141.30 of the Revised Code, and the proportionate number of weeks for which seasonal benefits may be paid'. The administrator may adopt rules and regulations for implementation of this section.”