DocketNumber: No. C-76803
Citation Numbers: 385 N.E.2d 315, 57 Ohio App. 2d 64
Judges: <italic>Per Curiam.</italic>
Filed Date: 4/12/1978
Status: Precedential
Modified Date: 1/13/2023
This appeal essentially raises only one question for review,viz., whether the decision of the referee disallowing petitioner's application for non-seasonal unemployment compensation benefits (subsequently reversed by the Court of Common Pleas) is supported by reliable, probative or substantial evidence and is in accordance with law. The issue is before us as a result of petitioner's application for unemployment compensation filed September 4, 1975. The administrator determined that petitioner, an employee at the River Downs racetrack for eighteen weeks during 1975, was entitled to seasonal benefits of $100 per week worked, or total seasonal benefits of $1800.
Petitioner appealed the administrator's decision to the Board of Review on the ground that her benefits should have been computed in accordance with the non-seasonal benefits schedule, since the horse racing industry in Ohio arguably does not qualify as a seasonal industry under R. C.
R. C.
"`Seasonal employment' means employment of individuals *Page 66 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."
The record discloses that the referee's finding that racing is a seasonal industry was based on two "Journal Entries" issued by the Administrator of the Ohio Bureau of Employment Services. The first, dated May 21, 1975, and effective retroative to March 2, 1975, stated in pertinent part:
"The Administrator hereby determines that the industry of horse race track operators in Ohio is a seasonal industry in accordance with Section
The second journal entry, issued and effective on November 20, 1975, declared:
"The Administrator hereby determines that the industry of horse race track operators in Ohio is a seasonal industry in accordance with Section
At the hearing before the referee, petitioner, the appellee herein, contended that these journal entries were erroneous, discriminatory and unconstitutional because the actual horse racing season in Ohio is longer than that established by the Administrator.1 In support of that position, petitioner introduced the testimony of Jerry Neff, president of the local unit of the International Association of Theatrical and Stagehand Employees, the union representing mutuel workers and various other employees at River Downs. Neff testified that the 1975 racing season began February 28 at the Thistledowns thoroughbred plant in Cleveland and did not end until December 20, the conclusion of the standardbred meeting at Lebanon, Ohio. He further testified that the 1976 season commenced January 2 at Thistledowns.2 Despite this evidence the referee ruled that he had "* * * no jurisdiction to review the *Page 68 constitutionality of the law or of the Administrator's actions under the law * * *" and upheld respondents' position that racing must still be considered a seasonal industry. Respondents, appellants herein, now advance as their single assignment of error that the trial court, in reversing the referee's decision, exceeded the scope of its reviewing authority. We disagree.
Division (O) of R. C.
"If the court [of Common Pleas] finds that the decision [of the Board] was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; * * *."
Division (O) further states that the trial court, in hearing the appeal of the Board's decision, is limited to a review of the "* * * record certified by the board."
The issue the trial court confronted was whether petitioner was a seasonal employee within the meaning of R. C.
This court recognizes that the Administrator's journal entries relied upon by the Board could conceivably have been based on evidence that the racing industry in Ohio *Page 69 remains seasonal despite the fact that the industry in 1975 and 1976 operated virtually year round.3 However, such evidence, if indeed there was any, is dehors the record certified by the Board to the court below.
We are not persuaded that our holding today is in conflict with the Supreme Court's decision in Beulah Park Jockey Club v.Garnes (1973),
"* * * [T]he 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 employment as described in R. C.
Unlike the situation in Beulah Park Jockey Club, there was no evidence herein from which the board reasonably could have found that it is customary for the horse racing industry to operate less than forty weeks per year. On the contrary, all the evidence of record led to the inescapable conclusion that the sport is now a year-round enterprise unaffected by climatic conditions or other seasonal considerations.
The majority opinion in Beulah Park Jockey Club includes what appears to be a favorable — and gratuitous — reference to an earlier appellate decision, In re Application of Race Tracks
(1956),
The appellate court reversed a judgment of the Common Pleas Court affirming the administrator's ruling, holding at pages 505, 506:
"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, especially is this true if the operation is conducted for profit."
By way of dicta, the court further reflected:
"Manifestly, race meets conducted out of doors in the winter months would attract little or no attendance. * * *
"Had the 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."
We respectfully disagree with the Tenth District's view that horse racing in Ohio must be considered a seasonal sport regardless of the statutory guidelines in R. C.
For the foregoing reasons, we affirm the decision of the trial court.
Judgment affirmed.
PALMER, P. J., KEEFE and BETTMAN, JJ., concur.