STATE OF MINNESOTA
IN COURT OF
In the Matter of the
Appeal of the
Edward Molnar from Canterbury Park.
Filed September 5,
Minnesota Racing Commission
Howard S. Carp, David G. Johnson, Borkon, Ramstead, Mariani, Fishman
& Carp, Ltd., Suite
100, 5401 Gamble
Drive, Minneapolis, MN 55416
(for relator Edward Molnar)
Mike Hatch, Attorney General, Gregory P. Huwe, Assistant Attorney
General, 1800 Bremer
Tower, 445 Minnesota Street, St. Paul, MN 55101(for respondent
Minnesota Racing Commission)
Mark A. Jacobson, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402(for respondent Canterbury Park)
Considered and decided by Lansing,
Presiding Judge; Randall, Judge; and Willis, Judge.
Y L L A B U S
conduct of a privately owned, state-regulated business may constitute state
action for Fourteenth Amendment purposes if the nexus between the challenged conduct
and the state is so close that it can fairly be said that the state is
responsible for the conduct.
Minn. Stat. § 240.27, subds. 2, 5 (2004), a Minnesota Racing Commission licensee
is not required to give a patron notice and a hearing before excluding the
patron from its premises.
vagueness doctrine applies only to legislative enactments and cannot be
successfully invoked when a reasonable person would know that his or her actions
risk violation of a private entity’s rules of conduct.
Stat. § 240.30, subd. 7(c) (2004), does not restrict a Minnesota Racing
Commission licensee’s authority to exclude patrons from its premises.
P I N I O N
Edward Molnar appeals from an order
of the Minnesota Racing Commission, upholding Canterbury Park’s
decision to exclude him permanently from its card club. Molnar argues that Canterbury
Park violated his constitutional and
statutory right to due process in its temporary-exclusion decision and that the
racing commission abused its discretion on evidentiary issues and by upholding Canterbury Park’s permanent-exclusion
decision. Molnar also maintains that the
commission exceeded its authority by affirming his permanent exclusion rather
than imposing a fine. Because we
conclude that Canterbury
Park did not violate Molnar’s due process rights and that the
Minnesota Racing Commission did not err or abuse its discretion, we affirm.
A C T S
Canterbury Park is a privately owned corporation
licensed by the Minnesota Racing Commission to conduct live racing. The commission has also authorized Canterbury Park to operate a card club on its
premises. Edward Molnar has been a
regular patron of the card club since it opened in 2000. He also races and houses quarter horses at Canterbury Park.
operation of the card club is regulated by the racing commission. To obtain authorization to operate the card
club, Canterbury Park formulated a plan of operation that
provides the “necessary details for conducting card playing activities.” Minn. Stat. § 240.30, subd. 6 (2004). Section VIII of this plan states Canterbury Park’s
intention to offer patrons a “clean, friendly and pleasant place to play cards”
and reserves Canterbury
Park’s right to exclude
from the card club any person who engages in “[t]alk or action demeaning of
other players or employees.”
Canterbury Park also requires all patrons to follow
the “California Games House Rules,” which prohibit, among other things, “[o]ffensive
or abusive language.” The commission’s
rules additionally require patrons to comply with a security officer’s orders
and not to interfere in the performance of their official duties. Minn. R. 7897.0100, subp. 7 (2005). And Canterbury Park
is authorized by statute to exclude from the card club any person who violates “any
state law or commission rule or order or who is a threat to racing integrity or
the public safety.” Id.
§ 240.27, subd. 5 (2004).
August 2003, Canterbury
Park excluded Molnar from
the card club for nine months, based on allegations that he had inappropriately
touched female employees. An employee
reported that Molnar came up behind her, put his arm around her neck and whispered
into and licked her ear. A card dealer
also reported that Molnar had come up behind her and grabbed her around the
waist. In response to these reports, a
pit manager told Molnar that touching female employees was inappropriate and
that Canterbury Park had a responsibility to take
harassment accusations seriously.
short time later, another card dealer reported that Molnar came up behind her
and poked her in the side. She also
reported a previous contact in which Molnar had come up behind her and rubbed
her shoulders. Following this report,
the pit manager told Molnar that he had received another complaint of inappropriate
touching and asked him to leave.
response to these reports, Canterbury
Park appointed an
exclusionary committee to review the allegations against Molnar and decide on
an appropriate course of action. The
committee investigated the reports and decided to exclude Molnar from the card
club for nine months. The exclusion
notice sent to Molnar indicated that Molnar could seek review of the
committee’s decision by writing to the security department. It also indicated that further inappropriate
behavior would not be tolerated and would result in permanent exclusion. Molnar did not appeal to the security
department or to the Minnesota Racing Commission, but instead inquired by
phone, e-mail, and regular mail about the reason for his exclusion. In response to Molnar’s inquiry, Canterbury
Park sent Molnar a letter on December 30, 2003, stating that their “investigation
gave [them] reasonable cause to believe that [Molnar] violated the rights of
one of [Canterbury Park’s] employees by touching her inappropriately.” But Canterbury Park
did not respond to Molnar’s repeated requests for more specific information
about the incident that led to his exclusion.
Molnar returned to the club in May
2004. In December, several employees
complained that Molnar was making lewd comments, using profanity, making
obscene gestures for hit signals, and covering his bets while giving the stay
signal. The floor person and the
assistant pit manager asked Molnar to stop this behavior. But when the assistant pit manager made this
request, Molnar became orally combative.
He was similarly combative when the assistant food-and-beverage manager
took away his drink and told him that he would not be served more alcohol. And, when asked to leave the card club,
Molnar refused to comply with a security officer’s request to confirm his
Canterbury Park convened its exclusionary committee
again, and the committee determined to exclude Molnar permanently from the card
club. This time, Molnar appealed the
committee’s decision to the racing commission.
The commission designated an Exclusion Appeal Panel to hear the appeal.
In June 2005 the appeal panel, which
consisted of three commission members, held an evidentiary hearing. The panel continued the hearing after Molnar
requested an opportunity to view Canterbury
videotapes and more time to prepare his case.
When the hearing reconvened, both parties called witnesses, submitted
documentary evidence, and presented oral argument.
appeal panel issued findings, conclusions, and recommendations. The panel concluded that Molnar engaged in
“unacceptable and inappropriate behavior on several occasions during 2003 and
2004,” and that some of his behavior constituted sexual harassment and violated
the law and Canterbury
Park policies. The panel also concluded that Molnar failed
to cooperate with security personnel.
Based on these determinations, the panel recommended upholding Molnar’s
permanent exclusion from the card club.
The panel also recommended that Canterbury Park be required to (1) post more
prominently the card club’s rules of conduct; (2) rename the “California Games
House Rules,” which govern appropriate behavior in the card club, to
“Canterbury Card Club House Rules”; (3) add to the house rules a provision
expressly prohibiting sexual harassment of patrons and employees; (4) make the
plan of operation more accessible to the public; and (5) include the specific
reasons for an exclusion in the notice of exclusion. The appeal panel found that, while Canterbury Park “did a less than perfect job” of alerting
Molnar to the basis for his initial, temporary exclusion from the club,
Molnar’s exclusion was “procedurally adequate.”
filed written objections to the appeal panel’s findings, conclusions, and
recommendations. The racing commission affirmed
the panel’s decision and issued an order upholding Molnar’s permanent exclusion
from the card club. This appeal follows.
S S U E S
I. Did Canterbury Park
violate Molnar’s constitutional and statutory right to due process by temporarily
excluding him from the card club without adequate notice and an opportunity for
II. Are Canterbury Park’s
rules of conduct and plan-of-operation provisions void for vagueness?
III. Did the racing commission exceed its
authority by affirming Molnar’s exclusion from the card club instead of imposing
IV. Does the record support Molnar’s claim
that Canterbury Park destroyed or refused to provide him
exculpatory videotapes depicting the behavior that formed the basis for his
V. Is the racing commission’s order affirming
Molnar’s exclusion supported by substantial evidence in the record as a whole?
N A L Y S I S
We review an agency decision to
determine whether it violates constitutional provisions, exceeds the agency’s
jurisdiction or statutory authority, is made through unlawful procedure, is
unsupported by substantial evidence in view of the entire record, or is
arbitrary and capricious. Minn. Stat. § 14.69 (2004). Judicial review presumes the correctness of
an agency decision. Gramke v. Cass County, 453 N.W.2d 22, 25 (Minn.
1990). The party seeking review thus
bears the burden of establishing that the decision violates one or more of the
provisions of section 14.69. Markwardt v. State, Water Res. Bd., 254
N.W.2d 371, 374 (Minn. 1977).
courts retain the authority to review de novo an agency’s determination of the
meaning of words in a statute. In re Denial of Eller Media Co.’s Applications
for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn.
2003). We will not defer to an agency’s
interpretation of its own rule if its interpretation is contrary to its plain
Advocating Responsible Dev. v. Kandiyohi
713 N.W.2d 817, 827 (Minn. 2006). We accord deference, however, to an agency’s
expertise that is exercised within the scope of its authority, its findings on
conflicting testimony, the weight given to expert testimony, and the inferences
reasonably drawn from the testimony. In re Excess Surplus Status of Blue Cross
& Blue Shield of Minn., 624 N.W.2d
264, 278 (Minn. 2001).
argues that Canterbury
Park violated his
constitutional and statutory right to due process by temporarily excluding him
from the card club in August 2003 without adequate notice and an opportunity
for a hearing. We disagree.
Fourteenth Amendment protects liberty and property rights against state action,
but offers no protection against private conduct. Blum v.
Yaretsky, 457 U.S. 991, 1002, 102 S. Ct. 2777, 2785 (1982); Shelley v. Kraemer, 334 U.S. 1, 13, 68
S. Ct. 836, 842 (1948) (stating that Fourteenth Amendment “erects no shield
against merely private conduct, however discriminatory or wrongful”); Coller v. Guardian Angels Roman Catholic
Church, 294 N.W.2d 712, 716-17 (Minn. 1980) (holding that private-school
teacher who directed state-sponsored program had no due process claim in
absence of state action). Because Canterbury Park is a privately owned corporation,
it is not ordinarily subject to the restrictions of the Fourteenth Amendment.
argues that Canterbury
Park is subject to the
Fourteenth Amendment because it is extensively regulated by, or in a symbiotic
relationship with, the state. On this
record, we conclude otherwise.
conduct may be subject to governmental constraints when it is regulated by the
state and “there is a sufficiently close nexus between the [s]tate and the
challenged action of the regulated entity so that the action of the latter may
be fairly treated as that of the [s]tate itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct.
449, 453 (1974). No precise formula exists
for determining when private conduct may be considered state action. Gilmore
v. City of Montgomery, Ala.,
417 U.S. 556, 574, 94 S. Ct. 2416, 2427 (1974). But a well-settled principle indicates that,
for Fourteenth Amendment purposes, the extensive regulation of a private
business is alone insufficient to transform private conduct into state
action. See, e.g., Jackson,419 U.S. at 350, 95 S. Ct. at 453
(holding that customer of extensively regulated private utility did not have
due process right to notice and hearing before termination of her service). The state is responsible for private conduct
only “when it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be deemed to
be that of the [s]tate.” Blum, 457 U.S.
at 1004, 102 S. Ct. at 2786 (stating that mere
authorization or approval of private initiative is insufficient to constitute
state action). This requirement assures
that “constitutional standards are invoked only when it can be said that the [s]tate
is responsible for the specific
conduct of which the [litigant] complains.”
Id. (emphasis in original).
evaluating whether extensive state regulation of a private entity establishes a
nexus that would fuse the entity’s conduct and state action, we recognize a distinction
between a private entity’s request for approval of a particular practice and a
regulatory body’s requirement of the practice.
Jackson, 419 U.S. at 355, 95 S. Ct.
at 456. Approval of a private entity’s
practice when the regulatory body “has not put its own weight on the side of
the proposed practice by ordering it, does not transmute a practice initiated
by the [private entity] and approved by the [regulatory body] into ‘state
action.’” Id. at 357, 95 S. Ct. at 456-57. Thus,
when the initiative for a practice comes from a private entity and not the
state, the private entity’s choice to implement a practice allowed by state law
does not amount to state action for purposes of the Fourteenth Amendment. Id.
racing commission approved Canterbury Park’s plan of operation, and Canterbury Park
is statutorily authorized to exclude patrons who threaten racing integrity or
the public safety. See Minn. Stat. § 240.27,
subd. 5 (2004) (providing grounds for exclusion of persons from licensed race
tracks). But the racing commission did
not endorse the proposed practice by ordering it. The racing commission did not expressly
scrutinize or approve the exclusion provision in the plan of operation, but
merely authorized Canterbury
Park to follow the
permissible exclusionary practice. See Minn. Stat. § 240.30, subd. 6
(2004) (requiring licensees to submit for approval plan of operation that
includes “all necessary details for conducting card playing activities,” but
not requiring exclusion policy). Ordinary
authorization or approval of a private initiative is insufficient to convert
private conduct into state action. Blum, 457 U.S. at 1004-05, 102 S. Ct. at
2786 (“Mere approval of or acquiescence in the initiatives of a private party
is not sufficient to justify holding the [s]tate responsible for those
initiatives under the terms of the Fourteenth Amendment.”); see also Rendell-Baker v. Kohn, 457 U.S.
830, 840-43, 102 S. Ct. 2764, 2771-72 (1982) (holding that regulation giving state agency power to
approve private school’s hiring decisions is insufficient to transform school’s
decisions into state action).
addition to not endorsing the practice, the state did not initiate Molnar’s
exclusion. The Minnesota Racing
Commission did not encourage Canterbury
Park to exclude Molnar or
otherwise participate in the exclusion decision. Canterbury
Park’s decision to exclude Molnar was
made by Canterbury Park employees based on business standards
established by Canterbury
Park, not the state. See
Blum, 457 U.S. at 1008,
102 S. Ct. at 2788 (holding that because
decision of private nursing home “turn[ed] on medical judgments made by private
parties according to professional standards that are not established by the [s]tate,”
decision did not amount to state action despite extensive regulation by state). The primary motivation to exclude Molnar was
not a state interest, but was instead Canterbury Park’s
economic and private interest in maintaining a safe business environment and in
preventing sexual harassment.
these reasons, we conclude that Canterbury Park’s exercise of a statutorily
authorized choice to exclude Molnar does not equate to state action for
Fourteenth Amendment purposes. The
state’s regulatory scheme in this case, however detailed, did not make the state
a partner in Canterbury
decisions. Neither general involvement
by the state nor extensive regulation is sufficient to support a finding of
state action. Scott v. Eversole Mortuary, 522 F.2d 1110, 1115 (9th Cir. 1975)
(holding that extensive regulation of private entity does not convert private
entity’s conduct into state action).
Instead, the evidence must show that the state affirmatively supported
the private conduct challenged. Musso v. Suriano, 586 F.2d 59, 62 (7th
Cir. 1978). The evidence in this case
does not show that the state affirmatively supported Canterbury Park’s
decision to exclude Molnar.
also suggests that his exclusion from Canterbury
Park amounts to state action because Canterbury Park and the state have a symbiotic
relationship. But Molnar has not
established that Canterbury
Park and the state have a
symbiotic relationship. A symbiotic
relationship between a private entity and the state exists when the state has
“so far insinuated itself into a position of interdependence with [the private entity]
that it must be recognized as a joint participant in the challenged activity.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S. Ct.
856, 862 (1961). In analyzing whether a
symbiotic relationship existed between a state agency and a private entity, we
consider whether the private entity benefits directly from state action,
whether the state agency, in turn, benefits from the private entity’s conduct,
and whether the state agency was complicit in the objectionable policy based on
its failure to intervene. Id. at 723-25,
81, S. Ct. at 861. Thus, when the state elects to “place its
power, property and prestige behind” a private entity’s action, the action “cannot
be considered to have been so ‘purely private’ as to fall without the scope of
the Fourteenth Amendment.” Id. at 725, 81 S. Ct. at 862.
has not established that the state so far insinuated itself into a position of
interdependence with Canterbury Park that it must be recognized as a joint
participant in Canterbury
decisions. Molnar does not allege that Canterbury Park operates under a lease with the
state, on public land, or in buildings owned and maintained by the state and
dedicated to a public purpose. Nor does
he allege that there is a mutually beneficial financial relationship between
the state and Canterbury Park comparable to that in Burton. Like other corporations, Canterbury Park
is subject to taxation by the state. See Minn. Stat. § 240.15 (2004)
(providing for imposition of tax). And
card-club revenue is subject to extensive regulations. See id.
240.135 (2004) (requiring licensees to set aside certain amounts for designated
purposes). But Molnar has not
established, and the record does not reflect, a mutually beneficial financial
relationship. See Brennan v. Minneapolis Soc’y for Blind, Inc., 282 N.W.2d 515,
528 (Minn. 1979) (determining that mutually
conferred benefits between state and private entity did not establish symbiotic
relationship). The record does not therefore
support Molnar’s claim that Canterbury
Park and the state had a
as a private corporation, was not constitutionally required to provide Molnar
with a hearing before excluding him from the card club, we find no merit in Molnar’s
argument that Canterbury
Park violated his
constitutional right to due process.
on Minnesota Statute section 240.27, subdivisions 2 and 5 (2004), Molnar also
argues that he was statutorily entitled to notice and a hearing before Canterbury
Park first excluded him from the card club in 2003. But Molnar’s claim is inconsistent with the
plain meaning of the statute.
2 of the statute governs exclusion orders made by the commission, not the
licensee. Minn. Stat. § 240.27, subd. 2
(providing that an “order to exclude a person from any or all licensed
racetracks in the state must be made by the
commission at a public hearing of which the person to be excluded must have
at least five days’ notice” (emphasis added)).
Thus, by its terms, the statute does not apply to Canterbury Park’s
decision to exclude Molnar in 2003. Although
subdivision 5 recognizes that a licensee may exclude a person from its premises,
it requires a hearing only on appeal to the racing commission. Id., subd. 5
(providing that person excluded by licensee from racetrack premises “must be
given a public hearing on the appeal upon request”). Subdivision 5 therefore did not require Canterbury Park to provide Molnar with a
hearing. And because Molnar did not
appeal his initial exclusion to the commission, the commission had no statutory
obligation to give Molnar a public hearing in connection with his initial
argues that, because his first exclusion was a factor in the racing
commission’s decision to exclude him from the card club permanently, Canterbury Park violated his due process rights by
failing to inform him that he had a right to a hearing on appeal. But Molnar has provided no authority to
support his claim that Canterbury
Park had a duty to advise
him of his right to appeal the temporary exclusion.
Molnar next argues that his exclusion from the card club
violated his due process rights because the rules of conduct he was alleged to
have violated were unconstitutionally vague.
Specifically, Molnar claims that Canterbury Park’s
rules prohibiting “offensive or abusive language” and “[t]alk or action
demeaning of other players or employees” were so ambiguous that they failed to
give patrons reasonable notice of what conduct they prohibited and caused them
to “guess at appropriate conduct.” For
two reasons, we disagree.
the vagueness doctrine applies only to legislative enactments. See Ronald
D. Rotunda & John Nowak, Treatise on Constitutional
Law—Substance & Procedure § 20.9 (2d ed. 1992) (explaining vagueness doctrine). The doctrine is embodied in the Due Process
Clause of the Fourteenth Amendment, which “requires the government to give notice to individuals of government actions
which would deprive those individuals of a constitutionally protected life,
liberty, or property interest.” Id. § 17.8
(emphasis added); see Stephenson v. Davenport Comm. Sch.
Dist., 110 F.3d 1303, 1308 (8th Cir. 1997).
Molnar does not challenge as vague the statute regulating the exclusion
of persons from Canterbury Park; instead, he limits his challenge to Canterbury
Park’s house rules and section VIII of the plan of operation, neither of which
is a legislative enactment. Unlike the
Park, as a private
business, is not constitutionally required to give notice to patrons of actions
that might deprive them of a constitutional right. Accordingly, the house rules and the plan of
operation are exempt from the vagueness doctrine.
even if the vagueness doctrine applied, vagueness challenges under the Due
Process Clause must be analyzed as applied to the facts of the case at issue
and “may be overcome in any specific case where reasonable persons would know that
their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361, 108 S. Ct.
1853, 1857 (1988). The record in this
case reflects that Molnar knew that his conduct was at risk. Molnar admitted that his behavior was
“improper,” and the record shows that he was repeatedly warned not to touch
female employees and not to make remarks that were sexual or lewd. Molnar also admitted that he had seen the
house rules but claims that he did not pay attention to them because they were
entitled “California Games House Rules.”
Although the commission found the title of the house rules to be
misleading and ordered Canterbury
Park to rename the rules,
the commission rejected Molnar’s claim that he did not have notice that his
conduct was improper. The commission’s
finding was based on credibility determinations and is therefore entitled to
deference. See Blue Cross & Blue Shield, 624 N.W.2d at 278 (stating that
credibility determinations, weighing of evidence, and drawing of legitimate
inferences from facts are functions within discretion of fact-finder and,
ordinarily, will not be overturned). Regardless
of whether Molnar knew that his conduct was at risk, his vagueness challenge
fails because the standard for overcoming a vagueness challenge is a
reasonable-person standard. Even without
the repeated warnings, a reasonable person in Molnar’s position would have
known that his conduct was at risk. We
therefore are not persuaded by Molnar’s vagueness challenge.
on the interplay between Minnesota Statutes sections 240.22 and 240.30, subdivision
7(c) (2004), Molnar next argues that the commission exceeded its authority by
excluding him from the card club instead of merely fining him. These sections do not, however, restrict a
licensee’s authority to exclude patrons from its premises.
240.22 authorizes the commission to establish a schedule of civil fines for
violations of horse-racing laws or the commission’s rules and to impose a fine
from this schedule on a licensee. Minn. Stat.
§ 240.22 (2004). Section 240.30, subdivision
7(c), provides that a “violation of a law or rule relating to card club
operation or a violation of an approved plan of operation is deemed to be a
violation of law or rule for purposes of section 240.22.” Read together, these sections provide that
violations of a plan of operation or of laws or rules governing card-club
operation may result in the imposition of a fine on the licensee.
argues that, by equating violations of an operational plan or card-club laws or
rules to violations “for purposes of section 240.22,” subdivision 7(c) grants Canterbury Park only the authority to fine patrons
for those violations. For four reasons,
we do not agree. First, the plan of
operation and card-club operation are the responsibility of the licensee;
patrons cannot, by violating either, subject themselves to a fine under
subdivision 7(c). Second, section 240.22
expressly authorizes the commission to fine a licensee, not a patron of a licensee. Third, even if subdivision 7(c) applied to
patrons of a licensee, the mere fact that it subjects certain violations to a
fine does not necessarily mean that it precludes exclusion as a remedy for the
same violations. Finally, Molnar’s
proposed construction of subdivision 7(c) is inconsistent with Minnesota Statute
section 240.27, subdivision 5, which unambiguously authorizes licensees to
exclude from its premises any “person who is in violation of any state law or
commission rule or order or who is a threat to racing integrity or the public
safety.” See Minn. Stat. § 645.16 (2004) (providing that statute should
be interpreted to give effect to all its provisions). The commission
did not therefore exceed its authority by upholding Canterbury Park’s
exclusion decision instead of merely fining Molnar.
also argues that the racing commission abused its discretion by considering
allegations of improper behavior despite Molnar’s claim that Canterbury Park
destroyed or refused to provide Molnar videotape evidence depicting the alleged
behavior. The record does not, however,
support Molnar’s claim.
exclusion-appeal panel issued a subpoena directing Canterbury Park
to provide surveillance videotapes of the events that occurred in August 2003
and December 2004. Canterbury Park
provided a complete videotape of the December events. But Molnar claims that Canterbury Park
provided only an edited version of two of the incidents alleged to have
occurred in August 2003. According to
Molnar, “other video tape[s] [were] in the care, custody and control only of Canterbury Park and its employees. Either Canterbury Park
violated the terms of the subpoena or destroyed evidence which likely would
have been exculpatory.” Molnar argues that because the videotape Canterbury Park provided was exculpatory, the court
can reasonably assume that the videotape it did not provide would have been
exculpatory too. We disagree.
Molnar raises this issue on appeal, he did not raise it at the hearing, in his
objections to the panel’s findings and conclusions, or during oral argument before
the commission. The issue, therefore, is
not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (stating that appellate courts
generally do not consider issues not raised in proceedings below). Even if the issue were properly before this
court, the record contains no evidence that any videotapes existed other than
those that Canterbury Park submitted at the time of the hearing, that
Canterbury Park destroyed or refused to produce those tapes, or that the tapes
would have been exculpatory. Molnar’s
claim is therefore without merit.
Molnar argues that the racing commission’s order upholding his permanent
exclusion from Canterbury
Park is not supported by
substantial evidence in the record as a whole.
We conclude otherwise.
racing commission upheld Canterbury Park’s decision to exclude Molnar from its
premises permanently based on a determination that Molnar (1) engaged in
unacceptable and inappropriate behavior, some of which violated Canterbury Park
policies, the Minnesota Human Rights Act, and Title VII of the Civil Rights Act
of 1964; (2) failed to cooperate with security personnel; and (3) constituted a
threat to public safety.
commission determined that Molnar violated Canterbury Park’s
policies against “abusive language” and conduct “demeaning of other players or
employees,” and the record supports the commission’s determination. The record shows that, in August 2003, a
waitress complained that Molnar had approached her from behind, put his arm
around her shoulder, and whispered into and then licked her ear. The incident was recorded on surveillance
videotape, which the commission reviewed in making its decision to uphold
A casino dealer testified that,
while she was suiting cards, Molnar came by and grabbed her around the waist. She also stated that on a previous occasion
Molnar rubbed her shoulders and that, despite requests that he not do so,
Molnar made sexual remarks to her and to other female employees. Another dealer testified that Molnar put his
hands on her sides and moved his hands upward by wiggling his fingers and
palms. She also stated that she had seen
Molnar touch other employees inappropriately.
Another employee, who acts as both a
supervisor and a dealer, similarly testified that in 2003 Molnar kissed her
cheek. She stated that in 2004, she
asked to be transferred to a different area because Molnar kept asking her to
come around the table and give him a hug.
She also stated that Molnar had a “really vulgar mouth,” and she
provided examples of Molnar’s sexual comments.
Additionally, a pit manager
testified that he spoke to Molnar about the complaint he had received from the
dealers and told him that Canterbury
Park needed to take
sexual-harassment complaints seriously.
Another pit manager testified that Molnar frequently made lewd comments
and that he had received complaints from dealers about inappropriate touching. The pit manager also stated that Molnar was orally
abusive and hostile when he was told that his behavior was not
appropriate. The manager concluded that
Molnar’s behavior jeopardized gaming integrity.
Finally, a security officer testified that Molnar refused his request
The record amply supports the racing
commission’s determination that Molnar’s behavior was inappropriate, threatened
public safety, and justified Canterbury
Park’s decision to
permanently exclude him from the card club.
also note that Canterbury
Park’s action was
justified by its need to comply with federal and state anti-discrimination
law. The Minnesota Human Rights Act
(MHRA) prohibits unfair discriminatory practices in employment, housing, public
accommodations, public services, and education.
Minn. Stat. §§ 363A.08-.13 (2004). And Title VII of the Civil Rights Act (Title
VII) prohibits discrimination in employment.
Because Molnar is a casino patron rather than an employer, his actions
would not directly invoke the provisions of either the MHRA or Title VII. But Canterbury
Park could nonetheless be
liable under Title VII for Molnar’s sexually harassing conduct. See
Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10th Cir. 1998) (“An
employer who condones or tolerates the creation of [a hostile work] environment
should be held liable regardless of whether the environment was created by a
co-employee or a non-employee, since the employer ultimately controls the
conditions of the work environment.”); Powell
v. Las Vegas Hilton Corp., 841 F. Supp. 1024, 1028 (D. Nev. 1992) (stating
that employer may be held liable under Title VII for sexual harassment of
employee by nonemployees, including customers, if employer knows or should have
known of conduct and fails to take immediate and appropriate corrective
employees complained about Molnar’s inappropriate touching and sexually
explicit comments, Canterbury
Park had a duty to
investigate and take appropriate action to avoid liability under Title VII. Molnar was repeatedly warned that touching
female employees was inappropriate and exposed the club to liability for sexual
harassment. The commission could
reasonably conclude that Canterbury
Park’s actions were
necessary to ensure compliance with federal and state anti-discrimination law.
E C I S I O N
did not violate Molnar’s constitutional or statutory right to due process when
it excluded him from the card club in August 2003. Nor did the commission abuse its authority or
its discretion by permanently excluding Molnar rather than merely fining him or
by considering all allegations of improper behavior. The commission’s order is supported by the
evidence in the record.