dissenting. I agree with the formulation of the issue by the majority as:
*148“* * 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.”
In denying the horse-racing industry a “seasonal” classification, the administrator was acting in compliance with R. C. 4141.33 which provides, in pertinent part:
“(A) ‘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.” (Emphasis added.)
According to R. C. 4-141.33, the administrator can grant “seasonal” classification to the horse-racing industry only when, because of climatic conditions or the seasonal nature of the industry, it customarily operates for 40 or less weeks out of the year. Those words “climatic conditions” and “seasonal nature,” although written in the disjunctive, should be construed together in determining whether an industry is eligible for the seasonal classification. In construing a similar provision of the Arizona Workmen’s Compensation law, the court, in Pettis v. Indus. Comm. (1962), 91 Ariz. 298, 302, 372 P. 2d 72, held:
“* * * Seasonal employment refers to occupations which can be carried on only at certain seasons or fairly definite portions of the year. It does not include such occupations as may be carried on throughout the entire year.”
In reviewing the board’s decision, it is necessary to *149determine where the burden or proof lies in deciding on the classification. R. C. 4141.26 provides for review of the decisions of the administrator by the Board' of Review, whose decision in tnrn is reviewable by the Conrt of Common Pleas of Franklin County. The standard of review is established by R. C. 4141.26 as:
“* * * The conrt may affirm the determination or order complained of in the appeal if it finds, npon consideration of the entire record, that the determination or order is snpported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of snch a finding it may reverse, vacate, or modify the determination or order or make snch other ruling as is snpported by reliable, probative, and substantial evidence and is in accordance with law. The judgment of the conrt shall be final and conclusive unless reversed, vacated, or modified on appeal. * * *”
This court has not construed that quoted part of R. C. 4141.26, but it has construed a parallel part of R. C. 119.12.2 In the first paragraph of the syllabus of Andrews v. Board of Liquor Control (1955), 164 Ohio St. 275, the court held:
“Under Section 154-73, General Code, as amended in 1951 (Section 119.12, Revised Code), in an appeal from the Board of Liquor Control to the Court of Common Pleas of Franklin County, * * if from such a consideration it [the court] finds that the board’s order is not supported by reliable, probative and substantial evidence and is not in accordance with law, the court is authorized to reverse, vacate, or modify the order of the board. ’ ’
*150Appellees attempt to shift the focus of our attention, claiming that the question is what evidence did the board have before it of a change in climatic conditions for horse racing. Rather, the question should be: Whether there is any “reliable, probative, and substantial evidence” to support the board’s decision denying the seasonal exemption to the industry.
The record before the board indicated that horse racing was approved for and was being conducted in Toledo from January to March. This of itself was sufficient evidence that horse racing was not an industry in Ohio which “because of the seasonal nature of such industry it is customary to operate only during regularly recurring periods of forty weeks or less.”3
Appellees contend that the decision of the Toledo race track operators to request winter racing dates was determined by a change in the economic situation (competition with Detroit area race tracks), rather than a change in climatic conditions. This contention further supports the board’s decision. If economic factors are so determinative of the racing season that races can be held in the dead of winter in Toledo, then the decision to refuse a seasonal exemption was supported by reliable, probative, and substantial evidence.
The ruling for appellees was made by the lower courts *151on the basis that there was no evidence of a change in climatic conditions; such decisions resulted from a misunderstanding- of the standard of review established by R. C. 4141.26. A reviewing court may not substitute its judgment of the facts for that of an agency. Citizens to Preserve Overton Park v. Volpe (1971), 401 U. S. 402, 416. And inferences drawn from the facts are for the agency to determine, as the United States Supreme Court said in N. L. R. B. v. Nevada Consolidated Copper Corp. (1942), 316 U. S. 105, 107, * * if the findings of the board are supported by evidence the courts are not free to set them aside, even though the board could have drawn different inferences.”
So, since there was reliable, probative, and substantial evidence before the board to support its decision, as has been shown, the judgment of the Court of Appeals should have been reversed.
Celebrezze, J., concurs in the foregoing dissenting opinion.
R. C. 119.12:
“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal. * * *”
Evidence that the industry is not seasonal is bolstered by the industry’s publication, Trotting and Racing Guide,. showing that cold weather is not a deterrent to racing and that races are held in the wintertime in Michigan, northern Illinois, and at various colder locations in Canada, e. g.:
“Location Racetrack Season
“Northville, Michigan Northville Downs Jan. 1-27
“N. Aurora, Illinois Aurora Downs Jan. 1-Feb. 17
“Toronto, Ontario Greenwood Rcwy. Jan. 1-Mar. 17
“Montreal, Quebec Blue Bonnets Rcwy. Jan. 4-Apr. 29
“Quebec City, Que. J acques-Car tier Jan. 13-Dec. 16
“Lower Sackville, Nova Scotia Sackville Downs May 6-Nov. 12.”