Dart Indus., Inc. v. DEPT. OF LABOR & EMP. SEC.

596 So. 2d 725, 1992 WL 51249
CourtDistrict Court of Appeal of Florida
DecidedMarch 20, 1992
Docket91-701
StatusPublished
Cited by4 cases

This text of 596 So. 2d 725 (Dart Indus., Inc. v. DEPT. OF LABOR & EMP. SEC.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dart Indus., Inc. v. DEPT. OF LABOR & EMP. SEC., 596 So. 2d 725, 1992 WL 51249 (Fla. Ct. App. 1992).

Opinion

596 So.2d 725 (1992)

DART INDUSTRIES, INC., Appellant,
v.
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF UNEMPLOYMENT COMPENSATION, Appellee.

No. 91-701.

District Court of Appeal of Florida, Fifth District.

March 20, 1992.

*726 Allen J. McKenna of Garwood & McKenna, P.A., Orlando, for appellant.

Louise T. Sadler, Tallahassee, for appellee.

GOSHORN, Chief Judge.

Dart Industries, Inc. (Dart) appeals from the final order of the Division of Unemployment Compensation adopting the findings of fact and conclusions of law set forth by the special deputy in her recommended order. The special deputy found that certain classes of workers were employees of Dart and not independent contractors for purposes of unemployment compensation. Dart argues the findings of fact were not based on competent, substantial evidence and the conclusions of law were thus incorrect. We affirm the final order as to the parking lot attendants, ushers, and ticket takers, but reverse as to the other four categories of workers for the reasons hereinafter discussed.

DART INDUSTRIES

Dart Industries, Inc. has two separate divisions, Tupperware Home Parties, which primarily sells plastic goods, and Tupperware Convention Center which maintains and provides a convention center for use by Tupperware Home Parties and outside third parties. Tupperware Home Parties sponsors two forms of convention events to motivate independent Tupperware dealers. The larger event is a jubilee. Tupperware Home Parties hosts five to seven jubilees per year and each jubilee lasts three days. To assist in the production of each jubilee, Tupperware Home Parties hires numerous people, including scenic painters, photographers, security officers, and stage hands. The smaller event is a session, which is similar to a jubilee but done on a smaller scale.

In addition to Tupperware convention events, Tupperware Convention Center hosts a variety of outside third party productions. The contract that outside third parties must sign requires the user to maintain adequate traffic control, security, and parking supervision for these productions. However, if the user requests, Tupperware Convention Center agrees to arrange for these services. Under the contract, the user agrees to pay for the costs of hiring any people needed for the production, such as box office personnel, stage hands, stage managers, projectionists, ticket takers, ushers, and parking lot attendants. The contract requires the user to appoint Tupperware Convention Center as its representative and agent for paying the people employed during the production. After paying the people employed, Tupperware either bills the user or withholds the amount due to Tupperware from any money collected through advance ticket sales for the user.

APPLICABLE LAW

The order of the Division of Unemployment Compensation can be set aside only upon a finding that the order was not supported by competent, substantial evidence. Gershanik v. Department of Professional Regulation, Bd. of Medical Examiners, 458 So.2d 302 (Fla. 3d DCA 1984), review denied, 462 So.2d 1106 (Fla. 1985). This court cannot substitute its judgment for the agency's judgment as to the weight of the evidence on any disputed finding of fact. § 120.68(10), Fla. Stat. (1989).

Section 443.036(19)(a)1.b, Florida Statutes (1989) defines "employment" as any service performed by "[a]ny individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee." In Cantor v. Cochran, 184 So.2d 173, 174 (Fla. 1966) the supreme court reaffirmed its prior adoption of the tests found in the Restatement (Second) of Agency § 220 (1958) for analyzing employer-employee relationships. The Restatement sets out the following factors for consideration in determining whether one is an employee or an independent contractor:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
*727 (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or workman supplies the instrumentalities, tools, and a place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

Restatement (Second) of Agency § 220(2) (1958). Of these factors, the principal factor for consideration is the employer's right of control over the mode of doing the work. VIP Tours of Orlando, Inc. v. State, Dep't of Labor & Employment Sec., Div. of Employment Sec., 449 So.2d 1307, 1309 (Fla. 5th DCA 1984).

The special deputy heard testimony from representatives for each of the classes of workers under consideration and concluded that all classes fall within the definition of "employee," contrary to the independent contractor status previously enjoyed by each class.

SCENIC PAINTERS

Robert Moody testified as the representative of the class of scenic painters. Moody is a full time associate professor at Brandeis University, where he teaches a graduate theater program. For four years, he has travelled to Orlando to paint scenery for Tupperware. He paints backdrops which are 50 or 55 feet wide by 22 or 26 feet high and therefore, he does his work at the Tupperware studio. He works eight hours per day and five days per week for approximately nine weeks at the Tupperware studio. He negotiates the fees, times, payment, and duration of his work. He is free to accept or reject Tupperware's offer to work and either he or Tupperware is free to terminate the contract. Although Tupperware supplies the paint and tools, Moody brings some of his own tools to work. Moody considers himself an independent contractor and is responsible for paying his own taxes from his income. Moody testified that no one from Tupperware tells him how to paint, what brushes to use, or whether to spray or to brush to paint the scene. Moody also works with other companies as a scenic painter. There are very few scenic painters in the country.

The scenic painters at Tupperware work under the direction of a chargeman, who distributes the work and determines whether the scene work is complete or is satisfactory. The chargeman sets the hours for the paint crew in order to ensure that the painters work smoothly and efficiently together. The chargeman answers to the design staff, who gives Moody a blueprint and then a scale rendering of the scene. Moody then paints the scene. No one from Tupperware tells him how to do it. Although a designer might come in and ask the painters to darken the scene, the designer is only interested in a quality overall look arriving on time. While the painters' work is subject to review and correction, this review is merely to ensure that the end result meets the designer's expectations.

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Bluebook (online)
596 So. 2d 725, 1992 WL 51249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dart-indus-inc-v-dept-of-labor-emp-sec-fladistctapp-1992.