APPEAL OF NIADNI, INC. d/b/а INDIAN HEAD RESORT MOTEL (New Hampshire Department of Employment Security)
No. 2013-313
Department of Employment Security
May 8, 2014
Argued: February 20, 2014
Affirmed.
LYNN and BASSETT, JJ., concurred; CONBOY, J., concurred specially.
CONBOY, J., concurring specially. In interpreting
New Hampshire Legal Assistance, of Concord (Daniel Feltes and Sarah Mattson on the brief, and Mr. Feltes orally), for the respondent, Norman Coulombe.
Vrountas, Ayer & Chandler, P.C., of Manchester (Christopher T. Vrountas and Adam J. Chandler on the brief, and Mr. Vrountas orally), for the New Hampshire Lodging & Restaurant Association, as amicus curiae.
HICKS, J. This is an appeal of the New Hampshire Department of Employment Security (DES) Appellate Board (board) decision that the respondent, Norman Coulombe, was an employee of the petitioner, Niadni, Inc. d/b/a Indian Head Resort Motel (the resort), who was entitled to unemployment compensation benefits under
The record supрorts the following facts. The resort is located in Lincoln. Live entertainment is offered in a function room that features both a stage and public address system. Peter Spanos, the president and owner of the resort, testified that his enterprise is a “resort type business” with “a
Coulombe appeared as a musical entertainer at the resort in both solo and group performances beginning in approximately 1980. He also performed at other venues but testified that he performed at the resort nearly three hundred times in thе last two years that he worked there. The resort and Coulombe negotiated a pay rate for Coulombe‘s services, and he was paid weekly for his performances. He provided his own instruments and selected the songs he would play in his performances, though the resort asked him to perform new material priоr to the end of his relationship with the resort. He reported that his last booking with the resort occurred on June 2, 2012, after which the relationship terminated. He subsequently filed for unemployment benefits with DES.
On July 19, 2012, DES determined that Coulombe was eligible for unemployment benefits. The resort appealed this determination to the DES Appеal Tribunal (tribunal). Following a hearing, the tribunal concluded that Coulombe “did not provide services in employment” under the exception contained in
Coulombe then appealed to the board. The board initially denied the appeal, but upon reconsideration, ruled that the tribunal‘s decision was erroneous because it drew a “distinction without substance” regarding the coordination of entertainment services. Accordingly, the board awarded unemployment benefits to Coulombe. The board denied the resort‘s subsequent motion to reconsider, and this appeal followed.
On appeal, the resort argues that: (1)
The appellate board shall not substitute its judgment for that of the commissioner or appeal tribunal as to the weight of the evidence on questions of fact, or as to the prudence or desirability of the determination. The appellate board shall reverse or modify the decision or remand the case for further proceedings only if the substantial rights of the appellant had been prejudiced because the findings, inferences, conclusions, or the decision is:
I. In violation of constitutional or statutory provisions; or
II. In excess of the statutory authority оf the department of employment security; or
III. Affected by reversible error of law; or
IV. Affected by fraud; or
V. Affected by the absence of newly discovered evidence, which was not available to the affected party upon reasonable search at the time of the first level hearing, in which case the appeal shall be remanded to the appеal tribunal.
Otherwise, the appellate board shall affirm the order.
Judicial review of tribunal decisions, as reversed, modified, or affirmed by the board, is confined to the record, and we cannot substitute our judgment as to the weight of the evidence on questions of fact for that of the tribunal. Appeal of N.H. Sweepstakes Commission, 130 N.H. at 662; see
The court shall reverse or modify the decision of the appeal tribunal, or remand the case for further proceedings, as determined by the court, only if the substantial rights of the appellant had been prejudiced because the administrative findings, inferences, or conclusions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of statutory authority;
(c) Made upon unlawful procedures;
(d) Clearly erroneous in view of the substantial evidence on the whole record; or (e) Affected by other error of law.
Otherwise, the court shall affirm the appeal tribunal‘s decision.
The resort challenges Coulombe‘s employment status based upon the exemption provided in
Services performed by an individual for wages shаll be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner of the department of employment security that:
(a) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
(b) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(c) Such individual is customarily engaged in an indeрendently established trade, occupation, profession, or business.
“The burden is on the party challenging an ‘employment’ determination to establish that all three requirements for exclusion have been satisfied; failure to establish any of them is conclusive proof of employment for purposes of
This appeal hinges upon the meaning of
Statutory intеrpretation is a question of law that we review de novo. We are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Unless we find that the statutory
Appeal of Stewart, 164 N.H. 772, 775 (2013) (quotation omitted).
“Outside the usual cоurse of the business” can be an elusive concept. See Carpet Remnant Warehouse v. Dep‘t of Labor, 593 A.2d 1177, 1186 (N.J. 1991) (interpreting similar provision in New Jersey statute). We have not adopted a general standard as to the meaning of this phrase, but several other courts have done so with regard to statutory provisions analogous to
We find the Supreme Court of Connеcticut‘s approach most useful. In Mattatuck Museum, the court examined a statutory provision similar to
The resort emphasizes its other amenities — including lodging, outdoor sporting activities, and scenic locations — to argue that the lounge and its related live entertainment are not essential to its business. The availability of these other amenities and services, however, does not negate the regular
The resort also argues that Coulombe‘s services are not within its usual course of business because it “does not itself provide live music and it is not a band or a group of musicians or singers,” and, “at most, [the resоrt] coordinates scheduling independent musicians such as Coulombe to play in the [resort] lounge.” We agree with the board that this is a “distinction without substance” in this case. The resort does not merely coordinate live entertainment. In addition to the regularity of live entertainment noted above, the resort maintains various amenities, including a stage and public address system, to facilitate live entertainment, and advertises upcoming performances to attract patrons to the resort. Cf. Bigfoot‘s, Inc., 710 P.2d at 181 (“Since it was usual and customary for the hotel to furnish entertainment in connection with its operations, the employment of musicians ... was within the ‘usual course of the business.’ “).*
Nor are we persuaded by the resort‘s suggestion that the board erred by failing to appreciate that Coulombe‘s services merely contributed to the resort‘s “ambience.” The resort relies upon Unemployment Compensation Commission v. Mathews, 111 P.2d 111, 119 (Wyo. 1941). In that case, the Supreme Court of Wyoming assessed the employment status of musicians performing in a restaurant and reasoned:
If a restaurant owner contracts with a florist to supply flowers for his tables, is that a service within the “usual course” of the owner‘s business? Flowers on the restaurant tables give pleasure to the owner‘s guests as does music played by those who can be hired to supply it in the restaurant rooms. Are the florist and those employed by him employees of the owner? We are inclined to think not.
Id. The resort cites this language in its brief and, at oral argument, analogized Coulombe‘s performances to these decorative “floral arrange-
This argument ignores the significance of Coulombe‘s services to the resort‘s business. Rather than creating mere “ambience,” Coulombe‘s services were used to attract new business to the resort, whose president and owner testified that the business provides “entertainmеnt.” The record includes several advertisements featuring Coulombe‘s likeness and the name of his musical acts. Under these circumstances, we conclude that Coulombe‘s services were not incidental to, but rather were an integral part of, the resort‘s business. Cf. Sinclair Builders, 73 A.3d at 1067 (“In order to demonstrate that an individual‘s services are nоt within the employer‘s usual course of business, the employer must show that the service is not an integral part of the employer‘s business, but is rather merely incidental to it.” (quotations omitted)).
Finally, the resort contends that the board‘s order undermines the purpose of
“The purpose of our unemployment compensation statute,
Because the resort has failed to demonstrate that it meets the test of
Affirmed.
DALIANIS, C.J., and CONBOY, LYNN аnd BASSETT, JJ., concurred.