USDOL v. BCD, Ltd., 97-CLA-9 (ALJ Sept. 23, 1997)

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USDOL v. BCD, Ltd., 97-CLA-9 (ALJ Sept. 23, 1997)

U.S. Department of Labor
Office of Administrative Law Judges
501 W. Ocean Boulevard, Suite 4300
Long Beach, California 90802
(310) 980-3594
(310) 980-3596 FAX (310) 980-3597

DATE: September 23, 1997

CASE NO: 97-CLA-9

In the Matter of:

U.S. DEPARTMENT OF LABOR,
Plaintiff,

BCD, LTD.,
COLORADO BLVD. CAR WASH AND DETAIL,
BSD, LTD., and
WILLIAM L. BEAR, an individual,
Respondents.

DECISION AND ORDER BASED UPON CONSENT FINDINGS,
AFFIRMING MODIFIED CIVIL MONETARY PENALTY

This matter arises under the child labor provisions of the Fair Labor Standards Act of 1938 (the "Act" or "FLSA"), 29 U.S.C. § 212, and in accordance with the applicable regulations contained at 29 C.F.R. §§ 570-80. Pursuant to Section 216(e) of the Act, a civil monetary penalty in the amount of $49,700.00 was assessed against BCD Ltd., Colorado Blvd. Car Wash and Detail, BSD Ltd., and William L. Bear (collectively, "Respondents") as the result of the alleged employment of numerous minors in violation of child labor provisions. As provided for in 29 C.F.R. § 580.6, Respondents have filed an exception to the determination of the U.S. Department of Labor ("Plaintiff"), finding that Respondents had violated the child labor provisions. This matter has subsequently been assigned to the undersigned administrative law judge for the purposes of conducting a formal hearing and issuance of a decision and order pursuant to 29 C.F.R. §§ 580.10-580.18.

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Procedural History

On February 10, 1997, this office received Plaintiff's Pre-Hearing Exchange. After granting Respondents' motion for extension of time, this office received Respondents' Pre-Hearing Exchange on February 25, 1997. Pursuant to a Notice of Hearing and Pre-Hearing Order issued July 25, 1997, this matter was scheduled for hearing on December 1, 1997, in Denver, Colorado.

This office received the parties' "Consent Findings," "Settlement Agreement," and "Stipulation"¹ on September 15, 1997. These documents appear to have been executed by Katherine Vigil, Esq., counsel for Plaintiff, by Leslie Petri, Esq., counsel for respondent Bear's Car Wash, and by William L. Bear, individually and on behalf of respondents BCD Ltd., Colorado Blvd. Car Wash and Detail, and BSD, Ltd.

Consent Findings

The parties' Consent Findings provide in pertinent part:

1. By notice dated February 8, 1996, pursuant to Section 16(e) of the FLSA, and in accordance with 29 C.F.R. § 579, a civil money penalty in the amount of $49,700.00 was assessed by Plaintiff against Respondents as a result of employing numerous minors in violation of the child labor provisions of Section 12 of the FLSA and the regulations issued thereunder;

2. Respondents, on October 10, 1996, filed a timely exception to the assessed civil money penalty pursuant to the FLSA and the regulations;

3. Subsequent to the filing of the exception, an Order of Reference was filed, referring this case to the Chief Administrative Law Judge, pursuant to 29 C.F.R. § 580.10;

4. Plaintiff alleges and Respondents admit that at all times pertinent hereto Respondents have been an

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enterprise engaged in commerce or the production of goods for commerce within the meaning of Sections 3(r) and 3(s)(2) of the FLSA;

5. Respondents certify that they are presently in compliance with the provisions of Section 12 of the FLSA and the implementing regulations, and further state that they will continue in compliance therewith;

6. Upon reconsideration of the amount of penalties assessed for the numerous minors in this case, Plaintiff does hereby modify the notice of penalty of February 8, 1996, by reducing the assessment of civil penalties to $29,900.00;

7. Respondents hereby withdraw any and all exceptions to the assessment of civil money penalties, as amended by these consent findings, and agree that said amended penalties shall be the final determination of the Secretary;

8. Respondents agree to pay said penalties in two equal installments of $14,950.000, due on December 15, 1998, and April 15, 1999, respectively, to be paid by check made payable to "Wage-Hour Division, Labor," with the case name and docket number included on the check, and mailed to Wage-Hour Office, 615 Federal Bldg., 1961 Stout Street, Denver, CO 80294;

9. The entire record upon which any final order may be based shall, pursuant to 29 C.F.R. § 18.9(b)(2), consist of the notice of penalty, as modified herein, the order of reference, and these consent findings;

10. All further procedural rights provided by 29 C.F.R. § 580 and any rights to contest the validity of these consent findings or any order issued pursuant thereto are hereby waived (See 29 C.F.R. § 18.9(b)(3), (4));

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11. The signing of this Consent Findings waives any claim either party has to costs, attorney fees, and other expenses; and

12. The order entered in accordance with these consent findings shall, pursuant to 29 C.F.R. § 18.9(b)(1), have the same force and effect as an order made after full hearing.

These consent findings are reasonable in light of the record, and conform to the applicable regulations. 29 C.F.R. § 18.9(b), (c) (1994). The undersigned has carefully reviewed the February 8, 1996, assessment of civil monetary penalties, Respondents' exception thereto, and Plaintiff's Order of Reference. After doing so, the undersigned finds that the reduced civil monetary penalty in the amount of $29,900.00 is fair, reasonable and adequate to both Plaintiff and Respondents. As such, the same is hereby affirmed pursuant to 29 C.F.R. § 580.12 (1994).

ORDER

IT IS HEREBY ORDERED that:

1. The civil monetary penalty assessed by notice on February 8, 1996, which pursuant to the parties' Consent Findings has been modified from $49,700.00 to $29,900.00, is HEREBY AFFIRMED;

2. Respondents shall pay Plaintiff the reduced civil monetary penalty of $29,900.00 in two equal installments of $14,950.00, due on December 15, 1998 and April 15, 1999, respectively; and

3. The parties' "Consent Findings" filed on September 15, 1997, are hereby incorporated by reference and made a part of this decision and order.

Entered this 23rd day of September, 1997, at Long Beach, California.

DANIEL L. STEWART
Administrative Law Judge

[ENDNOTES]

¹Plaintiff included copies of the Settlement Agreement and Stipulation with the Consent Findings as a courtesy to this court. The Office of Administrative Law Judges has no jurisdiction over the issue of back wages. 29 U.S.C. § 216(c) (1996). As this office may only render a decision on the issues referred to it by the Administrator, this Decision and Order shall only address the Consent Findings. 29 C.F.R. § 580.12 (1994).