USDOL v. Max Dales, Inc., 97-CLA-10 (ALJ Sept. 22,
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 22, 1997
CASE NO: 97-CLA-10
In the Matter of:
U.S. DEPARTMENT OF LABOR,
Plaintiff,
v.
MAX DALES, INC., and
TONY PICKERING, 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.
Parts 570, 579 and 580. Pursuant to Section 216(e) of the Act, a
civil monetary penalty in the amount of $2,400.00 was assessed
against Max Dales, Inc., and Tony Pickering (collectively,
"Respondents") as the result of the alleged employment of
one minor in violation of the 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.
Procedural History
Pursuant to a Notice of Hearing and Pre-Hearing
Order issued August 4, 1997, this matter was scheduled for hearing
on September 22, 1997, at Seattle, Washington. On August 12, 1997,
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this office received Plaintiff's Motion for Continuance. Therein,
Plaintiff's counsel indicated that she had a scheduling conflict
and would be unable to attend the hearing. Therefore, Counsel
sought a continuance of the hearing, a request to which Respondent
had no objection.
On September 3, 1997, the undersigned issued an
Order granting Plaintiff's motion for a continuance. This Order
Granting Continuance was served upon the parties on September 3,
1997, and the administrative file was forwarded to the Office of
Administrative Law Judges for reassignment.
On September 5, 1997, this office was contacted
by counsel for Plaintiff who indicated that the parties had
amicably settled this matter. Counsel asked that the undersigned
retain jurisdiction so that the settlement can be approved once the
settlement documents have been executed. Based upon this
representation from counsel, the undersigned issued an "Order
Striking Hearing Date and Rescinding Order Granting
Continuance" on September 11, 1997.
This office received the parties' "Consent
Findings" on September 18, 1997. The document appears to have
been executed by
Rochelle Kleinberg, Esq., counsel for Plaintiff, and by Tony
Pickering, Respondent.
Consent Findings
The parties' Consent Findings provide in
pertinent part:
1. By notice dated October 3, 1996, pursuant to
Section 16(e) of the FLSA, and in accordance with
29 C.F.R. Part 579, a civil money penalty in the
amount of $2,400.00 was assessed by Plaintiff
against Respondents as a result of employment of
one (1) minor 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
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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, Max Dales, Inc., has been
an 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
says that they will continue in compliance
therewith;
6. Upon reconsideration of the amount of penalties
assessed for the minor in this case, Plaintiff does
hereby modify the notice of penalty of October 3,
1996, by reducing the assessment of civil penalties
to $250.00;
7. Respondents hereby withdraw their exception to the
assessment of civil money penalties, and agree to
accept the modified penalties as final and binding,
and agrees to pay said penalties of $250.00 within
thirty (30) days of the judge's Decision and Order.
The parties agree that in the event the payment is
more than fifteen (15) days late, the amended
penalty of $250.00 is voided and the original
proposed penalty of $2,400.00 will become due
immediately;
8. Any 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;
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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, and these consent findings;
10. All further procedural rights provided by 29 C.F.R.
Part 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)); and
11. The signing of this Consent Findings waives any
claim either party has to costs and/or attorney
fees.
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 October 3,
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 $250.00 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, which pursuant to the
parties' Consent Findings has been modified from
$2,400.00 to $250.00, is HEREBY AFFIRMED;
2. Respondents shall pay Plaintiff the reduced civil
monetary penalty of $250.00 within thirty (30) days
from the date hereof;
3. If Respondents fail to pay the aforementioned civil
monetary penalty of $250.00 within fifteen (15)
days after said penalty becomes due, the original
penalty of $2,400.00 will immediately become due;
and
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4. The parties' "Consent Findings" filed on
September 18, 1997, are hereby incorporated by
reference and made a part of this decision and
order.
Entered this 22nd day of September, 1997, at Long
Beach, California.