Administrator v. DeSoto Enterprises, 94-CLA-38
(ALJ Jan. 28, 1997)
U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
Phone: 609-757-5312
Fax: 609-757-5403
DATE: January 28, 1997
CASE NO: 94-CLA-38
In the Matter of
ADMINISTRATOR, WAGE & HOUR
DIVISION U. S. DEPARTMENT OF LABOR,
Plaintiff,
v.
DESOTO ENTERPRISES, d/b/a
DESOTO BEACH CLUB
Respondent
Appearances:
Leslie John Rodriguez, Esq.
For the Plaintiff
Dr. William and Scott Sutlive, pro se
For the Respondents
Before: RALPH A. ROMANO
Administrative Law Judge
DECISION AND ORDER
This is a proceeding to impose a civil money
penalty for violation of the Fair Labor Standards Act of 1938
(hereinafter "the Act") as amended, 29 U.S.C. 201 et
seq. and the regulations issued thereunder at 29 C.F.R. 580.3
et seq.
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A hearing was held on October 22, 1996 in
Savannah, Georgia, at which time the parties were given full
opportunity to present witnesses, and present their claims and
defenses. References to the record are ALJ for Administrative
Law Judge exhibits; Tr. for transcript of hearing; "P"
for Plaintiff exhibits.
Although the parties were invited to submit
briefs, none was filed.
ISSUES
At issue is: (a) whether Respondents have
committed a violation of the Act, and (b) whether the amount of
the penalty assessed was appropriate. 29 C.F.R. 580.12(b).
THE LAW
29 U.S.C. 216(e) reads, in pertinent part, as
follows:
(e) Any person who violates the provisions
of section 212 of this title, relating to
child labor, or any regulation issued under
that section, shall be subject to a civil
penalty of not to exceed $10,000 for each
employee who was the subject of such a
violation. Any person who repeatedly or
willfully violates section 206 or 207 of this
title shall be subject to a civil penalty of
not to exceed ,000 for each such violation.
In determining the amount of any penalty
under this subsection, the appropriateness of
such penalty to the size of the business of
the person charged and the gravity of the
violation shall be considered.
29 C.F.R. 579.5, in pertinent part, reads as
follows:
§579.5 Assessing the penalty.
(a) The administrative determination of the
amount of the civil penalty, of not to exceed
$10,000 for each employee who was the subject
of a violation of section 12 of the Act
relating to child labor or of any regulation
issued under that section, shall be based on
the available evidence of the violation or
violations and shall take into consideration
the size of the business of the person
charged and the gravity of the violation as
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provided in paragraphs (b) through (d) of this section.
(b) In determining the amount of such
penalty there shall be considered the
appropriateness of such penalty to the size
of the business of the person charged with
the violation or violations, taking into
account the number of employees employed by
that person (and if the employment is in
agriculture, the man-days of hired farm labor
used in pertinent calendar quarters), dollar
volume of sales or business done, amount of
capital investment and financial resources
and such other information as may be
available relative to the size of the
business of such person.
(c) In determining the amount of such
penalty there shall be considered the
appropriateness of such penalty to the
gravity of the violation or violations,
taking into account, among things, any
history of prior violations; any evidence of
willfulness or failure to take reasonable
precautions to avoid violations; the number
of minors illegally employed; the age of the
minors so employed and records of the
required proof of age; the occupations in
which the minors were so employed; exposure
to such minors to hazards and any resultant
injury to such minors; the duration of such
illegal employment; and, as appropriate, the
hours of the date in which it occurred and
whether such employment was during or outside
school hours.
(d) Based on all of the evidence available,
including the investigation history of the
person so charged and the degree of
willfulness involved in the violation, it
shall further be determined, where
appropriate.
(1) Whether the evidence shows that the
violation is "de minimis" and that
the person so charged has given credible
assurance of future compliance, and whether a
civil penalty in the circumstances is
necessary to achieve the objectives of the
Act; or
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(2) Whether the evidence shows that the
person so charged had no previous history of
child labor violations, that the violations
themselves involved no intentional or
headless exposure of any minor to any obvious
hazard or detriment to health or well-being
and were inadvertent, and that the person so
charged has given credible assurance of
future compliance, and whether a civil
penalty in the circumstances is necessary to
achieve the objectives of the Act...
SUMMARY OF THE EVIDENCE
On February 24, 1993, Plaintiff assessed a
civil money penalty under the Act against Respondents in the
amount of $4,750. This assessment involved six (6) of
Respondent's employees for violations of under age, hours and
record-keeping deficiencies for the period May, 1990 to June,
1992 (ALJ 1). Respondents timely filed a request for hearing on
March 12, 1993 (ALJ 1).
Wage and Hour Investigator Rhonda Berrien as
well as Dr. William Sutlive and Scott Sutlive, owners of
Respondent, testified at the hearing.
1 I also find
Respondent's defense of justification considering parental
consent, and development of sense of responsibility for the
minors (Tr. 46-47), to be without merit as a matter of law.
2 $700 - Post-Nov. 1990 - 13 yr. old under age, plus $200 - 13 yr. old with no
dates of birth on record (see ALJ 1 - List of Violations).
3 Anderson,
Post Nov. 1990, 12 yr. old, under age violation,
Howard, Pre Nov. 1990, 13 yr. old, under age violation