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SC Administrative Law Court Decisions

CAPTION:
SCDLLR vs. The Furniture Farm, Inc.

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioners:
South Carolina Department of Labor, Licensing and Regulation, Division of Labor

Respondents:
The Furniture Farm, Inc.
 
DOCKET NUMBER:
96-ALJ-11-0463-CC

APPEARANCES:
For the Petitioner: Sharon A. Dantzler, Esq.

For the Respondent: Wesley Waites, Jr., Esq.
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE

This matter comes before me upon request of The Furniture Farm, Inc. ("Respondent") seeking a contested case hearing. The Department of Labor, Licensing and Regulation, Division of Labor Services ("Department" or "Petitioner") issued a penalty citation to the Respondent for alleged violations of the payment of wages statutes contained in Chapter 10, Title 41 of the 1976 South Carolina Code of Laws. The Furniture Farm, Inc. denies any penalties are due.

After notice to the parties, a contested case hearing was held at the Administrative Law Judge Division ("Division") offices in Columbia, South Carolina on December 17, 1996. Based upon the evidence presented, I find that the citation was properly issued and the fine in the amount of $150.00 requested by the Department is imposed.



EVIDENCE

The Petitioner presented as its witnesses Ms. LaFredia Stack, an investigator with the Department, and Mr. Sherwood Collins, a former employee and salesman of Respondent. Ms. Stack testified about her investigation of Respondent concerning the above stated allegations. She also testified to her findings after reviewing Respondent's ledger sheets relative to the alleged commissions owed to Mr. Collins. Mr. Collins testified that he left the employment of Respondent on June 26, 1996, in anger, when told by Respondent's secretary that he was going to have deductions withheld from his paycheck. He further testified that since approximately April, 1996, he was paid six percent (6 %) commission on all sales he made; also, that he collected his commissions when the sales proceeds were collected. Respondent presented no evidence nor any testimony. However, it was Respondent's position that Mr. Collins was not due the commissions, which were collected by Respondent in its normal course of business, because it was Mr. Collins' job to collect them, and he failed to do so.



FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to both parties.

3. The Furniture Farm, Inc., is a corporation organized and doing business under the laws of the State of South Carolina. It operates as a furniture store at 1212 D Avenue, West Columbia, South Carolina.

4. The owner of The Furniture Farm, Inc. is Mr. Sam Rikard, who actively participates in its operation.

5. Mr. Sherwood Collins was employed between March, 1995 and June 26, 1996 as a salesman with the Respondent. When he began his employment with Respondent, he was paid a salary. Subsequently, he was paid a five percent (5 %) commission on all sales made and around April, 1996, his sales commission increased to six percent (6 %).

6. On June 26, 1996, Mr. Collins terminated his employment with Respondent when he was told by Respondent's secretary, Ms. Irene Mills, that withholdings would be taken from his paycheck. He told Ms. Mills that he was quitting his sales job with Respondent.

7. At the time of Mr. Collins' termination of employment with Respondent, he had consummated sales with customers of Respondent for which the payments had not cleared. Subsequently, those sales amounts were processed as received by Respondent. However, Respondent refused to pay the commissions owed to Mr. Collins according to the method such payments were made while he was in the employ of Respondent. As of the date of the hearing, the commissions due to Mr. Collins for two separate pay periods had not been paid to him.

8. Subsequent to Mr. Collins' termination of employment with Respondent, he called Mr. Rikard and asked for payment of the commissions owed. The requested payments were refused by Mr. Rikard.



9. There was never any written contract of employment between Mr. Collins and Respondent delineating the terms of payment of compensation or wages, termination of employment or otherwise.



CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1. S. C. Code §1-23-600 (Supp. 1995) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S. C. Code §41-10-10, et. seq. (Supp. 1993) governs payment of employee wages.

3. S. C. Code §41-10-40 (D) provides that employers shall pay all wages due at the time and place designated by subsection (A) of § 41-10-30.

4. S. C. Code § 41-10-20 provides that Chapter 10 of Title 41 applies to all employers in South Carolina except employers of domestic labor in private homes and employers employing fewer than five employees at all times during the preceding twelve months.

5. A civil penalty of up to One Hundred & no/100 ($100.00) Dollars may be imposed upon covered employers for each violation of the provisions of S. C. Code § 41-10-40 (Supp. 1995). S. C. Code § 41-10-80 (B) (Supp. 1995). Each failure to pay wages when due constitutes a violation.

6. The fact-finder in a case has the authority to impose a penalty consistent with the facts presented. Walker v. S. C. ABC Comm'n, 305 S. C. 209, 407 S. E. 2d 633 (1991).

7. Based upon the evidence presented, it is clear that Respondent failed to make payments of sales commissions or wages to Mr. Collins, its former employee, at the regularly scheduled time. The evidence is clear that Respondent collected the commissions as a part of the sales price on the items of furnishings sold by Mr. Collins; however, Respondent refused to pay them to Mr. Collins on two occasions when collected, which was the standard method of payment.

8. Accordingly, I find and conclude that a civil penalty of Seventy Five & no/100 ($75.00) Dollars for each violation or, a total of One Hundred Fifty & no/100 ($150.00) Dollars, to be imposed against Respondent, as requested by the Department, is appropriate in this case.









ORDER



Based upon the foregoing Findings of Facts and Conclusions of Law, it is hereby:

ORDERED that Respondent, The Furniture Farm, Inc., violated the payment of wages statutes by failing to pay to its employee, Mr. Sherwood Collins, wages at the date and time required according to their custom, and that a civil penalty in the amount of One Hundred Fifty and no/100 ($150.00) is imposed upon Respondent and, it is further

ORDERED that Respondent shall make payment of the civil penalty to the Department within thirty (30) days of the date of this Order.

AND IT IS SO ORDERED.





_________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

January 9, 1997


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