Creative Designs Tattooing Assoc.s Inc v. The Estate Of Earle Lindsey Parrish

Decision Date25 May 2010
Docket NumberRecord No. 1431-09-2,02 September 1925
Citation56 Va.App. 299,693 S.E.2d 303
PartiesCREATIVE DESIGNS TATTOOING ASSOCIATES, INC.v.The ESTATE OF Earle Lindsey PARRISH, III.Uninsured Employer's Fund of Virginiav.The Estate of Earle Lindsey Parrish, III and Creative Designs Tattooing Associates, Inc.
CourtVirginia Court of Appeals

COPYRIGHT MATERIAL OMITTED

S. Vernon Priddy III (Mary Louise Kramer; Sands Anderson Marks & Miller, P.C., on briefs), Richmond, for Creative Designs Tattooing Associates, Inc.

Andrew R. Blair (Blair Law Offices, on brief), Richmond, for Uninsured Employer's Fund of Virginia.

Charlene A. Morring (Julie Roscoe Eckstein; Montagna Klein Camden, Norfolk, on brief), for The Estate of Earle Lindsey Parrish, III.

Present: ELDER, McCLANAHAN and HALEY, JJ.

HALEY, Judge.

In these consolidated cases, appellants, Creative Designs Tattooing Associates, Inc. (“Creative”) and the Virginia Uninsured Employer's Fund (“Uninsured”), maintain the Workers' Compensation Commission erred inter alia, in determining that Earle Lindsey Parrish, III (“Parrish”) was an employee of Creative, rather than an independent contractor. We agree, and conclude that Parrish was an independent contractor and, accordingly, his estate is not a beneficiary of the Workers' Compensation Act.1

That conclusion renders moot appellants' further claims that the commission erred in finding that Parrish's death arose out of his employment and that Creative had three or more employees regularly in service, accordingly authorizing a fine for failure to maintain workers' compensation insurance.

FACTS

Resolution of the dispositive issue necessitates a lengthy statement of the undisputed relevant facts. For background purposes, we note that on May 27, 2005, one or more individuals entered Creative Designs, a tattoo parlor, where Parrish and one Mike Grogan were working as tattoo artists. Grogan was tattooing an individual in one room; Parrish was in the lobby. Grogan heard a “pop” which he did not recognize as a gunshot. A man with a gun entered the room and directed Grogan and his client to the basement, where he robbed both of them. Grogan advised he could not open a safe on the premises. Grogan did not hear any conversation one or more of the men had with Parrish. After the gunman left, Grogan discovered Parrish had been shot. Parrish died soon thereafter in a local hospital.2

Creative is a Virginia corporation owned by Janice L. Childress who operates a tattoo parlor in a building in Richmond. The parlor has space for two “chairs.” These “chairs,” or workstations, are located in closed rooms for privacy purposes. If a tattoo artist wished to work there, he or she would contact Childress and she would review the artist's “portfolio” of work. If Childress found the same acceptable and had an unoccupied chair, she would offer the artist an opportunity to work at the parlor. Apparently, in this field, artists shift from one parlor to another, as their circumstances, location, or desires dictate. Though Childress had the power to tell an artist a chair was “no longer available” for that artist, she had never done so prior to Parrish's death and any change in the artists who worked at Creative evolved because one would leave and seek another opportunity and another would contact Childress.

Childress and an artist negotiated a percentage of proceeds to be received by the artist and the parlor-usually 50% each.3 Childress testified, “At the end of the night, [the artists] calculate the tattoos that they have done during the day and would fill that out on an envelope, take their percentage, put my percentage in the envelope and then deposit it in the safe.” The safe was located on the premises and was “under [Childress'] control to take [her] money out of the safe.” A combination number could open the safe, but there was no evidence that any artist had access to the same. The proceeds were almost always in cash, and the artists were free to take out their percentage upon receipt.

Childress had no written contracts with the artists. She provided no employee benefits, such as health insurance or retirement. She retained no sums for taxes, social security, or Medicare. She provided no records for the artists. She provided no W-2 or W-9 to the artists, and there is no evidence that any artist requested that she provide the same.

The artists set the hours they chose to work, that is, as the evidence showed, an earlier artist wanted to work from 11:00 a.m. to 7:00 p.m. Parrish had chosen to work from noon to 9:00 p.m. Each artist had a key to the premises, so as to accommodate his or her chosen work schedule. The artists opened and closed the doors, turned off and on an alarm system, answered any phone calls, and set up any appointments resulting from those calls as they desired.

With respect to the artists' actual work, Childress did not mandate any number of hours of work per week, did not by herself determine when the parlor would or would not be open, did not direct how the work was to be done, did not direct what designs or colors were to be used for the tattoos, did not review the tattoo work, did not approve the artists' tools of the trade, did not meet with or receive phone calls from prospective clients, or schedule their appointments. Childress provided neither a receptionist nor janitor for the premises. The only time Childress became involved was, if there was a customer complaint, then she and the artist would meet with the customer to try to resolve the same (since she and the artist each had a financial interest in that resolution). That resolution could include a refund.

How was the price for a tattoo determined? Childress had no input whatsoever as to pricing. She determined no minimum or maximum price. The price of a tattoo was determined solely by negotiation between the client and the artist.

What are the tools of a tattoo artist's trade? Such an artist uses at a minimum two tattoo machines, one a liner and one a shader, though some used five or six machines for various purposes. Also used are a variety of inks, tubing for use between the inks and the machines, needles, a portfolio of available designs, Vaseline or similar ointments, bibs for the artist, gloves, and towels. Childress supplied none of these tools, and did not inspect them for adequacy. The artist brought all of the tools of the trade to the enterprise, and, as their owner, the artist was free to carry the tools away upon relocation. The only items Childress supplied were two release/ disclosure forms, one prepared by her attorney for Creative, and one mandated by the Virginia Board For Barbers and Cosmetology, to be executed prior to tattooing, and a “sharps container” for used needles. A “sharps container” is apparently a sealed hazardous waste trashcan.

Parrish and Mark Grogan were the two artists on the premises. Grogan had worked at Creative from 1995 to 2000, when he “left on his own” because he wasn't getting along with one of the other artists.” In 2005, he decided to return to Creative, as there was a “chair” available, and agreed to a 55% (for him)/45% proceeds division with Childress. His first day back at Creative was May 27, 2005, the day of Parrish's death.

Consistent with Childress' testimony, Grogan testified he “decided his schedule,” and “told them when [he] wanted to work.” He continued:

Q. [W]ho makes the decision as to how much the customer is going to be charged for a specific tattoo?
A. I do.
Q. Okay. And is that negotiated with the customer?
A. Yes, sir.
Q. Okay. And if there's any negotiations on the charge, does the [sic] Jan Childress or Creative Design participate in that or is that between you and the customer?
A. That's between me and the customer.
Q. [T]he process that you do to apply the tattoo, is that solely your decision or is there input from Creative Designs?
A. That's solely mine.... I do it the way I want to do it.

Grogan further testified that Creative Designs never withheld taxes or provided any benefits, like health insurance, sick leave or vacation time. Finally, he concluded: “To [his] knowledge ... all his work arrangements were the same as were Parrish's.”

DECISION HISTORY

By opinion dated October 10, 2008, the deputy commissioner concluded Parrish was an employee. His reasoning consisted only of the following: Parrish

had acquired managerial responsibilities over time, including opening and closing the shop and dealing with the alarm system ... [, and] the shop had scheduled work hours which, though negotiable, required an artist to be present at the shop during those hours. From this evidence we find the benefits of independence and control which characterize an independent contractor did not inure to the claimant.

A majority of the commission affirmed. With respect to the paramount issue of control, the commission noted that Childress “interviewed the artists before accepting them ... [,] ... had the authority to fire a tattoo artist[, and] set the work hours for advertising purposes....” 4 The majority further noted that “the artists were paid a percentage ... [and] instructed how to split the money and deposit the money in the safe.” In addition, the majority wrote that Childress provided the sharps container, required the execution of the release forms,5 and “dealt with customer complaints.” However, as the commission further noted, “Childress testified that being a tattoo artist involved artistic skill, artistic talent, specific training and specific knowledge, none of which she herself possessed.”

Commissioner Williams dissented. He noted Childress

did not exercise control over the decedent's work. The decedent made all the decisions regarding the means and methods by which he performed his work.... The decedent provided and maintained his equipment and supplies. The decedent chose his hours of work.... The decedent did not work for wages or a salary. Indeed, he and he alone determined the amount he would
...

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