Mitchell v. FURMAN BEAUTY SUPPLY, INC.
| Decision Date | 14 March 1961 |
| Docket Number | Civ. A. No. 6756. |
| Parties | James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff, v. FURMAN BEAUTY SUPPLY, INC., Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Harold C. Nystrom, Acting Sol., Washington, D. C., Ernest N. Votaw, Regional Atty., U. S. Dept. of Labor, Chambersburg, Pa., for plaintiff.
Sidney E. Friedman, Harrisburg, Pa., for defendant.
Plaintiff alleges that the defendant, Furman Beauty Supply, Inc., was engaged in interstate commerce and in the production of goods for interstate commerce and had employed some of its employees for work weeks longer than forty hours, without compensating them at rates not less than one and one-half the regular rate at which they were employed for employment in excess of forty hours. Accordingly, plaintiff seeks to enjoin the defendant from violating the provisions of the Fair Labor Standards Act of 1938, as amended (29 U.S.C.A. § 201 et seq.)
We need not consider defendant's defense contained in its Answer "that it believes it is exempt from the application of the Act by virtue of the fact that * * it is engaged primarily in intrastate commerce and only in an insubstantial manner in interstate commerce" since defendant's second defense that "it is exempt by reason of Section 13(a) (2) of the (Fair Labor Standards) Act" is dispositive of the action.
This section (as 29 U.S.C.A. § 213) provides, inter alia, as follows:
In determining the applicability of this section in the instant case, we may start with certain facts which were agreed upon by the parties, namely:
1. The defendant's place of business is 416 Kelker Street, Harrisburg, Pennsylvania, at which place it displays and sells merchandise, and from which place of business it ships merchandise, by truck and other means, to customers, 98% of whom are within the State of Pennsylvania and approximately 2% are in the State of Maryland just over the border from Pennsylvania.1
2. The defendant sells to persons who operate beauty shops in which establishments beauty treatments are administered and hair dressing and styling performed.
3. The defendant also from time to time sells beauty shop equipment to be installed in beauty shops such as dryers, permanent waving equipment, cabinets, etc.
4. The merchandise sold to its customers is in small quantities.
5. The merchandise other than dryers, permanent waving equipment, cabinets, etc., consists of lotions and fluids and similar articles and are used by the hairdresser and beautician for the purpose of giving treatments to customers.
In the light of the testimony at the trial, I find further that:
6. All of the merchandise sold by the defendant other than dryers, permanent waving equipment, cabinets, etc., is used and consumed by its customers in the operation of their beauty establishments and in connection with services to the beauticians' customers. (Transcript of Record, Pages 29-31, 33, 34, 37.)2
7. The types of hair oils, et cetera, in which the defendant deals are not transferred in their original packages to the beauty parlors' customers but are sprayed on the customers' hair or otherwise used in giving the various types of treatment to the customer.
8. None of the merchandise sold by defendant to its beautician customers is resold by said customers but all of it is used and consumed in the various treatments administered by the beautician.
9. All of the sales made by defendant were retail sales recognized as such by this particular industry.
10. All of the sales made by defendant were retail sales recognized as such by the Commonwealth of Pennsylvania in its enforcement of its Selective Sales and Use Tax Act, March 6, 1956, 72 P.S. § 3403-1 et seq. See Commonwealth of Pennsylvania, Department of Revenue, Bureau of Sales and Use Tax, Form TRb-220.
11. All of the sales made by defendant were retail sales recognized by the Supreme Court of Pennsylvania. See Commonwealth v. Miller, 1940, 337 Pa. 246, 11 A.2d 141.
12. All of the sales made by defendant were retail sales as that phrase is understood by the common run of men. See Haynie v. Hogue Lumber & Supply Co. of Gulfport, Inc., 1951, D.C.S.D.Miss., 96 F.Supp. 214.
I am fully aware of the extreme liberality of the courts in the interpretation of this Act, and with this approach I am in complete accord. However, I do not think that in the interpretation of the Act the courts should lend themselves to a twisted and distorted concept of the meaning of plain and ordinary words as they are used in the exemption allowed by the Act.
According to the testimony in this case, not merely 75% but 100% of the annual dollar volume of sales of goods or services were not for resale and, as we have found,...
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Goldberg v. Furman Beauty Supply, Inc., 13638.
...whether Furman's predominantly intrastate business was within the reach of the Act apart from the specific exemption provision. See 193 F.Supp. 151. This issue was not raised on The pertinent facts are as follows: Furman, located in Harrisburg, Pennsylvania, is in the business of selling su......