Schmidt v. Randall, Civ. No. 1899.

• Citation: 160 F. Supp. 228
• Decision Date: 13 March 1958
• Docket Number: Civ. No. 1899.
• Parties: Duane SCHMIDT, Plaintiff, v. J. W. RANDALL, dba The Buckman Hotel, Defendant.
• Court: U.S. District Court — District of Minnesota

160 F. Supp. 228

Duane SCHMIDT, Plaintiff, v. J. W. RANDALL, dba The Buckman Hotel, Defendant.

Civ. No. 1899.

United States District Court D. Minnesota, Fifth Division.

March 13, 1958.

Dennis F. Donovan, Duluth, Minn., for plaintiff.

John E. Simonett, Little Falls, Minn., for defendant.

Donald F. Pratt, Minneapolis, Minn., for Minnesota Hotel Association. Stuart Rothman, Washington, D. C., Herman Grant, Chicago, Ill., amici curiae.

DEVITT, District Judge.

The plaintiff brings this action to recover certain sums of money representing unpaid earnings which he claims he was entitled to under the Fair Labor Standards Act for portions of the years 1954 and 1956, and all of 1955. In addition, he seeks an equal amount as liquidated damages as provided for in 29 U.S. C.A. § 216.

The plaintiff was employed at the defendant's hotel in Little Falls, Minnesota during the years here involved. In addition to room rentals, the hotel provided bar and restaurant facilities. The hotel also served as a bus depot for the Northland Greyhound Lines or its subsidiary Central Greyhound Lines. The greater part of plaintiff's time was occupied in performing services which were directly connected with the bus depot portion of defendant's business. The agreement between the bus company and the defendant provided that defendant was to keep the receipts from the sale of bus tickets in his custody for the bus company and upon demand would turn them over, retaining a 10% commission as compensation. Defendant agreed, among other things, to provide certain facilities to bus patrons.

The case is presently before the court on cross-motions of the parties for summary judgment; they have stipulated that there is no genuine issue as to any material fact. The sole issue is whether, under the facts, defendant is subject to the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.

The plaintiff contends that defendant was subject to the Act at the times involved because a majority of the plaintiff's time was spent in work directly connected with interstate commerce.

The defendant claims to be exempt from the terms of the Act because of the provisions of 29 U.S.C.A. § 213(a) (2) which provides that the minimum wages and maximum hours provisions shall not apply to:

"any employee employed by any retail or service establishment, more than 50 per centum of which establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A `retail or service establishment' shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry."

The difficulty here arises over the amount to be included from the sale of the bus tickets in making the computation. If, as the plaintiff claims, the total amount received from the sale of each ticket is to be included in the defendant's annual dollar volume, then since the sale of bus tickets is not considered a retail sale or service, less than 75% of the defendant's dollar volume for each of the years in question constituted retail sales or services and thus the defendant does not qualify for the retail or service establishment exemption. If, as the defendant contends, only the actual commission received by him is to be included, then substantially more than 75% of the defendant's annual dollar volume constitutes retail sales or services and he...