State ex rel. Nilsen v. Hemstreet
| Citation | 491 P.2d 1185,7 Or.App. 474 |
| Parties | STATE of Oregon ex rel. N. O. NILSEN, Commissioner of the Oregon Bureau of Labor, Appellant, v. Jim HEMSTREET et al., Respondents. |
| Decision Date | 27 December 1971 |
| Court | Oregon Court of Appeals |
Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.
William E. Hurley, Portland, argued the cause for respondents. With him on the brief were Bernard, Hurley, Hodges & Kneeland, Portland.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
This appeal involves a question of statutory interpretation. The state, on relation of the Commissioner of the Oregon Bureau of Labor who is the assignee of nine wage claimants, filed a complaint in the circuit court to recover unpaid wages from the defendants pursuant to ORS 652.335(1).
ORS 652.335(1) provides:
The statute requires the existence of four elements before a wage claimant, or the commissioner or his assignee, can recover. The person against whom the claim is filed must (1) operate a commercial establishment where food is cooked and served; (2) hold an Oregon liquor dispenser's license issued under ORS 472.110; (3) not be the employer of the wage claimant; and (4) the wage claim must not be enforceable against the employer.
The lower court found that the defendants were not liable for the wage claims because they '* * * were not operating a commercial establishment as provided in ORS 652.335(1).'
The defendants are partners in The Dunes Motel in Newport, Oregon. The motel, as originally built, had 40 units. When the motel proved successful, the partners decided to add another 30 units on adjacent land owned by the partnership. The builder suggested the addition include a restaurant in that sufficient land was available. The partners agreed to construct a restaurant, but did not want to operate it. In order to obtain the construction contract, the builder promised to lease the restaurant facilities. A lease was executed in early 1968 and the builder operated the restaurant for about two months. During this time the restaurant did not have a bar.
The builder contacted Mr. and Mrs. Edmond Hansen who wanted to lease the restaurant and operate a bar in conjunction with it. The defendants executed a new lease with the Hansens and the lease with the builder was rescinded in consideration for his promise to guarantee the new tenants' performance of their lease.
The Hansens operated the restaurant from the date of the lease, August 15, 1968, until about February 6, 1970, when they became insolvent. After the Hansens went into possession, they applied for a liquor dispenser's license. If the license had been issued solely to the Hansens, they would have been able to move to another location and take the license with them; therefore, the defendants decided to have their names placed on the license, too. All five people--the three defendants and the Hansens--met at the office of the Liquor Control Commission, Milwaukie, and the license was issued in the names of all of them.
The defendants had no right to supervise the operation of the restaurant and bar under the terms of the lease and there was no proof that they participated in the business in any way. The only connection between the motel business on the one hand and the restaurant and the bar on the other was that motel guests could charge their liquor...
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State ex rel. Haas v. Club Recreation and Pleasure
...States Constitution. In construing the statute, we look to the natural and obvious meaning of the words. State ex rel. Nilsen v. Hemstreet, 7 Or.App. 474, 478, 491 P.2d 1185 (1971). Lewdness is defined as "gross indecency so notorious as to tend to corrupt the community's morals." Black's L......