Turnberry Isle Resort and Club v. Fernandez, 94-685

• Decision Date: 17 January 1996
• Docket Number: No. 94-685,94-685
• Citation: 666 So.2d 254
• Parties: 21 Fla. L. Weekly D178 TURNBERRY ISLE RESORT AND CLUB, Appellant, v. Madoc D. FERNANDEZ, et al., Appellees.
• Court: Florida District Court of Appeals

Page 254

666 So.2d 254

21 Fla. L. Weekly D178

TURNBERRY ISLE RESORT AND CLUB, Appellant, v.Madoc D. FERNANDEZ, et al., Appellees.

No. 94-685.

District Court of Appeal of Florida Third District.

Jan. 17, 1996.

Fisher & Phillips and Christopher D. Robinson, Ft. Lauderdale, for appellant.

John D. Maher, Tallahassee, for appellees.

Before NESBITT, BASKIN and GREEN, JJ.

NESBITT, Judge.

Turnberry Isle Resort and Club appeals from a final order of the Florida Unemployment Appeals Commission in favor of Madoc Fernandez.We reverse.

Fernandez, the claimant below, filed for unemployment compensation benefits on June 27, 1993.Fernandez had been unemployed since his employment with Turnberry ended in May, 1992.He received weekly unemployment benefits of $122.00 during the next year, from June 1993 through June 1994.The record shows that Fernandez did not work during that benefit year.At the end of that benefit year, Fernandez received a determination from the Florida Department of Labor Unemployment Compensation Division(Division) stating that he was ineligible to receive further unemployment compensation benefits because he had not performed services earning three times his weekly benefit amount since he originally filed his claim for benefits.Fernandez was required to earn $366.00 to meet the requalifying requirement.

One month after being notified of his ineligibility, Fernandez worked at moving and assembling a piano, for which he was paid $230.00.Two weeks later he performed landscaping and pool cleaning services, for which he was paid $150.00, $40.00 of which was for pool chemicals.When Fernandez reapplied for unemployment benefits, claiming that he had met the requalifying requirement by earning a total of $380.00, the Division issued a determination that Fernandez had met the requalifying terms, and reinstated his unemployment benefits.Turnberry appealed, and after a formal hearing the claims officer ruled in Fernandez's favor.The Unemployment Appeals Commission affirmed, and Turnberry now appeals that affirmance.

Section 443.091(2), Florida Statutes(1993), provides in part:

No individual may receive benefits in a benefit year unless, subsequent to the beginning of the next preceding benefit year during which he received benefits, he performed service, whether or not in employment as defined in s. 443.036, and earned remuneration for such service in an amount equal to not less than 3 times his weekly benefit amount as determined for his current benefit year.(emphasis added).

At issue is whether the "remuneration" referred to in section 443.091(2) includes materials and supplies such that Fernandez can claim that the $40.00 he spent on pool chemicals, out of the $150.00 he was paid for the job, can be considered part of the total remuneration necessary for determining his eligibility for unemployment benefits.

"Remuneration" is not defined within Chapter 443.Under the doctrine of noscitur a sociis the meaning of statutory terms, and the legislative intent behind them, may be discovered by referring to words associated with them in the statute.Cepcot Corp. v. Department of Bus. and Prof. Regulation, 658 So.2d 1092, 1095(Fla. 2d DCA1995).Here, an individual seeking benefits must earn "remuneration for such service " performed within the allotted time frames.To "remunerate" is defined as, "to pay an equivalent to (a person) for a service, loss, or expense."Webster's Third New International Dictionary 1921(1986)(emphasis added).Clearly, the legislature chose to define the remuneration a claimant needed to earn by referring to the service performed and not the expenses incurred.Had it chosen to do so, it could have included remuneration for service and expenses, however, it stopped at service.¹

We acknowledge that an agency's interpretation of a statute, with which it is legislatively charged with administering, shall be accorded great weight and should not be overturned unless clearly erroneous, arbitrary, or unreasonable.Cargill, Inc. v. Hill, 503 So.2d 1340, 1342(Fla. 1st DCA1987) (quoting Department of Ins. v. Southeast Volusia Hosp. Dist., 438 So.2d 815(Fla.1983), appeal dismissed, 466 U.S. 901, 104 S.Ct. 1673, 80 L.Ed.2d 149(1984);76 Am.Jur.2dUnemployment CompensationSec. 17(1992).

An agency's construction of a statute, however, must have some nexus to the context of the statute.Cepcot Corp., 658 So.2d at 1095.Although chapter 443 should be accorded a liberal interpretation to fulfill its beneficent purpose, there is neither reason nor policy expressed in the language of the statute to support the view that reimbursement for supplies should be considered remuneration for service performed.A rule of liberal construction may not be employed to support a conclusion that has no basis either in the statute, rules of the commission, sound business practice, or common sense.

The dissent has read section 443.091(2) out of context.It points only to a connecting clause of that sentence which in part provides for benefits "whether or not employed as defined in s. 443.036."The fallacy in that observation is the neglected aspect of the statute.It fails to recognize that the clause must be read in conjunction with that which follows which explicitly provides: "and earns remuneration for such service...."The dissent reads the statute in the disjunctive while it plainly provides for benefits to be calculated based upon "earned remuneration."The statute must be read in the conjunctive.

Finally, the $150.00 that claimant aggregated in order to attain the threshold amount was not paid, as the dissent suggests, "without differentiation as to any cost incurred."Instead, from the claimant's own testimony in his case-in-chief, he testified he received $110.00 for his service and $40.00 for reimbursement of "pool supplies."²

Reversed.

GREEN, J., concurs.

BASKIN, Judge (dissenting).

I would affirm the order of the Commission adopting the appeals referee's decision awarding claimant unemployment benefits."[A] reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence."Public Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989(Fla.1985);Nelson v. Dade County Aviation Dep't, 616 So.2d 56(Fla. 3d DCA1993).The Commission's decision is not contrary to the language of section 443.091(2), Florida Statutes(1993), and the Commission, the agency entrusted with the interpretation of this section, rejected the employer's argument.

Section 443.091(2) states:

No individual may receive benefits in a benefit year unless, subsequent to the beginning of the next preceding benefit year during which he received benefits, he performed services, whether or not in employment as defined in s. 443.036, and earned remuneration for such service in an amount equal to not less than 3 times his weekly benefit amount as determined for his current benefit year.

(emphasis supplied).Pursuant to chapter 443, an individual may qualify for benefits if he performed services and earned sufficient remuneration in a benefit year.³The statute expressly provides that such remuneration need not be earned pursuant to employment as defined in the chapter.Apparently, remuneration from self-employment is permissible under the statute.Such employment may require equipment or supplies necessary to perform the required services.However, the statute does not state that supplies may not be included in the amount earned.Section 443.031, Florida Statutes(1993), requires that "[t]his chapter shall be liberally construed to accomplish its purpose ... to provide through the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment."In construing the phrase "remuneration for such service" to exclude supplies, the majority violates the express legislative mandate and strictly, rather than liberally, construes the statute.Moreover, the majority apparently ascribes a literal meaning to the term 'service' in contravention of the legislative intent.SeeHolly v. Auld, 450 So.2d 217(Fla.1984);Cepcot Corp. v. Department of Business & Professional Reg., 658 So.2d 1092(Fla. 2d DCA1995).

Under the Worker's Compensation Act, "wages" is defined, in part, as "the money rate at which the service rendered is recompensed under the contract of hiring."Sec. 440.02(24),Fla.Stat.(1993).⁴In determining the amount of wages:

[W]hen an employee furnishes both services and equipment, and the furnishing of equipment is a specified and substantial portion of the contract, the amount legally attributable to rental of the equipment should not be included in determining the employee's average weekly wage.

Dickerson, Inc. v. McCleary, 498 So.2d 651, 652(Fla. 1st DCA1986);Pony Express Courier v. Blair, 632 So.2d 164(Fla. 1st DCA1994).I would apply that principle in determining the amount of claimant's remuneration under chapter 443.Here, however, claimant was not paid separate specified amounts for services and supplies; he was paid $150 without differentiation as to any costs incurred.⁵The appeals referee properly concluded that the entire amount was payment for services and that claimant earned the requisite remuneration to requalify for benefits.An agency's interpretation of an undefined term "does not have to be the only one or the most desirable one; it is enough if it is permissible."Tri-State Sys., Inc. v. Department of Transp., 491 So.2d 1192, 1193(Fla. 1st DCA1986).The referee apparently concluded that the statute does not limit the amount to net remuneration after costs and supplies."If a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily construed as excluding from its operation all those matters not expressly mentioned."Sun Coast...