Opinion
Dec. 24, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1341
Gresham, Stifler & Murphy, P.C., Thomas D. Gresham, Colorado Springs, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado (Ex-officio Unemployment Compensation of Colorado).
RULAND, Judge.
Petitioner, Harry T. Hudson (Hudson), as general partner for a limited partnership operating a shopping center in Colorado Springs, seeks this review of a final order of the Industrial Commission awarding unemployment compensation benefits to Anne M. Pfeiffer (claimant). We affirm.
The record reflects that Hudson foreclosed on a bar and restaurant in the shopping center known as The Hoods, thereby acquiring title to its furniture and equipment. Thereafter he entered into a conditional sales agreement with Hans Pfeiffer, husband of claimant, which provided for ultimate transfer of The Hoods to Pfeiffer after six and one-half years if Pfeiffer performed certain stated obligations, including negotiating a lease with the shopping center. However, the agreement further provided, insofar as material here:
'It is specifically agreed and understood, and it is the intent of the parties that Hans Pfeiffer shall acquire No equity . . . in 'The Hoods' or the equipment, fixtures, etc., threin (sic) contained until and unless all of the terms of this offer have been consummated in full . . ..' (emphasis added)
The same parties also entered into a management contract which is not a part of the record. Shortly thereafter it was discovered that Pfeiffer, a resident alien, was statutorily ineligible to obtain a liquor license, and the license was therefore obtained by Hudson. Hudson held the license during the nine months that Pfeiffer operated The Hoods and claimant worked as bookkeeper and office manager and was compensated for her services. The business was subsequently sold by Hudson to a third party. The manager of the shopping center prepared the final quarterly report for the business and listed claimant as an employee of The Hoods, even though claimant had not shown herself as an employee on reports she completed while office manager.
Upon investigation of claimant's application for benefits, the Division of Employment entered an award, and Hudson appealed the award requesting determination of the dispute by a referee.
A hearing was held in Colorado Springs at which Hudson as well as an employee of the Division presented evidence. Claimant had previously submitted a written statement regarding the circumstances surrounding operation of The Hoods and the termination of her services to the restaurant. On the basis of the testimony, exhibits, and claimant's written statements, the referee entered findings of fact and concluded that Hudson was the employing unit, that claimant's services constituted employment, and that the circumstances of her separation entitled her to a full award of benefits pursuant to 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(b). Hudson petitioned the Commission for review, and the referee's findings and award were adopted and affirmed.
In this review, Hudson first contends that the Commission erred in determining that he was the employing unit. In support thereof, Hudson urges: (1) That the referee and Commission acted without jurisdiction in allegedly interpreting the Colorado Liquor Code, 1969 Perm.Supp., C.R.S.1963, 75--2--15(8), by finding that Hudson had exclusive management and control of The Hoods, and (2) that there is no substantial evidence showing that Hudson either had or attempted to exercise control over the claimant and hence no employment relationship existed. We disagree with both contentions.
1969 Perm.Supp., C.R.S.1963, 75--2--15(8), provides:
'The purpose and intent of the provisions of this section is to prohibit and prevent the Control of the outlets for the sale of alcoholic beverages defined in this article by any persons or parties other than the licensee licensed under the provisions of this article.' (emphasis added)
The Commission took cognizance of the fact that, in order to comply with this statute, the licensee must have the ability to exercise exclusive control and management of The Hoods. The Commission may properly consider ownership of the license and the duty of control imposed by the statute as evidence.
Considering that Pfeiffer was unable to acquire any equity in The Hoods pursuant to the conditional sales contract for six and one-half years and that legal control vested in Hudson as holder of the liquor license, we hold that there is substantial evidence in the record to support the Commission's finding that Hudson owned The Hoods. Being supported by substantial evidence, these findings are binding on review. Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648. As owner, Hudson must be deemed the employer of the employees of The Hoods. Thus, upon a showing that claimant is entitled to unemployment benefits, Hudson's limited partnership is properly chargeable therefor.
In this regard, it is not disputed that claimant performed services for The Hoods and that she was compensated therefor. The fact that claimant's husband managed The Hoods and engaged the services of claimant does not change claimant's status as an employee. Since claimant's services were performed for The Hoods and since Hudson had the right to direct and control those services, her status relative to the limited partnership is controlled by C.R.S.1963, 82--1--3(4), as follows:
'Each individual employed to perform or to assist in performing the work of any agent or employee of a employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work.'
There is no substantial evidence to support Hudson's suggestion that claimant was an independent contractor.
Hudson finally asserts that the Commission erred in finding that claimant was entitled to a full award under 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(b), based on his testimony that, in the presence of claimant's husband, the subsequent purchasers offered to retain claimant as an employee of The Hoods. Hudson's testimony and the claimant's written statements are in conflict as to the reason for the sale and whether claimant, through her husband, was offered continued employment. The Commission found no evidence in the record that claimant actually received an offer of continuing employment. The Commission was not bound by Hudson's testimony, though not specifically contradicted by other sworn testimony, See Industrial Commission v. Bennett, Supra, Order affirmed.
COYTE and STERNBERG, JJ., concur.