2013-313, Appeal of Niadni, Inc. d/b/a Indian Head Resort Motel

(New Hampshire Department of Employment Security)

d/b/a Indian Head Resort Motel (the resort), who was entitled to

No. 2013-313 Department of Employment Security

THE SUPREME COURT OF NEW HAMPSHIRE respondent, Norman Coulombe, was an employee of the petitioner, Niadni, Inc.

Employment Security (DES) Appellate Board (board) decision that the page is: http://www.courts.state.nh.us/supreme. HICKS, J. This is an appeal of the New Hampshire Department of a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 New Hampshire Lodging & Restaurant Association, as amicus curiae. Vrountas and Adam J. Chandler on the brief, and Mr. Vrountas orally), for the Vrountas, Ayer & Chandler, P.C., of Manchester (Christopher T.

Coulombe. Mattson on the brief, and Mr. Feltes orally), for the respondent, Norman New Hampshire Legal Assistance, of Concord (Daniel Feltes and Sarah

to press. Errors may be reported by E-mail at the following address: on the brief and orally), for the petitioner. Sheehan Phinney Bass + Green, P.A., of Manchester (Elizabeth A. Bailey

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as board to affirm the tribunal’s decision; (2) the tribunal’s decision was legally

p. 2 On appeal, the resort argues that: (1) RSA 282-A:65 (2010) required the

subsequent motion to reconsider, and this appeal followed. unemployment benefits to Coulombe. The board denied the resort’s

coordination of entertainment services. Accordingly, the board awarded

erroneous because it drew a “distinction without substance” regarding the appeal, but upon reconsideration, ruled that the tribunal’s decision was Coulombe then appealed to the board. The board initially denied the

reconsideration was denied. instruments, or other forms of entertainment.” Coulombe’s request for entertainment, which it distinguished from “the business of singing, playing

the resort is in the business of, among other things, “coordinating”

contained in RSA 282-A:9, III (2010). Specifically, the tribunal concluded that

Coulombe “did not provide services in employment” under the exception Appeal Tribunal (tribunal). Following a hearing, the tribunal concluded that unemployment benefits. The resort appealed this determination to the DES

On July 19, 2012, DES determined that Coulombe was eligible for

benefits with DES. which the relationship terminated. He subsequently filed for unemployment

reported that his last booking with the resort occurred on June 2, 2012, after

perform new material prior to the end of his relationship with the resort. He the songs he would play in his performances, though the resort asked him to weekly for his performances. He provided his own instruments and selected

Coulombe negotiated a pay rate for Coulombe’s services, and he was paid

hundred times in the last two years that he worked there. The resort and

at other venues but testified that he performed at the resort nearly three and group performances beginning in approximately 1980. He also performed Coulombe appeared as a musical entertainer at the resort in both solo

optional lodging are provided to entertainers. 2009, featuring approximately fifty entertainers during that year. Meals and and flyers, and explained that the resort spent $120,000 on entertainment in

advertises upcoming entertainment in local newspapers, online promotions,

percent of the nights that it is open. He further testified that the resort rooms, [and] entertainment,” which offers live entertainment on sixty to seventy testified that his enterprise is a “resort type business” with “a restaurant,

public address system. Peter Spanos, the president and owner of the resort,

Live entertainment is offered in a function room that features both a stage and The record supports the following facts. The resort is located in Lincoln.

2013). We affirm. unemployment compensation benefits under RSA chapter 282-A (2010 & Supp. p. 3 Appeal of N.H. Sweepstakes Commission, 130 N.H. at 662; see RSA 282-A:67, as to the weight of the evidence on questions of fact for that of the tribunal. by the board, is confined to the record, and we cannot substitute our judgment

Judicial review of tribunal decisions, as reversed, modified, or affirmed

Otherwise, the appellate board shall affirm the order.

tribunal. which case the appeal shall be remanded to the appeal

reasonable search at the time of the first level hearing, in

which was not available to the affected party upon

V. Affected by the absence of newly discovered evidence,

IV. Affected by fraud; or

III. Affected by reversible error of law; or

employment security; or

II. In excess of the statutory authority of the department of

I. In violation of constitutional or statutory provisions; or

circumstances. p. 3 Appeal of N.H. Sweepstakes Commission, 130 N.H. 659, 662

the findings, inferences, conclusions, or the decision is:

circumstances.

RSA 282-A:65 permits the board to reverse the tribunal only in certain

substantial rights of the appellant had been prejudiced because Coulombe.

II (2010). We may reverse or modify the tribunal’s decision only in limited

the decision or remand the case for further proceedings only if the with RSA chapter 282-A’s remedial purpose to help unemployed workers like of the determination. The appellate board shall reverse or modify evidence on questions of fact, or as to the prudence or desirability

of business under RSA 282-A:9, III(b); and (2) the board’s order is consistent Coulombe’s entertainment services in particular, were outside its usual course the commissioner or appeal tribunal as to the weight of the the resort failed to prove that entertainment services in general, and

The appellate board shall not substitute its judgment for that of undermines, the purpose of” RSA chapter 282-A. Coulombe responds that: (1) and factually correct; and (3) the board’s order is “inconsistent with, and (1988). The statute provides: establish that all three requirements for exclusion have been satisfied; failure

p. 4 “The burden is on the party challenging an ‘employment’ determination to

established trade, occupation, profession, or business. (c) Such individual is customarily engaged in an independently

the definition of “employment.” See Appeal of Aspen Contracting NE, 164 N.H.

exemption provided in RSA 282-A:9, III, which excludes certain workers from

enterprise for which such service is performed; and service is performed outside of all the places of business of the business for which such service is performed or that such

The resort challenges Coulombe’s employment status based upon the

Otherwise, the court shall affirm the appeal tribunal’s decision.

(e) Affected by other error of law.

(b) Such service is either outside the usual course of the

whole record; or

under his contract of service and in fact; and control or direction over the performance of such services, both

(d) Clearly erroneous in view of the substantial evidence on the

(c) Made upon unlawful procedures; (a) Such individual has been and will continue to be free from

employment security that: to the satisfaction of the commissioner of the department of be employment subject to this chapter unless and until it is shown

(b) In excess of statutory authority;

(a) In violation of constitutional or statutory provisions;

Services performed by an individual for wages shall be deemed to

inferences, or conclusions are: appellant had been prejudiced because the administrative findings, 88, 89 (2012). Under RSA 282-A:9, III: determined by the court, only if the substantial rights of the

tribunal, or remand the case for further proceedings, as The court shall reverse or modify the decision of the appeal p. 5 See Carpet Remnant Warehouse v. Dept of Labor, 593 A.2d 1177, 1186 (N.J.

“Outside the usual course of the business” can be an elusive concept.

business. whether Coulombe’s services were outside the resort’s usual course of

needs to show only one of the two alternatives.” Sinclair Builders v. constitute part of the enterprise’s usual course of business irrespective of its

Mattatuck Museum, the court examined a statutory provision similar to RSA We find the Supreme Court of Connecticut’s approach most useful. In

Appeal of Stewart, 164 N.H. 772, 775 (2013) (quotation omitted). RSA 282-A:9, such service is performed.” RSA 282-A:9, III(b). Therefore, we focus on and not in isolation. A:9, III(b). See, e.g., Mattatuck Museum v. Unemployment Comp., 679 A.2d

RSA 282-A:9, III(b). The provision is “disjunctive, meaning that the employer as an isolated instance but as a regular or continuous practice, the activity will the places of business of the enterprise for which such service is performed.” 282-A:9, III(b), and held that “[i]f . . . an enterprise undertakes an activity, not which such service is performed” or when a service is “performed outside of all

Bigfoot’s, Inc. v. Bd. of Rev. of Indus. Com’n, 710 P.2d 180, 181 (Utah 1985). 235 N.E.2d 871, 875 (Ill. App. Ct. 1968); Sinclair Builders, 73 A.3d at 1067; entertainment “outside of all the places of business of the enterprise for which 347, 351 (Conn. 1996); Yurs v. Director of Labor, Dep’t of Labor, Div. of U.C., we interpret statutes in the context of the overall statutory scheme courts have done so with regard to statutory provisions analogous to RSA 282adopted a general standard as to the meaning of this phrase, but several other 1991) (interpreting similar provision in New Jersey statute). We have not

employment: when a service is “outside the usual course of the business for

Maine statutory provision). Neither party argues that Coulombe provided Unemployment Ins., 73 A.3d 1061, 1067 (Me. 2013) (interpreting identical is ambiguous, we need not look to legislative intent. Furthermore, and ordinary meaning. Unless we find that the statutory language itself, and, if possible, construe that language according to its plain

III(b) sets forth two circumstances under which a service will not be considered Statutory interpretation is a question of law that we review de

chapter 282-A.” Appeal of Aspen Contracting NE, 164 N.H. at 91 (quotation to establish any of them is conclusive proof of employment for purposes of RSA

interpreting a statute, we first look to the language of the statute expressed in the words of a statute considered as a whole. In novo. We are the final arbiter of the intent of the legislature as

This appeal hinges upon the meaning of RSA 282-A:9, III(b).

omitted). to attract patrons to the resort. Cf. Bigfoot’s, Inc., 710 P.2d at 181 (“Since it

p. 6 system, to facilitate live entertainment, and advertises upcoming performances

the resort maintains various amenities, including a stage and public address entertainment. In addition to the regularity of live entertainment noted above, substance” in this case. The resort does not merely coordinate live

the [resort] lounge.” We agree with the board that this is a “distinction without

coordinates scheduling independent musicians such as Coulombe to play in band or a group of musicians or singers,” and, “at most, [the resort] course of business because it “does not itself provide live music and it is not a

course of the business.’”). The resort also argues that Coulombe’s services are not within its usual

“ambience.” The resort relies upon Unemployment Compensation Commission not turn on whether the business enterprises are identical or analogous. performances at the resort. See id. Spanos testified that the resort offers live failing to appreciate that Coulombe’s services merely contributed to the resort’s and as part of its allure to guests.” We are not persuaded by this distinction, for our analysis does continuous presence of live entertainment and, more specifically, Coulombe’s Nor are we persuaded by the resort’s suggestion that the board erred by also featured scenic attractions, dining and other family-friendly activities as part of its business facility” and “[t]here was no evidence referenced in the Bigfoot’s, Inc. case that the beer hall owner Bigfoot’s, Inc. operated a beer bar and not a diverse family-oriented resort such as [the resort’s] The resort further argues that Bigfoot’s, Inc. is distinguishable because “[t]he employer in * with its operations, the employment of musicians . . . was within the ‘usual

restaurant and reasoned: of Wyoming assessed the employment status of musicians performing in a v. Mathews, 111 P.2d 111, 119 (Wyo. 1941). In that case, the Supreme Court

these other amenities and services, however, does not negate the regular and

was usual and customary for the hotel to furnish entertainment in connection the resort. had nearly three hundred bookings in the last two years that he performed at frequent basis. He appeared at the resort for approximately thirty years and

related live entertainment are not essential to its business. The availability of sporting activities, and scenic locations – to argue that the lounge and its The resort emphasizes its other amenities – including lodging, outdoor

Moreover, Coulombe’s particular services were provided on a regular and entertainment on sixty to seventy percent of the nights that it is open. Mattatuck Museum, 679 A.2d at 351. We adopt this standard and conclude substantiality in relation to the other activities engaged in by the enterprise.”

continuously provided at the resort. See id. within the resort’s usual course of business because they were regularly and that Coulombe’s services – and, more generally, live entertainment – were own.” Appeal of Aspen Contracting NE, 164 N.H. at 90 (quotation and brackets p. 7 those workers who are involuntarily unemployed through no fault of their 282-A, is to prevent the spread of unemployment and to lighten the burden on

“The purpose of our unemployment compensation statute, RSA chapter

jeopardize the employment prospects of independent musical artists. New Hampshire businesses to refrain from hiring those individuals and thus

business. Cf. Sinclair Builders, 73 A.3d at 1067 (“In order to demonstrate that “mischaracterization” of singers and musicians as employees could encourage services were not incidental to, but rather were an integral part of, the resort’s

offer assistance to such individuals. The resort further asserts that the musical acts. Under these circumstances, we conclude that Coulombe’s

whole group of independent musical artists out of work” is equally

entities, and that the unemployment compensation statute was not designed to several advertisements featuring Coulombe’s likeness and the name of his an independent contractor who was free to perform, and did perform, for other purpose of RSA chapter 282-A. Specifically, the resort argues that Coulombe is

legal restrictions and financial obligations” on businesses and thus “place a purpose. The resort’s argument that such a decision will impose “significant Id. The resort cites this language in its brief and, at oral argument, analogized purposes of RSA chapter 282-A, our conclusion is not contrary to the statute’s not. testified that the business provides “entertainment.” The record includes were used to attract new business to the resort, whose president and owner Finally, the resort contends that the board’s order undermines the resort’s business. Rather than creating mere “ambience,” Coulombe’s services

omitted). Because we have determined that Coulombe was an employee for the employed by him employees of the owner? We are inclined to think

This argument ignores the significance of Coulombe’s services to the omitted)). employer’s business, but is rather merely incidental to it.” (quotations

supply it in the restaurant rooms. Are the florist and those owner’s guests as does music played by those who can be hired to business? Flowers on the restaurant tables give pleasure to the

rather a part of the resort’s “ambience.” the employer must show that the service is not an integral part of the that live entertainment is not in the resort’s usual course of business but an individual’s services are not within the employer’s usual course of business,

his tables, is that a service within the “usual course” of the owner's If a restaurant owner contracts with a florist to supply flowers for

Coulombe’s performances to these decorative “floral arrangements” to argue p. 8 8

requirements set forth in RSA 2 p. 8 82-A:9, III(a) and (c). See id.; cf. Appeal of

2 p. 8 82-A:9, III(b), we need not consider whether it satisfied the two remaining

Because the resort has failed to demonstrate that it meets the test of RSA

case.

Affirmed.

an employee under RSA chapter 2 p. 8 82-A turns upon the unique facts of each DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred. unpersuasive because the determination of whether a particular entertainer is

Work-a-Day of Nashua, 132 N.H. 2 p. 8 89, 293 (1989).