Bosco et al v. Tampa Food & Beverage, LLC
Filing
30
ORDER ATTACHED denying 21 Motion for Partial Summary Judgment. Signed by Judge Richard A. Lazzara on 1/3/2013. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK BOSCO,
Plaintiff,
v.
CASE NO: 8:11-cv-1651-T-26AEP
TAMPA FOOD & BEVERAGE, LLC, d/b/a
The Penthouse Club,
Defendant.
/
ORDER
Before the Court is Plaintiff’s Motion for Partial Summary Judgment and
Statement of Undisputed Facts (Dkts. 21 & 22), Defendant’s Objection to Plaintiff’s
Undisputed Facts (Dkt. 24), and Defendant’s Response (Dkt. 26). After careful
consideration of the arguments and the file, the Court concludes there are just enough
disputed material facts to avoid entering partial summary judgment.
Some facts are not in dispute. Plaintiff worked as a disc jockey (DJ) at the
Penthouse Club from August 2009 to November 2010. Defendant considered Plaintiff an
independent contractor and readily admits that it did not pay Plaintiff an hourly wage or
any direct wage.1 Plaintiff’s source of income came from the dancers who each paid him
1
See docket 26, Request for Admissions, nos. 4 & 5; docket 22-1 at p. 10.
Defendant also considered the dancers to be independent contractors. See docket 22-1 at
$10 or 10 % of their tips, whichever is greater, for the evening.2 Plaintiff was then
required to pay a tip-out to Defendant— the amount changed depending on the day of the
week.3 The only equipment used and owned by Plaintiff was his laptop.4 The club
provided the speakers and sound system.5 Plaintiff signed an independent contractor
agreement with Defendant.
APPLICABLE LAW
In viewing the facts for purposes of this motion for partial summary judgment, the
Court must draw all reasonable inferences in the light most favorable to the non-moving
party, the Defendant. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993,
8 L. Ed. 2d 176 (1962); Welch v. Celotex, 951 F.2d 1235, 1237 (11th Cir. 1992). With
respect to determining whether an individual is an employee or an independent contractor,
the Eleventh Circuit employs a six-factor test . See Freund v. Hi-Tech Satellite, Inc., 185
Fed. App’x 782, 782-83 (11th Cir. 2006) (unpublished opinion); Parilla v. Allcom Constr.
p. 18.
2
See docket 26, Interrogatory No. 2; docket 22-1 at p. 10
3
See docket 22-1 at p. 21. Defendant disagrees that the terms of the disc
jockeys’ compensation was dictated, but rather the disc jockeys could negotiate their rate
of pay.
4
See docket 22-1 at p. 15.
5
See docket 22-1 at p.15.
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& Installation Servs., LLC, 2009 WL 2868432, at *2 (M.D. Fla. 2009). The factors are as
follows:
(1) the nature and degree of the alleged employer’s control as
to the manner in which the work is to be performed;
(2) the alleged employee’s opportunity for profit or loss
depending upon his managerial skill;
(3) the alleged employee’s investment in equipment or
materials required for his task, or his employment of workers;
(4) whether the service rendered requires a special skill;
(5) the degree of permanency and duration of the working
relationship; and
(6) the extent to which the service rendered is an integral part
of the alleged employer’s business.
Many federal courts have construed arrangements between nightclubs and dancers
and usually found that the dancers were employees as opposed to independent
contractors. See Harrell v. Diamond A Entm’t, Inc., 992 F.Supp. 1343, 1347-48 (M.D.
Fla. 1997) (noting that Eleventh Circuit had not addressed the issue).6 The issue of
6
Other cases cited by Plaintiff support a finding that nude or exotic dancers at
nightclubs are employees as opposed to independent contractors. See Reich v. Circle C.
Invest., Inc., 998 F.2d 324 (5th Cir. 1993) (holding that topless dancers are employees
under the FLSA); Thornton v. Crazy Horse, Inc., 2012 WL 2175753 (D. Alaska 2012)
(finding that dancers at an adult establishment were employees); Thompson v. Linda and
A. Inc., 779 F. Supp. 2d 139 (D.D.C. 2011) (finding that exotic dancers were employees
on summary judgment); Clincy v. Galardi South Enters., Inc., 808 F. Supp. 2d 1326 (N.D.
Ga. 2011) (finding that exotic dancers were employees on summary judgment); Morse v.
Mer Corp., 2010 WL 2346334 (S.D. Ind. 2010) (finding exotic dancers were employees
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whether a disc jockey who is tipped by the dancers is an employee or independent
contractor in adult entertainment clubs, however, has not been determined. See Johnson
v. VCG Holding Corp., 845 F. Supp. 2d 353, 379 n. 66 (D. Me. 2012) (noting that Clincy
v. Galardi South Enterprises, Inc., 808 F. Supp. 2d 1326 (N.D. Ga. 2011), “only
addressed whether the dancers were independent contractors or employees and did not
reach the DJ question presented here.”).
ANALYSIS
Defendant objects to some of the facts asserted by Plaintiff in that they are
unsupported by the record or irrelevant to the determination of whether Plaintiff is an
employee or independent contractor. The Court has reviewed those contentions and finds
them noteworthy; however, the main thrust of Defendant’s articulated objection is that
Plaintiff signed an independent contractor’s agreement with Defendant.7 Although
Plaintiff has not addressed the specific terms of the agreement,8 it is clear that by its own
terms, Defendant is not permitted to either take control over the performances of the disc
jockey or take any portion of Plaintiff’s tips from customers. Whether the dancers are
on summary judgment).
7
The mere fact that an independent contractor’s agreement was executed does not
necessarily mean that such a relationship existed between the Plaintiff and Defendant for
purposes of the FLSA. See Wilson v. Guardian Angel Nursing, Inc., 2008 WL 2944661,
at *11 (M.D. Tenn. 2008).
8
Presumably Plaintiff did not have a copy of the agreement until the response
was filed. See docket 21 p. 6 n. 3 “Defendant has been unable to find or produce a copy
of the alleged independent contractor agreement.”
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considered customers has not been determined, and there is no case that analyzes the
particular factual scenario here where dancers who receive tips from customers are giving
a portion of those tips to the disc jockeys. Johnson, 845 F. Supp. 2d at 379 n. 66.
Drawing all reasonable inferences in favor of the Defendant as the non-moving party, the
Court finds that some of the material factual issues necessary to analyze the economic
realities test under the FLSA, which is a matter of law to be determined by the Court,9 are
best left for further development at a trial.
It is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial
Summary Judgment (Dkt. 21) is DENIED.
DONE AND ORDERED at Tampa, Florida, on January 3, 2013.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
9
See Diaz v. U.S. Century Bank, Int’l Risk Response, Inc., 2012 WL 2514906, at
* 1 (S.D. Fla. 2012); Goodrich v. Covelli Family Ltd. P’ship, 2012 WL 921493, at * 2
(M.D. Fla. 2012).
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