Vogue v. Administrator, Unemployment Compensation Act

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 VOGUE v. ADMINISTRATOR, UNEMPLOYMENT
COMPENSATION ACT
(AC 42845)
Bright, C. J., and Cradle and Suarez, Js.

Syllabus

The plaintiff appealed to the trial court from the decision of the Employment
Security Board of Review affirming the decision of an appeals referee
of the Employment Security Appeals Division that the plaintiff was liable
for certain unpaid unemployment compensation contributions under
the Unemployment Compensation Act (§ 31-222 et seq.). The plaintiff
sold jewelry and provided body piercing and tattoo services in its store
at a shopping mall. The plaintiff and S, a tattoo artist, entered into an
agreement under which the plaintiff would receive one half of S’s fees
for tattoo services that S would sell from a room in the plaintiff’s store.
An audit by the defendant Administrator of the Unemployment Compen-
sation Act thereafter determined that S was an employee of the plaintiff,
rather than an independent contractor, as the plaintiff had claimed. The
appeals referee found, inter alia, that S did not pay rent to the plaintiff
for the room, that S performed tattoo services only during store hours,
and that the plaintiff advertised on its website and Facebook page that
customers could have tattoos done at its store. The board determined
that the plaintiff failed to satisfy any of the three requirements of the
ABC test, as set forth in § 31-222 (a) (1) (B) (ii) (I), (II) and (III),
which governs the determination of whether services performed by an
individual constitute employment under the act. On appeal from the
appeals referee’s decision that affirmed the defendant’s determination,
the board reasoned that, under part B of the ABC test in § 31-222 (a)
(1) (B) (ii) (II), S’s tattoo services were not performed outside of the
plaintiff’s usual course of the business or outside of the place of its
business, and that S’s tattoo services were an integral part of the plain-
tiff’s business enterprise. After the plaintiff appealed to the trial court,
the board denied in part a motion the plaintiff filed to correct certain
of the appeals referee’s findings of fact. The defendant then filed a
motion for judgment in which it asserted that the plaintiff had failed to
prove that S was not an employee pursuant to the act. The court agreed
with the board that the plaintiff failed to satisfy part B of the ABC test,
and granted the defendant’s motion and rendered judgment dismissing
the plaintiff’s appeal. The court rejected the plaintiff’s claim that the
board’s findings were improper and concluded that the board properly
determined that the plaintiff failed to satisfy part B of the ABC test.
Held that the trial court properly dismissed the plaintiff’s appeal, as the
board and the court properly applied part B of the ABC test in § 31-222
(a) (1) (B) (ii) (II) to the plaintiff’s employment relationship with S: the
record contained substantial evidence for the court and the board to
have determined that S’s provision of tattoo services was within the
plaintiff’s usual course of business and a regular part of its business
enterprise, the board’s conclusion that S’s services were an integral part
of the plaintiff’s business and that tattoo customers were part of its
customer base was strongly supported by the board’s findings that the
plaintiff, at no cost to S, provided S with a workspace and permitted
him to use its credit card machine to collect payments, and the plaintiff’s
advertisements reflected that the plaintiff portrayed itself to the public
as a seller of tattoo services that were offered during the hours in which
the plaintiff’s store was open for business; moreover, the only income S
earned was derived from the tattoo services he provided in the plaintiff’s
store, the plaintiff required tattoo customers to sign a waiver of liability
as to the plaintiff and S, and, contrary to the plaintiff’s claim that the
board and the court focused solely on the plaintiff’s advertisements and
not on other findings that did not support the board’s determination,
the board and the court indicated that their decisions were made after
a review of the entire record.
 Argued September 16, 2020—officially released January 19, 2021

Procedural History

Appeal from the decision of the Employment Security
Board of Review affirming the decision of an appeals
referee of the Employment Security Appeals Division
that the plaintiff was liable for certain unpaid unemploy-
ment compensation contributions, brought to the Supe-
rior Court in the judicial district of New London; there-
after, the Employment Security Board of Review denied
in part the plaintiff’s motion to correct; subsequently, the
plaintiff filed an amended appeal with the trial court;
thereafter, the court, S. Murphy, J., affirmed the Employ-
ment Security Board of Review’s denial in part of the
plaintiff’s motion to correct, granted the defendant’s
motion to dismiss and rendered judgment dismissing
the appeal, from which the plaintiff appealed to this
court. Affirmed.
Santa Mendoza, for the appellant (plaintiff).
Krista D. O’Brien, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Philip M. Schulz, assistant attorney general,
for the appellee (defendant).
 Opinion

SUAREZ, J. The plaintiff, Vogue, appeals from the
judgment of the trial court, rendered in favor of the
defendant, the Administrator of the Unemployment
Compensation Act, dismissing the plaintiff’s appeal
from the decision of the Board of Review of the Employ-
ment Security Appeals Division (board).1 The board
had affirmed the decision of an appeals referee of the
Employment Security Appeals Division (appeals divi-
sion), who had affirmed the decision made by the defen-
dant, following an audit of the plaintiff, that the plaintiff
was liable for unpaid unemployment compensation con-
tributions under the Unemployment Compensation Act
(act), General Statutes § 31-222 et seq., with respect to
one of its employees. The primary issue in this appeal
is whether the court improperly interpreted and applied
part B of the so-called ‘‘ABC test’’ of the act, which
governs whether an employment relationship exists for
purposes of the act.2 We affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory underlie the present appeal. The plaintiff leases
retail space in an indoor shopping mall in Waterford.
It sells, among other things, body jewelry and body
piercing services. In 2013, the plaintiff entered into an
agreement with an individual, Mark Sapia, whereby, in
exchange for a portion of Sapia’s profits, Sapia would
sell tattoo services from the rear portion of the plain-
tiff’s store. On March 11, 2016, after one of the defen-
dant’s field officers conducted an audit of the plaintiff’s
business for 2014 and 2015, the defendant concluded
that Sapia was an employee of the plaintiff, not an
independent contractor as the plaintiff had maintained.
Consequently, the defendant reclassified payments
made to Sapia in 2014 and 2015 by the plaintiff as wages,
and, with respect to those wages, the plaintiff was liable
for the payment of contributions required under the
act. The defendant, however, did not conclude that the
plaintiff wilfully had failed to report Sapia as an
employee.
In March, 2016, the plaintiff appealed from the defen-
dant’s decision to the appeals division. On August 15,
2016, an appeals referee conducted an evidentiary hear-
ing. In a memorandum of decision dated September 2,
2016, the appeals referee set forth several findings of
fact. After discussing relevant legal principles, the
appeals referee concluded that the defendant properly
had determined that Sapia was an employee of the
plaintiff, not an independent contractor. Thus, the
appeals referee affirmed the defendant’s decision and
dismissed the plaintiff’s appeal.
The appeals referee’s findings were as follows: ‘‘(1)
[Sapia] worked as a tattoo artist at [the plaintiff’s store]
from approximately 2013 through the time of the audit.
Sapia himself personally performs the tattoo services
for the customers at [the plaintiff’s store]. The owner
of [the plaintiff] classified Sapia as an independent con-
tractor when the company was [completing] a registra-
tion form with the [defendant].
‘‘(2) Based on that information, the [defendant] con-
ducted an audit of [the plaintiff] and checked its payroll
records and the status of individuals working for that
company. [The plaintiff] had four employees working
for the company, not including the owner or [Sapia].
‘‘(3) When Sapia began working for [the plaintiff], the
parties agreed that when [Sapia] tattooed the customer,
Sapia would get 50 percent of the sales price and the
owner would get the other 50 percent. Sapia was
allowed to use the credit card machine for [the plain-
tiff’s store] when selling his tattoo services. Sapia did
not have to pay to use that credit card machine. The
owner would then give Sapia his percent[age] of the
credit card sales once those transactions were approved
by the credit card company. [The plaintiff] had a back
room in the store where Sapia was to perform his tattoo
work on the customers. The price of the tattoo was
determined by Sapia.
‘‘(4) The owner also had Sapia sign an agreement
when they started working together, which indicated
that Sapia was an independent contractor, outlined the
payment arrangements, and allowed the owner to
review or check the work performed by Sapia. That
agreement also stated that [Sapia] was responsible for
correcting any mistakes with the tattoos and that [the
plaintiff] could deduct moneys from Sapia if a customer
complaint was not resolved.
‘‘(5) Although the agreement also required that Sapia
carry his own business liability insurance, Sapia did not
do so, which the owner knew.
‘‘(6) The owner provided Sapia with a sterile environ-
ment at the store where [the plaintiff] is located for
him to perform his tattoo services for the general public.
Sapia is registered with the state of Connecticut as a
tattoo technician, and when he is placing the tattoos on
the customers, he must do so in a sterile environment.
‘‘(7) Sapia did provide his own ink and needles in
order to place the tattoos on the customers he serviced
at [the plaintiff’s store]. Sapia also used his own laptop
for his work.
‘‘(8) [The plaintiff] keeps track of all of the tattoo
sales made by Sapia when he is working in the store.
When a customer paid for the tattoo in cash, then Sapia
would keep 50 percent of the sale for himself and turn
over the other 50 percent to the owner. The owner did
not pay any other moneys to Sapia in 2014 and 2015.
Sapia only performed his tattoo services during the
store hours established by [the plaintiff] because the
owner did not issue a store key to Sapia, who could
not access the store on his own.
‘‘(9) When Sapia sold a tattoo and applied the tattoo
on the customer, the customer received a receipt, which
listed the business name of the [plaintiff] company,
Vogue, as well as the phone number, address and web-
site for [the plaintiff company] Vogue. The [plaintiff’s]
owner also required that Sapia have the customers sign
a waiver/release form, which was an agreement
between [the plaintiff] and the customer, to release both
[the plaintiff] and Sapia from various types of liability.
‘‘(10) [The plaintiff] is in the business of providing
piercings, selling jewelry for the piercing, and offering
tattoo services. [The plaintiff] advertises through its
website and its Facebook page that a customer can
have piercings or tattoos done at its store and lists the
hours that the tattoo artist is in the store.
‘‘(11) [The plaintiff] provides a back room in the store
where Sapia is able to perform his tattoo services for
the customers of [the plaintiff]. [The plaintiff] also pro-
vides a table, chairs, and cleaning supplies for that
room.
‘‘(12) Sapia does not have to submit an invoice to
[the plaintiff] in order to be paid his 50 percent of the
tattoo services that he provides to the customers at
[the plaintiff’s store]. Sapia does not pay any rent to
[the plaintiff] to use the employer’s sterile room to
perform his services, and all advertisements are done by
[the plaintiff], other than [Sapia] mentioning his tattoo
services on his social media sites, which also include
the contact information at [the plaintiff’s store].
‘‘(13) The [plaintiff’s] owner was not aware of any
insurance or other paperwork to show that Sapia had
established his own business or that he had his own
company [that] offered tattoo services to the general
public.
‘‘(14) When the field auditor [for the defendant] con-
ducted the audit, the only income reported by Sapia
was the moneys that he received from [the plaintiff].’’
In September, 2016, the plaintiff appealed from the
decision of the appeals referee to the board. In a memo-
randum of decision dated January 19, 2017, the board
expressly adopted the findings of fact of the appeals
referee without modification, with the exception of the
tenth finding of fact, to which the board added the
following finding: ‘‘Sapia is the only tattoo artist per-
forming tattoo services for the [plaintiff].’’
Like the appeals referee, the board stated that its
analysis of whether Sapia was an employee for purposes
of the act was governed by the ABC test that is codified
at General Statutes § 31-222 (a) (1) (B) (ii) (I), (II) and
(III), with parts A, B, and C of the test corresponding
to clauses (I), (II) and (III), respectively, of the statute.
Section 31-222 (a) (1) (B) (ii) defines ‘‘ ‘[e]mployment’ ’’
in relevant part as any service performed by ‘‘any indi-
vidual who, under either common law rules applicable
in determining the employer-employee relationship or
under the provisions of this subsection, has the status
of an employee. Service performed by an individual
shall be deemed to be employment subject to this chap-
ter irrespective of whether the common law relation-
ship of master and servant exists, unless and until it is
shown to the satisfaction of the administrator that (I)
such individual has been and will continue to be free
from control and direction in connection with the per-
formance of such service, both under his contract for
the performance of service and in fact; and (II) such
service is performed either outside the usual course of
the business for which the service is performed or is
performed outside of all the places of business of the
enterprise for which the service is performed; and (III)
such individual is customarily engaged in an indepen-
dently established trade, occupation, profession or busi-
ness of the same nature as that involved in the service
performed . . . .’’ In light of the fact that the ABC test
is written in the conjunctive, ‘‘unless the party claiming
the exception to the rule that service is employment
shows that all three prongs of the test have been met,
an employment relationship will be found.’’ JSF Promo-
tions, Inc. v. Administrator, Unemployment Compen-
sation Act, 265 Conn. 413, 419, 828 A.2d 609 (2003).
The board addressed whether the plaintiff, which
claimed that the services provided by Sapia did not
constitute employment for purposes of the act, had
satisfied its burden of demonstrating that all three
prongs of the test were satisfied. The board determined
that the plaintiff had failed to satisfy all three prongs
of the ABC test. We focus on the board’s analysis under
part B because that portion of the board’s analysis is
dispositive of the plaintiff’s claim on appeal. As set forth
previously, pursuant to part B, service is deemed to be
employment unless and until it is shown that ‘‘such
service is performed either outside the usual course of
the business for which the service is performed or is
performed outside of all the places of business of the
enterprise for which the service is performed . . . .’’
General Statutes § 31-222 (a) (1) (B) (ii) (II).3
With respect to part B of the test, the board concluded
that Sapia’s service was not performed outside of the
plaintiff’s usual course of the business or the place of
its business. The board stated: ‘‘In the case before us,
the [plaintiff] describes itself on its website as ‘your
one stop destination for body jewelry, stainless steel
jewelry, as well as piercing and tattoo services.’ The
[plaintiff’s] website also advertised that it provided tat-
too services during all open store hours. While we rec-
ognize that Sapia was the only tattoo artist performing
these services on the employer’s behalf, both the [plain-
tiff’s] website and Facebook page describe the company
as ‘Vogue Tattoo and Piercings.’ Therefore, we find that
the services that Sapia provided were integral to the
employer’s business and were not outside its usual
course of business. Sapia also provided his services at
the [plaintiff’s] store and, thus, not ‘outside [of] all [the]
places of business’ for [the plaintiff].’’
Accordingly, the board determined that Sapia was
employed by the plaintiff for purposes of the act and
that the plaintiff was liable for any contributions related
to his wages that were required by the act. The board
affirmed the decision of the appeals referee and dis-
missed the plaintiff’s appeal.
In February, 2017, the plaintiff appealed from the
decision of the board to the trial court in accordance
with General Statutes § 31-249b4 and Practice Book
§ 22-1 et seq. In its appeal, the plaintiff asserted that
several of the board’s findings were not supported by
the evidence and that the board had misapplied relevant
legal principles to the facts of the case. In January,
2018, the plaintiff, pursuant to Practice Book § 22-4,5
filed with the board a motion to correct fourteen of its
findings. In April, 2018, the board issued a memorandum
of decision in which it granted, in part, and denied,
in part, the motion to correct. Before we discuss the
corrected findings, we observe that, to the extent that
it granted the motion, however, the board determined
that its modified findings did not alter its conclusion
that Sapia was an employee of the plaintiff.
The board granted the plaintiff’s request that it cor-
rect finding thirteen to state: ‘‘Sapia advertised his ser-
vices to the general public through social media, includ-
ing his Instagram, Etsy, Facebook, and e-mail. He also
had business cards that advertised his services.’’ The
board stated that this correction did not affect its analy-
sis with respect to part C of the ABC test.
The board granted the plaintiff’s request that it cor-
rect finding twelve to reflect that, ‘‘in addition to [the
plaintiff’s] advertising on its website, Sapia also adver-
tised his own services through social media . . . .’’ The
board stated that this alteration of its finding did not
affect its analysis with respect to part C of the ABC test.
The board granted the plaintiff’s request that it add
the following language to finding eight: ‘‘The [plaintiff’s]
store hours are limited by the mall’s hours of operation,
and Sapia is free to perform his tattoo services any-
where or at any time.’’ The board stated that this correc-
tion did not affect its conclusion with respect to part
C of the ABC test because ‘‘the [plaintiff] was unable
to provide other specific details regarding the tattoo
work that Sapia performed and received compensation
to perform.’’
The board granted the plaintiff’s request that it modify
its decision to add the following finding: ‘‘The [plaintiff]
set aside a designated workspace in its store. Sapia’s
workspace was required to be clean and have no rug.’’
The board stated: ‘‘In the case before us, regardless of
the type of flooring required by the health department,
it is undisputed that Sapia performed his work at the
[plaintiff’s] retail establishment. Thus, he performed
services at the [plaintiff’s] place of business, and this
proposed finding would not alter our conclusion with
regard to part B of the ABC test.’’
The board granted the plaintiff’s request to correct
its decision with respect to Sapia’s activities in the
plaintiff’s store, stating: ‘‘The [plaintiff] permitted Sapia
to create, sell, and display his artwork in the space and
to keep 100 percent of the proceeds that any person
would pay for his art.’’ The board, in concluding that
this alteration of its findings did not affect its analysis
under the ABC test, stated in relevant part: ‘‘The [plain-
tiff] did not provide proof establishing that Sapia, in
fact, sold any pieces of art while he was working in
the [plaintiff’s] store. However, [the plaintiff’s owner]
testified that Sapia creates, displays, and is free to sell
his artwork in the [plaintiff’s] store. . . . Nonetheless,
this corrected finding addresses just one factor that is
weighed in the balancing test for part A, and, thus, the
[plaintiff] has not shown that this correction would alter
the ultimate outcome in this case.’’ (Citation omitted.)
The board granted the plaintiff’s request that it modify
finding seven to include the following language: ‘‘Sapia
owns all of his own intellectual property and stores this
property on his personal laptop.’’ The board stated that
this alteration did not alter its conclusion under part C
of the ABC test.
The board granted the plaintiff’s request that it modify
a portion of the transcript of the hearing before the
appeals referee by adding the following finding: ‘‘Sapia
has the right to find a substitute to come in and perform
tattoo services.’’ The board explained that this finding
did not alter its conclusion under part A of the ABC
test because Sapia’s right to obtain a substitute was
just one of many factors it may consider in its evaluation
of the facts. In sum, despite amending some of its factual
findings, the board maintained its conclusion that the
plaintiff failed to satisfy all three parts of the ABC test.6
In May, 2018, after the board issued its decision with
respect to the plaintiff’s motion to correct, the plaintiff
filed an amended appeal in the trial court. As it did in
its original appeal, the plaintiff argued that the board
had based its decision on erroneous findings and that it
misapplied the law to the facts of the case. The plaintiff
challenged the board’s determination that Sapia was an
employee under parts A, B, and C of the ABC test. The
amended appeal included claims of error related to the
board’s decision on the plaintiff’s motion to correct.7
Thereafter, the defendant filed a motion for judgment
in his favor and an accompanying memorandum of law.
Essentially, the defendant argued therein that the plain-
tiff had failed to prove that Sapia was not an employee
for purposes of the act and that the board had correctly
applied the law to the facts of the case. The plaintiff
filed an objection to the motion for judgment.
In January, 2019, the court heard argument on the
defendant’s motion for judgment and the plaintiff’s
objection thereto. Thereafter, on April 4, 2019, the court
rendered judgment dismissing the appeal. In its memo-
randum of decision, the court first addressed the merits
of that portion of the plaintiff’s amended appeal in
which the plaintiff claimed that the board erred by
denying five of the requests set forth in its motion to
correct. After it rejected the plaintiff’s claim that the
board’s findings were improper and that a remand to
the board for a new hearing was necessary, the court
addressed the claim that the board improperly had inter-
preted and applied the ABC test.
The court focused its analysis on part B of the test,
stating in relevant part: ‘‘The plaintiff . . . challenges
the board’s determination that the plaintiff failed to
meet part B of the ABC test because it failed to establish
that Sapia performed his services outside the usual
course of business. The plaintiff argues that tattoo ser-
vices are not a continuous business with respect to the
plaintiff because [tattoo services are only performed]
when Sapia is physically present. The defendant argues
that the plaintiff’s focus on Sapia’s availability ignores
the definition of usual course of business . . . .
‘‘Part B of the test is stated in the disjunctive. Thus,
the plaintiff bears the burden of establishing either that
the services were outside the usual course of its busi-
ness or that the services were performed outside of its
place of business. The plaintiff need only prove one of
the two in order to satisfy part B of the test. A review
of the pleadings reveals that the plaintiff does not chal-
lenge the board’s finding that the tattoo services pro-
vided by Sapia were [not] outside of its place of busi-
ness. Therefore, the court will only address the
plaintiff’s argument that Sapia performed his services
outside the usual course of [its] business.’’8
After setting forth relevant authority concerning part
B of the ABC test, the court stated: ‘‘In the present case,
the findings of fact made by the referee and adopted
by the board make it clear that the board did not act
unreasonably or arbitrarily in concluding that the provi-
sion of tattoo services was within the plaintiff’s usual
course of business. Substantial evidence exists in the
record for the board to have determined that the provi-
sion of tattoo services was within the plaintiff’s usual
course of business. The plaintiff’s business has offered
tattoo services on a regular and continuous basis. The
record reflects that the plaintiff had hired a tattoo artist
prior to hiring Sapia and that [the plaintiff’s owner]
interviewed several candidates when he advertised the
position of tattoo artist before Sapia began providing
tattoo services at the plaintiff’s store in 2013. The plain-
tiff’s website also advertises tattoo services during all
open store hours. Moreover, the plaintiff held itself out
to the public as providing tattoo services. The board
found that the plaintiff’s website and Facebook page
advertise the company as ‘Vogue Tattoo and Piercings’
and describe the plaintiff’s store as ‘your one stop desti-
nation for body jewelry, stainless steel jewelry, as well
as piercing and tattoo services.’ ’’
Having rejected the plaintiff’s argument that the
board improperly had determined that it failed to satisfy
part B of the ABC test, the court concluded its analysis
by stating: ‘‘Because the three parts of the ABC test are
conjunctive, the inability of the plaintiff to satisfy any
single one of those parts necessarily results in a conclu-
sion that an employer-employee relationship exists for
the purposes of the act. Therefore, in the present case,
because the plaintiff has failed to satisfy part B of the
test, the court deems it unnecessary to consider parts
A or C. . . . The board properly concluded that [the]
plaintiff failed to prove that Sapia was employed as
an independent contractor under the provisions of the
[act].’’ (Citation omitted; footnote omitted.) Accord-
ingly, the court granted the defendant’s motion to dis-
miss the appeal, and this appeal followed.
We now turn to the claim raised on appeal. The plain-
tiff asserts that the board improperly interpreted and
applied part B of the ABC test to the facts of the present
case. We disagree.
Previously in this opinion, we set forth the relevant
language of the ABC test codified in § 31-222 (a) (1)
(B) (ii). As relevant to the present claim, part B defines
‘‘ ‘[e]mployment’ ’’ in relevant part as any service per-
formed by ‘‘any individual who, under either common
law rules applicable in determining the employer-
employee relationship or under the provisions of this
subsection, has the status of an employee. Service per-
formed by an individual shall be deemed to be employ-
ment subject to this chapter irrespective of whether
the common law relationship of master and servant
exists, unless and until it is shown to the satisfaction
of the administrator that . . . (II) such service is per-
formed either outside the usual course of the business
for which the service is performed or is performed
outside of all the places of business of the enterprise
for which the service is performed . . . .’’ General Stat-
utes § 31-222 (a) (1) (B).
The plaintiff argues that the trial court erred in failing
to conclude that the board’s ultimate determination was
unreasonable and illogical in light of the facts of the
present case. According to the plaintiff, the board inter-
preted the phrase ‘‘usual course of the business for
which the service is performed’’ in § 31-222 (a) (1) (B)
(ii) (II) too broadly, concluding that tattoo services are
part of the plaintiff’s usual business, and failed to focus
its analysis properly on the specific business enterprise
in which the plaintiff was engaged, which it claims is
limited to the sale of body jewelry and body piercing
services. The plaintiff argues in relevant part: ‘‘Sapia is
a tattoo artist and is permitted by the plaintiff, pursuant
to a written contract, to operate a tattooing artistry
business within the leased unit that the plaintiff pays
for. The plaintiff and Sapia have not undertaken the
same enterprise. The plaintiff is not a direct provider
of tattooing services. Sapia has his own separate busi-
ness for which he determines the scheduling and the
prices, and which is not integrated in any way with the
plaintiff’s body jewelry piercing business. Sapia is not
paid by the plaintiff to provide services to the plaintiff.
The services are provided by Sapia directly to Sapia’s
tattoo clients who pay Sapia’s remuneration directly to
him after he negotiates the price he wants to charge
for the service.
‘‘The plaintiff’s enterprise and its specific business
activities do not include tattooing people. No one else
is licensed to do so. The plaintiff has provided a space
for a tattoo artist and is remunerated accordingly with
a percentage of the artist’s sales. . . .
‘‘Sapia performs services for the tattoo customer and
deals with the customer directly on all matters of the
transaction, especially the pricing and the scheduling
of the transaction. None of this involves the plaintiff’s
customers, [because the services provided by the plain-
tiff and Sapia] are completely separate and distinct.
‘‘Under the facts of this case, it is undisputed that
the plaintiff has a retail jewelry store selling body jew-
elry and piercing services. It was found that Sapia was
given a backroom space to perform his tattoos on per-
sons who liked his ‘deviant art’ tattoos. Sapia advertises
to his own clientele, schedules all his own appointments
and also accepts walk-ins from the mall. Sapia provides
his own art supplies and owns the software designs
and all of his own intellectual property. None of the
work product is retained or owned or usable by the
plaintiff. The plaintiff is not paying Sapia to appear and
sit hourly in the back room. It is Sapia [who] makes
his own schedules and determines the fees for his
own enterprise.’’
Before we turn to the merits of the plaintiff’s claim,
we set forth some principles that guide our review. ‘‘To
the extent that an administrative appeal, pursuant to
. . . § 31-249b, concerns findings of fact, a court is lim-
ited to a review of the record certified and filed by the
board of review. The court must not retry facts [or]
hear evidence. . . . If, however, the issue is one of law,
the court has the broader responsibility of determining
whether the administrative action resulted from an
incorrect application of the law to the facts found or
could not reasonably or logically have followed from
such facts. Although the court may not substitute its
own conclusions for those of the administrative board,
it retains the ultimate obligation to determine whether
the administrative action was unreasonable, arbitrary,
illegal or an abuse of discretion.’’ (Internal quotation
marks omitted.) Mattatuck Museum-Mattatuck Histor-
ical Society v. Administrator, Unemployment Com-
pensation Act, 238 Conn. 273, 276, 679 A.2d 347
(1996) (Mattatuck).
Separate from the plaintiff’s argument that the board
misapplied the law to the facts found, the issue of
whether the board properly interpreted § 31-222 (a) (B)
(ii) (II) presents this court with a question of law that
is subject to plenary review. ‘‘Although [o]ur review of
an agency’s decision on questions of law is limited by
the traditional deference that we have accorded to that
agency’s interpretation of the acts [that] it is charged
with enforcing . . . [i]t is well settled . . . that we do
not defer to the board’s construction of a statute . . .
when . . . the [provision] at issue previously ha[s] not
been subjected to judicial scrutiny or when the board’s
interpretation has not been time tested.’’ (Citation omit-
ted; internal quotation marks omitted.) Kirby of Nor-
wich v. Administrator, Unemployment Compensation
Act, 328 Conn. 38, 47, 176 A.3d 1180 (2018).9
In interpreting a portion of the ABC test, our Supreme
Court explained in relevant part: ‘‘[W]hen interpreting
provisions of the act, we take as our starting point the
fact that the act is remedial and, consequently, should
be liberally construed in favor of its beneficiaries. . . .
Indeed, the legislature underscored its intent by
expressly mandating that the act shall be construed,
interpreted and administered in such manner as to pre-
sume coverage, eligibility and nondisqualification in
doubtful cases. General Statutes § 31-274 (c). . . . We
also note that exemptions to statutes are to be strictly
construed. . . . Nevertheless, the act should not be
construed unrealistically in order to distort its purpose.
. . . While it may be difficult for a situation to exist
where an employer sustains his burden of proof under
the ABC test . . . it is important to consider that [t]he
exemption [under the act] becomes meaningless if it
does not exempt anything from the statutory provisions
. . . where the law and the facts merit the exemption
in a given case. . . . Rather, statutes are to be con-
strued so that they carry out the intent of the legislature.
. . . We must construe the act as we find it . . . .’’
(Citations omitted; internal quotation marks omitted.)
Standard Oil of Connecticut, Inc. v. Administrator,
Unemployment Compensation Act, 320 Conn. 611, 616–
17, 134 A.3d 581 (2016).
The portion of part B at issue in this appeal, which
focuses on whether the service performed is within
the usual course of the business of the employer, was
interpreted by our Supreme Court in Mattatuck, supra,
238 Conn. 273. Thus, we rely on that prior judicial inter-
pretation of the statutory provision at issue. In Matta-
tuck, our Supreme Court discussed the ‘‘usual course
of the business’’ element of part B, stating: ‘‘First, it
must be determined for whose ‘business’ the service
was performed . . . . [T]he plain language of prong B
. . . requires inquiry into ‘the business for which the
service is performed . . . .’ ’’ (Citation omitted; empha-
sis in original.) Id., 279; see General Statutes § 31-222
(a) (1) (B) (ii) (II). ‘‘Prong B does not refer to the
type of business, but, rather, to the specific business
activities engaged in by the enterprise. Accordingly,
with respect to this prong, we examine the particular
activities engaged in by the plaintiff.
‘‘We next define the term ‘usual.’ The plaintiff argues
that ‘usual’ does not mean ‘if you do it, it is within your
usual course of business.’ We agree. To define the term
in such a manner would include every relationship,
including bona fide independent contractors, within the
purview of the act. Indeed, the administrator does not
argue for such a definition. Rather, the administrator
asserts, and we agree, that ‘usual,’ in accordance with
its common usage, simply means that an activity is
performed by the enterprise on a regular or continuous
basis. In the terms of § 31-222 (a) (1) (B) (ii) (II), if the
activity is not performed on a regular or continuous
basis, then the employer has satisfied prong B because
the activity is ‘outside the usual course of the business’
of the enterprise. . . .
‘‘Prong B . . . does not compel an inquiry into the
substantiality or extent of a particular business activity
in relation to other activities conducted by the enter-
prise. We agree that the mere fact that an enterprise
undertakes an activity as an isolated instance does not
render that activity within its ‘usual course of business.’
If, however, an enterprise undertakes an activity, not
as an isolated instance but as a regular or continuous
practice, the activity will constitute part of the enter-
prise’s usual course of business irrespective of its sub-
stantiality in relation to the other activities engaged in
by the enterprise.
‘‘In sum, prong B requires the finder of fact to deter-
mine whether the activity performed is within the ‘usual
course of business’ of the specific business at issue. In
our view, ‘usual course of business,’ as used in § 31-
222 (a) (1) (B) (ii) (II), means that the enterprise per-
forms the activity on a regular or continuous basis,
without regard to the substantiality of the activity in
relation to the enterprise’s other business activities.’’
(Footnotes omitted.) Mattatuck, supra, 238 Conn. 279–
81. Applying this test, the court concluded that the
plaintiff museum, which operated largely as an exhibi-
tion hall for historic artifacts and art, was the employer
of individuals who provided art courses at the museum,
even though such lessons may have been insubstantial
as compared to the museum’s other activities. Id.,
280, 282.
 After a careful review of the board’s decision, we
conclude that the board did not misinterpret the statute.
As did the trial court, the board expressly cited to and
relied on our Supreme Court’s binding interpretation
of part B of the ABC test as set forth in Mattatuck.
Furthermore, we agree with the trial court that the
board’s application of the statute to the facts of the
present case, and its determination that the offering of
tattoo services was within the plaintiff’s usual course
of business, was neither unreasonable nor arbitrary.
In determining whether the board’s decision logically
followed from the facts found, we observe that the
board adopted finding ten made by the appeals referee,
which directly shed light on the nature of the plaintiff’s
business enterprise. The finding provides: ‘‘[The plain-
tiff] is in the business of providing piercings, selling
jewelry for the piercing, and offering tattoo services.
[The plaintiff] advertises through its website and its
Facebook page that a customer can have piercings or
tattoos done at its store and lists the hours that the
tattoo artist is in the store.’’ We observe that the plaintiff
does not dispute that this finding was based on the
evidence in the record concerning the contents of its
website and its Facebook page.10 This evidence reflects
that the plaintiff portrayed itself to the general public
as a seller of body jewelry, piercing services, and tattoo
services. Moreover, this evidence reflects that tattoo
services were offered for sale during the hours in which
the plaintiff’s store was open for business. As the board
found, Sapia earned income by means of providing tat-
too services in the plaintiff’s store and, in fact, his only
income was derived from the moneys that he received
from the plaintiff for performing tattoo services in its
store.
The plaintiff attempts to discount the probative value
of its online advertisements. Yet, as our Supreme Court
observed in Mattatuck, the manner in which a business
portrays its business activities to the public, rather than
an evaluation of the type of business that it is, is integral
to an analysis under part B of the ABC test. Mattatuck,
supra, 238 Conn. 282 (finding that museum held itself
out to public as offering art courses, produced bro-
chures concerning art courses, distributed brochures
announcing art courses, and listed art course instructor
as member of its faculty, which supported conclusion
that art courses were regular part of museum’s business
enterprise). Thus, there was a basis in the board’s find-
ings to support its ultimate determination that the tattoo
services provided by Sapia were integral to the activities
undertaken by the plaintiff’s business enterprise and
part of its usual course of business.
The plaintiff argues that, with respect to their analy-
ses under part B, both the board and the court focused
solely on the finding concerning the plaintiff’s website
and Facebook page and not on other relevant findings
that did not support the board’s determination.11 How-
ever, nothing in the decisions of the board or the court
supports the assertion that any relevant findings were
ignored because both the board and the court indicated
that their decisions were made following a review of
the entire record and reflected a review of the entire
record. The plaintiff interprets the board’s findings and
the evidence to support a determination that Sapia’s
business enterprise was separate and distinct from that
of the plaintiff. Even if some of the board’s findings,
viewed in artificial isolation, could be interpreted as
the plaintiff suggests, it does not detract from the rea-
sonableness of the board’s conclusion, which was made
in consideration of all of its findings. ‘‘[R]eview of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . . [A]n agency’s factual and discretionary
determinations are to be accorded considerable weight
by the courts.’’ (Citation omitted; internal quotation
marks omitted.) JSF Promotions, Inc. v. Administra-
tor, Unemployment Compensation Act, supra, 265
Conn. 417–18.
Furthermore, several other findings of fact made by
the board, particularly with respect to the work environ-
ment that the plaintiff provided Sapia, support the
board’s conclusion that providing tattoo services was
an ongoing and integral part of the plaintiff’s business
activities. Specifically, the board found that the plaintiff
provided Sapia with a workspace in the back room of
its store at no cost to Sapia, the plaintiff required tattoo
customers to sign a waiver releasing the plaintiff and
Sapia from various types of liability, the plaintiff permit-
ted Sapia to use its credit card machine to collect pay-
ments from tattoo customers at no cost to Sapia, and
tattoo customers received a receipt, which listed the
plaintiff’s name and contact information. These subor-
dinate findings strongly supported the board’s ultimate
finding that Sapia’s services were a regular part of the
plaintiff’s business enterprise.
We also reject the plaintiff’s argument that the board’s
findings reflected that Sapia’s services merely enhanced
the jewelry and body piercing services that it was offer-
ing to its own customers purchasing jewelry and pierc-
ing services. We agree with the court that the aforemen-
tioned findings of the board reflect that the services
provided by Sapia were an integral part of the plaintiff’s
ongoing business activities and that tattoo customers
were part of the plaintiff’s customer base. Although the
plaintiff argues that its customers and Sapia’s custom-
ers are ‘‘completely separate and distinct,’’ the manner
in which the plaintiff advertised its business to the
public strongly supports the board’s finding that Sapia
regularly performed a part of the plaintiff’s business
enterprise, which was the sale of jewelry, piercing ser-
vices, and tattoo services. We fail to see how Sapia’s
tattoo services were any less integral to the plaintiff’s
business than were the art courses at issue in Mattatuck.
On the basis of the foregoing, we conclude that the
court and the board properly applied part B of the
ABC test to the plaintiff’s employment relationship with
Sapia, and properly concluded that substantial evidence
exists in the record for the board to have determined
that the provision of tattoo services was within the
plaintiff’s usual course of business.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The record reflects that the plaintiff is Immortal Studios, LLC, doing
business as Vogue. Despite the fact that the plaintiff’s appeal to the trial
court was docketed under the plaintiff’s business name only, a review of
the record reflects that it brought its appeal to the trial court as Immortal
Studios, LLC, doing business as Vogue. A review of its filings before this
court reflects that the plaintiff has brought the present appeal in that
same capacity.
2
In this appeal, the plaintiff also claims that the trial court improperly
refused to correct several findings made by the board. We dispose of this
claim with little discussion. The plaintiff filed a motion to correct the board’s
findings. The board granted, in part, and denied, in part, the motion to
correct. The court carefully considered and rejected the plaintiff’s claim
that several findings should be corrected. Having considered the arguments
made by the plaintiff, the findings at issue, and the record, we are not
persuaded that any error exists with respect to the court’s rejection of the
plaintiff’s claims regarding the findings made by the board. We conclude
that the findings challenged in this appeal are either immaterial to an analysis
under part B of the ABC test, on which the court relied, or that the plaintiff
has not demonstrated that the findings should be corrected pursuant to the
standard set forth in Practice Book § 22-9 (b).
3
As we will explain in greater detail, because the court concluded that
the plaintiff failed to satisfy part B of the test, and all three parts of the test
must be satisfied to demonstrate that service does not constitute employ-
ment under the act, the court did not address parts A and C of the ABC
test. In light of our conclusion that the court properly upheld the board’s
analysis under part B, we likewise need not address parts A and C of the test.
4
General Statutes § 31-249b provides in relevant part: ‘‘At any time before
the board’s decision has become final, any party, including the administrator,
may appeal such decision, including any claim that the decision violates
statutory or constitutional provisions, to the superior court for the judicial
district of Hartford or for the judicial district wherein the appellant resides.
Any or all parties similarly situated may join in one appeal. . . . An appeal
may be taken from the decision of the Superior Court to the Appellate Court
in the same manner as is provided in section 51-197b. . . .’’
5
Practice Book § 22-4 provides: ‘‘If the appellant desires to have the finding
of the board corrected, he or she must, within two weeks after the record
has been filed in the Superior Court, unless the time is extended for cause
by the board, file with the board a motion for the correction of the finding
and with it such portions of the evidence as he or she deems relevant and
material to the corrections asked for, certified by the stenographer who
took it; but if the appellant claims that substantially all the evidence is
relevant and material to the corrections sought, he or she may file all of it,
so certified, indicating in the motion so far as possible the portion applicable
to each correction sought. The board shall forthwith upon the filing of the
motion and of the transcript of the evidence, give notice to the adverse
party or parties.’’
6
We note that the board denied seven of the plaintiff’s requests to correct
its findings. Specifically, the board denied the plaintiff’s request that finding
fourteen state: ‘‘Sapia sold tattoo-style artwork to customers for which the
[plaintiff] had no rights to any income, and sold his tattoo art, tattoos and
designs to the general public at his studio and on websites, such as Etsy.’’
The board denied the request to modify finding twelve to reflect that Sapia
advertised his own services by means of distributing personal business
cards. The board denied the plaintiff’s request that finding ten reflect ‘‘that
the [plaintiff] lists the hours that the tattoo artist is in the store and to call
for availability.’’ The plaintiff also asked the board ‘‘to add language reflecting
that Sapia was not required to be in the [plaintiff’s] store for any set times
and that he was under his own incentive as to whether or not he was in
the store on any given day.’’ The board denied the request that it delete a
reference in its decision to the fact that ‘‘Sapia would only be available
certain hours during the [plaintiff’s] hours of operation . . . .’’ The board
denied the request that it delete the following finding from its decision:
‘‘[T]he [plaintiff] provided no evidence that Sapia actually performed tattoo
services under his own name or has a regular or established clientele.’’ The
board denied the plaintiff’s request that it adopt a finding that Sapia set his
own prices. Finally, the board denied the plaintiff’s request that it find as
follows: ‘‘Sapia has liability to Vogue to correct defective work, and for a
proper accounting of commissions paid and [owed], and for client refunds.’’
7
Specifically, in May, 2018, the plaintiff, pursuant to Practice Book § 22-
8, filed claims of error with respect to portions of the board’s decision on
the motion to correct. See footnote 2 of this opinion.
8
The court also stated: ‘‘Even if the plaintiff were to argue that Sapia
performed his services outside of the plaintiff’s place of business, the record
reflects that Sapia provided his tattoo services at the plaintiff’s store and,
thus, not outside the plaintiff’s place of business.’’
9
The defendant asserts that this court should defer to the board’s reason-
able findings but does not assert that the board’s interpretation of § 31-222
(a) (1) (B) (ii) (II), as applied to the unique fact pattern presented by the
present case, is time-tested or that its interpretation previously has been
subjected to judicial scrutiny. The plaintiff asserts that part B of the ABC
test has not been subjected to significant judicial or agency interpretation.
10
The evidence, which was credited by the board, reflects that the plaintiff,
by means of its website and Facebook page, described its business as ‘‘Vogue
Tattoo and Piercing.’’ The plaintiff’s website introduced potential customers
to the services it provides, in relevant part: ‘‘Welcome to Vogue, your one
stop destination for body jewelry, stainless steel jewelry, as well as piercing
and tattoo services.’’ One portion of the plaintiff’s website stated: ‘‘Tattoo
Artist available daily from noon to 8 p.m., except Sundays.’’ Another portion
of the website stated: ‘‘Tattoo Artist Mark Sapia. Available for walk-ins daily
except for Sundays. Call for availability . . . .’’ The phone number listed
on the website was for the plaintiff’s business.
11
Although, in connection with this claim, the plaintiff relies on facts that
were not found by the board, we will confine our analysis to the findings
of the board.