dissenting. I write to draw the General Assembly’s attention to the fact that confusion abounds in this case over what section ll-10-210(e)(2) means and over where the places of business of Mamo Transportation are for the enterprise of transporting large vehicles. Four justices apparently believe that all transporting vehicles used by all independent contractors contracting with Mamo are Mamo’s “places of business.” Two justices interpret “places of business” even more expansively to include every inch of roadway where the transporting vehicle used by independent contractors is traveling. In other words, the entire road system traversed by every transporting vehicle is a place of business for Mamo. I interpret places of business to be those locations where Mamo actually conducts its business, which includes its headquarters in Indiana and its four dispatch offices.
Though, admittedly, there is a conflict of authority in foreign jurisdictions, the reasoning of the Massachusetts Supreme Judicial Court is persuasive to me in defining places of business. See Athol Daily News v. Bd. of Review of the Div. of Employment & Training, 786 N.E.2d 365 (Mass. 2003). In Athol, the issue was whether unemployment compensation benefits should be paid to adult newspaper deliverers who delivered newspapers house to house and elsewhere. The Supreme Judicial Court of Massachusetts interpreted the same “places of business” language as we have in our Code and denied benefits. The court had this to say:
The division’s assertion that the News’s “places of business,” for purposes of the second part oftheABC test,includes the geographic area tracked by all of the News’s delivery routes, is illogical. The one decision cited by the division in support of its position, Richardson Bros. v. Board of Review of Dep’t of Employment Sec., 198 Ill.App.3d 422, 144 Ill.Dec. 607, 555 N.E.2d 1126 (1990), concerned truck drivers who distributed garden plants to retail outlets, and not carriers who deliver newspapers to private homes. To the extent that language employed by the Illinois court suggests that a newspaper delivery route is a newspaper company’s place of business for purposes of G.L. c. 151 A, we respectfully disagree. See id. at 430, 144 Ill.Dec. 607, 555 N.E.2d 1126, citing Eutectic Welding Alloys Corp. v. Rauch, 1 Ill.2d 328, 115 N.E.2d 898 (1953) (“where an employing unit assigns a specific area to an individual for the purpose of selling its product... that area is the place of business of the enterprise”).
Athol, 786 N.E.2d at 372 n.11.
Similarly, the Appeals Court of Massachusetts, Suffolk, interpreted this same language in connection with taxicab drivers who were independent contractors and dispatched from the business premises of Town Taxi. See Comm’r of the Div. of Unemployment Assistance v. Town Taxi of Cape Cod, Inc., 862 N.E.2d 430 (Mass. App. Ct. 2007). In holding that places of business did not include taxi cab routes, the court said:
The service performed by the drivers occurred outside the business premises ofTown Taxi. Although the taxicabs were stored and the dispatch system was operated at the business premises of Town Taxi, the drivers did not transport customers on those premises. Compare Althol Daily News, 439 Mass. at 179, 786 N.E.2d 365 (where carriers picked up newspapers from employer’s distribution center and delivered them to individual houses, stores, bundle drops, or vending machines, “all of the carriers ma[d]e deliveries outside of premises owned by the [employer] or which could fairly be deemed its ‘place of business’ ”).
Town Taxi, 862 N.E.2d at 435.
Nor does the court of appeals case in Home Health Care Professionals of Arkansas, Inc. v. Williams, 95 Ark. App. 194, 235 S.W.2d 836 (2006), give the majority the “cover” it would like. In that case, caregivers provided a fixed service at a fixed location, the patient’s home, and the court of appeals held that the home locations were places of business of the Home Health Care enterprise. In the case before us, however, under the majority’s interpretation, Mamo’s places of business along any roadway would be all transporting vehicles for as long as it took the independent contractors to travel to their destinations. That interpretation is excessively broad and, to use the language of the Massachusetts Supreme Judicial Court, “illogical.”
It is clear to me that the General Assembly drew a distinction in section ll-10-210(e)(2) between where the service is being performed, which could include the roadways on the one hand, and “places of business of the enterprise for which the service is performed,” which are obviously the premises, on the other. Ark. Code Ann. § ll-10-210(e)(2) (Repl. 2002). Yet the majority opinion conflates the two, which adds to the confusion.
At oral argument before this court, counsel for the Department of Workforce Services admitted that this issue had been difficult for his agency and “a tough one,” as he put it. While providing unemployment benefits is a worthy purpose, the qualifying factors, it is submitted, should be established by the General Assembly and not by an overbroad and illogical interpretation by the courts.
I respectfully dissent.