Ica Labor v. Sofrita LLC

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

INDUSTRIAL COMMISSION OF ARIZONA LABOR DEPARTMENT,
Petitioner,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA,
Respondent,

SOFRITA LLC,
Respondent Employer.

No. 1 CA-IC 21-0033
FILED 6-16-2022

Special Action - Industrial Commission
No. CL-1819-0292
The Honorable Jonathan Hauer, Administrative Law Judge, Retired

AFFIRMED

COUNSEL

Industrial Commission of Arizona, Phoenix
By Scott J. Cooley
Counsel for Petitioner

Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent

Schumacher Law Firm, Fountain Hills
By Douglas M. Schumacher
Counsel for Respondent Employer
 ICA LABOR v. SOFRITA LLC
Opinion of the Court

OPINION

Presiding Judge David D. Weinzweig delivered the opinion of the Court, in
which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Arizona law forbids some businesses from hiring children for
some work, designated as too hazardous by our legislature. At issue here
is a child labor law that forbids “retail food [] establishment[s]” from hiring
minors under the age of 16 to “work in, about, or in connection with [both]
cooking and baking.” See A.R.S. § 23-232(A)(8)(b). The Industrial
Commission of Arizona, which enforces our child labor laws, presently
interprets these words to forbid Arizona restaurants from hiring those
children for any job that requires them to walk through a kitchen. An
administrative law judge rejected that interpretation. So do we.

FACTS AND PROCEDURAL BACKGROUND

¶2 Sofrita is a family-owned Latin American restaurant in
downtown Fountain Hills. In September 2018, an anonymous tipster
advised the Industrial Commission that Sofrita hired children “under the
age of 16 [to] work[] long hours with no breaks” for jobs requiring them to
be “around [or] in the kitchen.”

¶3 The Industrial Commission formally notified Sofrita of
“possible violation[s] of state youth employment laws,” and asked the
owner for a list of restaurant employees, including their ages, dates of
employment, type of work and shift schedules. The owner provided the
information by email, revealing that the restaurant had three employees
under 16 years old; each worked as a hostess near the front door, greeting
the diners who entered.

¶4 Six months later, the Industrial Commission sent an
investigator to visit Sofrita and interview its owner. Asked about the young
hostesses, the owner insisted they had no hand in cooking, baking or food
preparation. Asked how the young hostesses interacted with the kitchen,
the owner said they occasionally (1) bussed tables, which required them to
transport dirty dishes from the dining room to a busser’s tub “just inside
the kitchen entrance,” away from the stoves or ovens, and (2) sometimes

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Opinion of the Court

had to enter the restaurant through a back door, mostly for big events,
forcing them to walk through the kitchen to staff their workspace at the
front. Based on that, the investigator informed the owner that Sofrita had
broken Arizona law, advising the young hostesses “cannot be in the
kitchen,” “for any reason,” “even if they are passing through to clock in,”
and “should not [] enter through the kitchen at all.”

¶5 The investigator recommended that the Industrial
Commission charge the restaurant with four state child labor violations;
three under A.R.S. § 23-232(A)(8)(b) for “cooking and baking,” and one
under A.R.S. § 23-233(A)(3) for shift limits.

¶6 Accepting the recommendation, the Industrial Commission
issued a cease-and-desist order to Sofrita, imposing the maximum $1,000
civil penalty. Of this amount, $800 was for “underage workers passing
though the kitchen in close proximity to cooking and baking equipment,”
and $200 was “for not providing any timekeeping records to rule out a
violation” of A.R.S. § 23-233(A)(3).

¶7 Sofrita requested a hearing. An administrative law judge
heard the evidence and argument. The investigator testified. She offered
her interpretation of the relevant statute, Section 23-232, and its phrase “in,
about, or in connection with.” The investigator described those words as
“a very important part of all of our youth labor investigations.” Asked
what they meant, she answered “it means [that minors] may not . . .
perform[] the duties that are related to prohibited occupations or
equipment, but if [the minors] are in the area and around the equipment or
the occupation, that still qualifies as a violation.”

¶8 The ALJ rejected the Industrial Commission’s interpretation
and argument, holding that Section 23-232 did not regulate “casual
encounters [between minors and] the kitchen space.” The ALJ compared
such sporadic contact to four exceptions listed in the statute: “soda
fountains, lunch counters, snack bars, and cafeteria serving counters”
where “cooking and baking activities presumably occur.” The ALJ also
found the Industrial Commission had an “inadequate factual basis” for the
civil penalty. As a result, the ALJ modified the cease-and-desist order and
vacated the civil penalty.

¶9 The Industrial Commission petitions for special action
review. We have jurisdiction. See A.R.S. §§ 23-237(C), -951(A); see also Ariz.
R. P. Spec. Act. 10.

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Opinion of the Court

DISCUSSION

¶10 The Commission insists this court “gives great weight” to the
Commission’s interpretation of state child labor laws because the
Commission enforces them. We disagree. This argument sounds like
Chevron deference, which died under Arizona law in 2018. See A.R.S. § 12-
910(F). The legislature now directs that Arizona courts “shall” interpret all
statutes and all agency rules “without deference to any previous
determination that may have been made on the question by the agency.”
A.R.S. § 12-910(F).

A. Relevant Statute

¶11 We interpret Arizona statutes de novo, seeking to determine
and achieve the legislature’s intent, which is most obvious from the
statute’s plain and unambiguous language. See Matter of ABB Tr., 251 Ariz.
313, 317–18, ¶¶ 18, 22 (App. 2021).

¶12 This appeal requires us to interpret Section 23-232, which
forbids Arizona restaurants from hiring children under the age of sixteen
to perform a list of hazardous activities. See A.R.S. § 23-232. The statute
lists several “[p]rohibited employments for persons under the age of
sixteen,” and then catalogues the “activities” for which these children
cannot be hired:

[A] person shall not employ or allow a person under the age
of sixteen years to work in, about or in connection with:

8. Any of the following activities in a retail food . . .
establishment[, including] (b) [c]ooking and baking, except at
soda fountains, lunch counters, snack bars or cafeteria serving
counters.

See A.R.S. § 23-232 (A)(8)(b) (emphasis supplied).

¶13 The Commission urges that Section 23-232 prohibits food
retailers from authorizing “underage” employees to “occasionally pass[]
through the kitchen and plac[e] dishes into a tub at the bussers’ station.”
As support, the Commission maintains uninterrupted focus on five words
in the statute: “in, about or in connection with.” But those words have no
meaning unless tethered to the actual prohibited activities: “cooking and
baking.” Indeed, Section 23-232(8)(b) never mentions the word “kitchen”
or says that location is off limits, and instead focuses on two activities—
cooking and baking. And the legislature knows how to craft location-based

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Opinion of the Court

restrictions, which appear elsewhere in the same statute. Compare A.R.S.
23-232(9)(d) (“in a pen”), (9)(f) (“from a ladder”), (9)(g) (“on a tractor”),
(9)(h) (“inside a fruit storage area”). Nothing in the statute supports the
Commission’s reading that employers must prevent minors from entering
the kitchen to drop dishes in a busser’s tub. See Matter of ABB Tr., 251 Ariz.
at 318, ¶ 25 (“[T]hat argument is not supported by the statute’s plain
language, and this court ordinarily resists reading words or requirements
into a statute.”).

¶14 Returning to the plain language, Section 23-232 prohibits
retail food establishments from hiring children under 16 for “cooking and
baking” activities. The legislature never defined “cooking” or “baking,” so
we use the “common meaning” of those words, Ariz. Biltmore Hotel Villas
Condos. Ass’n v. Conlon Grp. Ariz., LLC, 249 Ariz. 326, 332, ¶ 26 (App. 2020).
According to one popular dictionary, the word “cooking” means “to
prepare food for eating by applying heat,” and the word “baking” means
“to cook food with dry heat, especially in an oven.” See American Heritage
Dictionary (5th ed. 2020). Properly defined, then, Section 23-232 prohibits
Arizona restaurants from hiring children under 16 years old “to work in,
about or in connection with” the heating of food, “especially in an oven.”
It does not forbid employees under 16 years old from walking in the
kitchen.

¶15 That interpretation is confirmed by the statute’s exceptions.
See Cal. Cas. Ins. Co. v. Am. Fam. Mut. Ins. Co., 208 Ariz. 416, 419–20, ¶ 11
(App. 2004) (declining to construe the “use in connection with” provision
“so broadly that it would eliminate [the statute’s] exclusion”). In particular,
Section 23-232 carves out “soda fountains, lunch counters, snack bars or
cafeteria serving counters,” which presumably have kitchens, too. See
A.R.S. § 23-232 (A)(8)(b).

¶16 Federal regulations also undermine the Commission’s broad
interpretation. Arizona modeled its child labor laws on their federal
counterparts, the Fair Labor Standards Act (FLSA). See A.R.S. § 23-410(1)
(“propos[ing] adoption of national consensus standards or federal
standards” for employment conditions and occupational safety). The FLSA
permits minors to do “kitchen work,” including food preparation and
cleaning of kitchen equipment, and even to “occasionally enter freezers to
retrieve items.” 29 C.F.R. § 570.34(i).

¶17 The centerpiece of the Commission’s argument is a UCLA law
review article, which it offers to “explain[] why broad language was used.”
By using passive voice, the Commission leaves unclear who used the

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Opinion of the Court

“broad language,” but we assume it means the Arizona legislature. We are
unmoved. The law review article never mentions the Arizona legislature
or “cooking” and “baking,” the words used by our legislature to delineate
the restricted activities. See Bruce Goldstein et al., Enforcing Fair Labor
Standards in the Modern American Sweatshop: Rediscovering the Statutory
Definition of Employment, 46 UCLA L. Rev. 983 (1999) (discussing neither
Arizona’s child labor laws nor cooking and baking restrictions in general).
We affirm the ALJ’s interpretation and deny relief.

B. Civil Fine

¶18 The Commission next contends the ALJ erroneously vacated
the $1,000 civil penalty imposed on Sofrita. We disagree. First, the record
contains no evidence that Sofrita violated Section 23-232(8)(b). Second, the
Commission has cited no authority to fine Sofrita for “not providing any
timekeeping records to rule out a violation” of Section 23-233(A)(3). The
legislature authorized civil penalties only when the Commission “has
reasonable cause to believe that any person is violating” Section 23-
233(A)(3), which does not address the timely production of time sheets
upon demand. See A.R.S. § 23-236.

CONCLUSION

¶19 We affirm the ALJ’s order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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