NEW YORK STATE DEPARTMENT OF LABOR UNEMPLOYMENT INSURANCE ADMINISTRATIVE LAW JUDGE SECTION In the Matter of the Liability for Unemployment Insurance Contributions Under Article 18 of the Labor Law of: JENNIFER PAPULA, Claimant – Respondent, NYS ARC, DC CHAPTER, Employer – Appellant. Linda Angelo Commissioner of Labor Social Security No. : 070-68-8173 Case No. : 102-2084-0001 Appeal Board No. : 505585 Date of Hearing: April 22, 2002 Place of Hearing: Poughkeepsie, New York Before: Tracy Roberts Administrative Law Judge Transcribed by: Joann McDonnell Appearances: Clt.
: Jennifer Papula Emp. : NYS Arc, DC Chapter Emp. By: Terry Temple, H. R. Dir. Emp.
Wit. : Joanne Rohr ssen, Witness Maureen Gallagher, Witness THE MECHANICAL SECRETARY 108-16 72 nd Avenue Forest Hills, New York 11375 (718) 268-7900 ALJ MEYER: Testing one two testing testing. Okay we are on the record in ALJ case number 302-01153. Today’s date is the second of May 2001 or 2002 rather.
This hearing was scheduled for eleven o’clock but it is about eleven forty five now and we are going to go ahead with the hearing. It was scheduled before Judge Parker but he is involved in a lengthy hearing right now we are going to just go ahead with this hearing. Present in the hearing room is the claimant Maxine M. Walter and for Hamburg Country Store your name please? MS. POLITI: Bonnie Politi. ALJ MEYER: P o l i t i? MS.
POLITI: Yes. ALJ MEYER: Okay and you are the owner? MS. POLITI: Yes. ALJ MEYER: Okay and also present in the hearing room for the Department of Labor is? MR. REISCH: William Reisch R e i s c h and I am a Senior Unemployment Insurance Hearing Representative representing the Commissioner of Labor. ALJ MEYER: Okay and my name is Susan Meyer I am the Administrative Law Judge who is now designated to conduct this hearing.
I am independent and I am impartial and I have no connection with the Commissioner of Labor’s office that issued the initial determination in this case. There are three initial determinations. The first one is you are not totally unemployed you are ineligible for unemployment insurance benefits for the period and reason indicated below beginning 10/23 2000 through 4/29 2001 you were not totally unemployed. This determination is based on the following you performed substantial services for your craft business by selling buying and creating crafts. There was also a determination of over payment in the amount of ten thousand three hundred and twenty three dollars and it reads as follows as a result of the above determination meaning the determination of not totally unemployed you have been overpaid ten thousand three hundred twenty three dollars the benefits paid for weeks after 5/17/98 are recoverable because of the reasons shown below and because you made factually false statements that you did not work. Now here is a notice of determination of wilful false statements there is a number there are a number of dates listed on that determination beginning November 5 th 2000 and going through April 29 th 2001.
And the text of that initial determination reads as follows you wilfully made false statements to obtain benefits therefor your right to further benefits between now and 4/28/03 when this penalty expires is reduced by two hundred twelve effective days. This penalty is imposed because you falsely certified that you did not work in employment or self employment when you knew that you had worked. Now Ms. Walters did you receive copies of those determinations? MS. WALTER: Yes I did. ALJ MEYER: Okay and those are the determinations that you requested a hearing on is that correct? MS.
WALTER: Yes ma ” am. ALJ MEYER: Okay let me explain to you all how the hearing will be conducted. All testimony will be taken under oath. First I am going to give Mr. Reisch an opportunity to make an opening statement if he has one and then I am going to swear you in Ms. Walter and take your testimony and Mr.
Reisch and Ms. Politi will be given the opportunity to cross examine you if they have any questions for you. Then I am going to swear in Ms. Politi and take your testimony and then Mr.
Reisch and Ms. Walter will be given the opportunity to cross examine you if they have any questions for you. If any of you have any witnesses or documents that you want to present today please do so. If they are unavailable to you at this time you can request my assistance in obtaining a subpoena to compel their production.
Before the hearing is closed I am going to give both all of you Ms. Walter, Ms. Politi – MS. POLITI: Politi.
ALJ MEYER: Politi. MS. POLITI: Yes. ALJ MEYER: I am sorry.
MS. POLITI: It is okay. ALJ MEYER: I am so sorry. Ms. Politi and Mr.
Reisch an opportunity to give closing statements that is to bring to my attention anything you think I might have overlooked during the course of the hearing. So do you all understand how the hearing will be conducted? MS. WALTER: Yes. MS.
POLITI: Yes. MR. REISCH: Yes. ALJ MEYER: And are you ready to proceed? MS. POLITI: Yes. MS.
WALTER: Yes. MR. REISCH: Yes. ALJ MEYER: Mr.
Reisch did you have an opening statement? MR. REISCH: Just in addition to the determination I would like to add that the claimant filed an original claim for unemployment insurance benefits effective October 23 rd 2000. I have nothing further. ALJ MEYER: Okay then Ms.
Walter if you would raise your right hand please. M A X I N E M. W A L T E R, having been duly sworn testifies as follows: BY ALJ MEYER: Q. So Ms. Walter is Mr. Reisch correct when he said that you filed an original claim for benefits effective October 23 rd 2000? A.
Yes he is. Q. And you filed that claim for benefits because your previous job came to an end? A. Yes it did. Q.
Okay now do you have a business that you also have in addition to having that previous employment? A. I did crafting I do crafting. Q. And are you incorporated or you have a DBA or anything like that? A. No nothing. Q.
Okay does your business have a title? A. No I am just a vendor making crafts for two shops. Q. You make crafts for two different shops? A. Right.
Q. And what are the shops names? A. Ebeneezer [phonetic] Hill and Hamburg Country Store. Q.
Okay and when did you begin this business? A. I been doing it about five years. Q. Okay and were you doing it during the period for which you were receiving unemployment benefits? A.
No I wasn’t. Q. Okay when did you stop doing it? A. I actually stopped doing it probably about six or seven months prior to being unemployed but I would do it a little bit at a time I was taking care of my mother until she died that year and then when I became unemployed just before I became unemployed I started doing it again because my grief counselor got me to do it again then when I lost my job within two weeks of that I just didn’t do it anymore for a while. Q.
Okay. A. I just started picking it up a little while ago again. Q. Why did you stop doing it after you lost your job? A. I was going on unemployment and I didn’t expect to lose my job and it really hit me bad and I was also trying to sell the estate of my mother which I hadn’t accepted her dying so I wasn’t doing it mainly do the crafting at night because I worked full time and I just lost interest in doing it really.
Q. What type of crafts did you make? A. Do you want to see it? Q. No if you could just describe? A. I make like little nylon lamp shade covers and I made little aprons for dove bottles and I made wall hangings. Q.
Okay so what when you were making these were your two clients Ebeneezer Hill and Hamburg Country Store when you were making these items? A. Yes I would take them in and put them in you rent a space and you just take them in as you want to take things in and put them in the shop you pay rent and you pay a percentage at Ebeneezer Mill you pay a percentage also of your sales so I would pay rent at Ebeneezer Mill plus twenty five percent of my sales. Q. Okay so do you have rental agreements in writing or is it just done verbally? A.
There is rental agreements. Q. Did you bring those with you? A. No I didn’t think of those I didn’t think I needed them sorry. Q. Okay.
A. Do you want me to put it down to bring them? Q. No just hang on. A. Okay. Q.
So when was the last time you paid rent to Ebeneezer Mills? A. I paid monthly I never stopped paying. Q. Okay so you paid rent to them for the entire period? A. I never stopped paying right. Q.
Okay so even though you weren’t making the crafts while you were unemployed you still paid rent? A. Right. Q. Okay.
A. Because I still had crafts in there from all the time and the best thing I thought doing was because I share it with another person and I have to keep up my side of it otherwise she would lose her income you know from the sale of her items so what I did is I took everything I had made every time the season changes you take things out so I had a lot of inventory so I just put them in there no matter what the season was if it was like it was around October I would put Easter in I would have like a sale item and the other thing I did was — Q. You were switching your inventory? A. Right I wasn’t making anything. Q. Okay you weren’t making but you were switching inventory? A.
I just put it all in I didn’t even switch I just put it in anything I had at home from prior seasons I just kept putting it in the shop just to cover my rent and for any sales. Q. Okay so did you do that just one time or did you do that on a rotating basis? A. Once a month I would go in as I would go in see if there was you know anything in there that is all I would go in. Q. Okay and did you get any income from this? A.
Yes. Q. How much were you making on a monthly basis? A. [Inaudible a few words] here is for Ebeneezer Mill. Q. Okay I see.
A. And what I was doing for the majority of that is from inventory what I would do it take all of my material that I wasn’t going to make anything because I wasn’t making anything to reduce the inventory I took material and I rolled it up tied it and put it down two dollars or three dollars and I filled the whole bookcase that we had there just with my inventory to reduce my inventory. Q. Okay when did you do that? A. During the time that I was unemployed when I was going once a month I would just take in a whole bunch and just stick it on the shelf and the other c rafters would buy it. Q.
So when you were rolling up this fabric this was when you were unemployed also? A. Yes I wasn’t making anything it was my inventory. Q. Right I understand you weren’t creating anything but you were getting your inventory ready for sale? A.
Right I would do that like in the afternoon if I was going to go over there just take it all and take it in and put it in. Q. And put price tags on it and stuff? A. Right one dollar. Q. Okay so there is a list here transaction detail by account and it shows Maxine Walter highlighted and it shows from October 15 th 2000 through April 15 th 2001 a total of one thousand five hundred and one dollars and fifty nine cents that Ebeneezer Mills paid you? A.
Yes. Q. Okay now that how much were you paying them on a monthly basis for rent? A. Okay from October until January I was sharing half the rent I was paying sixty two fifty rent six dollars and twenty five cents advertising and then twenty five percent off of all my sales. And then in January because I wasn’t crafting we couldn’t keep up the booth and Mary couldn’t pay the extra money.
Q. January 2001? A. Yes we went to a smaller booth so that we could have a lower rent. Q. How much was the rent on that booth? A. Sixty two fifty thirty one twenty five and that is what we have right now until we are done.
Q. And that is thirty one twenty five a price? A. Yes a month. Q. And what about your arrangement with Hamburg? A.
With Hamburg Country Store I went in December of 2000 trying to get rid of some of the inventory that I had and I was paying twenty five dollars a month for two shelves. Q. And how long did you have that association with Hamburg Country Store? A. Until she just closed the store now and then in January — Q. When was the last time you paid rent? A. It would be April of 2002 so then of January of 2001 for Hamburg Country Store I had Mary come in with me because I couldn’t afford the rent and then she shared it with me and so we took a space were I could pay just fifteen dollars a month.
Q. At the Hamburg Country Store? A. Yes. Q. Starting in January of 2000? A.
2001. Q. 2001? A. Yes ma ” am so I would go in approximately once a month or once every six weeks and that was it.
Q. Now do you have a list of how much you earned from Hamburg Country store? A. It is on my taxes. Q.
Okay I see that Leans park Development Corporation? A. No that is Ebeneezer Mill they go by two names for some reason. Q. I don’t think I have anything here for Hamburg Country Store. A. I would just I think it was two hundred and something dollars yes about two hundred and something dollars for the whole time and then I would have to pay Mary out of that her portion so I probably made about seventy five eighty dollars.
Q. For the entire time that you were at Hamburg Country Store? A. It was a very small little tiny spot it was close to my house things that weren’t selling at Ebeneezer Mill to get rid of it well to sell it not get rid of it. Q.
Okay I am not sure why you stopped the crafting when you became unemployed can you explain that to me again? A. I was just depression in a way and — Q. Even though your grief counselor had told you that the crafting would be good for you? A. You see when my mother was dying for the last three years I was spending the nights at her house taking care of her and for the prior two years taking care of my dad so I wasn’t getting my sewing done and my father would always try to make me get my sewing machine bring it over to the house and all that but it became more of like I wasn’t taking care of them for the crafting and it became more that I couldn’t even look at it I am sorry. Q. That’s okay that is okay.
A. The anniversary of her death is in a week so I just I couldn’t do it and when you sew you have to be very meticulous and when you are doing the sewing and I couldn’t give it the attention anymore. You can.