STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 31, 1974

Mr. Pat McKeever, Secretary
Department of Manpower Affairs
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-19

Barbers under certain conditions are independent contractors.

Dear Mr. McKeever :

You have submitted the following factual situation:

Earl's Barbers consists of a group of barbers working in one building or establishment. Earl owns the building, provides the utilities, does the advertising, etc., and rents some space and a chair to each of the other barbers. Earl receives a percentage of each barber's gross earnings as rental for the space and the chair. The Employment Security Division of the South Dakota Department of Manpower Affairs determined that the barbers in that building are employees for unemployment insurance tax purposes. Earl and the other barbers in the building contend that such other barbers are independent contractors. Each of the barbers in the building has obtained his own shop license.

You have requested an opinion on the following specific question:

Is each barber an independent contractor?

In Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503, the court said:

If the employee is merely subject to the control or direction of the employer as to the result to be obtained, he is an independent contractor; if he is subject to the control of the employer as to the means to be employed, he is not an independent contractor.

You have not submitted any information as to what control Earl has, as to how each barber shall perform his work, therefore, it is my opinion that unless there is a showing that there is some control, each barber is an independent contractor. Such an independent contractor should hold a sales tax permit as provided for in SDCL 10-45-24 and SDCL 10-45-25.

Respectfully submitted,

Kermit A. Sande
Attorney General