
    JOSHUA C. AGSALUD, Director of the Department of Labor and Industrial Relations, Appellant, v. ATHALIE R. CLARKE, dba OLU PUA GARDENS, Appellee
    NO. 8909
    (CIVIL NO. 2349)
    MAY 9, 1983
    LUM, C.J., NAKAMURA, PADGETT, HAYASHI, JJ„ AND CIRCUIT JUDGE CHUN, ASSIGNED BY REASON OF VACANCY
   Per Curiam.

This is an appeal by the Director of the Department of Labor and Industrial Relations, State of Hawaii, from a determination by the Fifth Circuit Court which affirmed a decision by a referee for employment security appeals of the Department, the referee having reversed a determination by the unemployment insurance division of the Department that the appellee was not a farm under the statutory definition set forth in § 383-9, HRS. The effect of the decision below was to hold the appellee exempted from the provisions of the Hawaii Employment Security Law with respect to services performed by her employees. We reverse.

The enterprise run by appellee consists of 12-1/2 acres located at Kalaheo, Kauai, which is operated as an arboretum. An admission fee is charged to visitors of the gardens and the gate receipts account for 90% of the total revenues. The other 10% is derived 6% from rental income and 4% from the retail sale of plants.

Section 383-9, HRS, defines a farm as follows:

As used in this section, “farm” includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities and orchards.

James W. Laseter, Deputy Attorney General, on the brief for appellant.

Donald H. Wilson (Case, Kay & Lynch of counsel) on the brief for appellee.

We think it clear that appellee’s gardens, since they derive 90% of their income from fees charged to visitors to those gardens, are not used primarily for the purposes enumerated in the above definition.

Accordingly, the judgment below was erroneous as a matter of law and is reversed.  