Sess. p. 9.) The legislative history of the 1949 amendments and existing judicial pronouncements regarding section 13 (a) (2) of the Act, therefore, will offer guidance to the application of this definition. Section 779.313-REQUIREMENTS The statutory definition of the term "retail or service establishment" found in section 13 (a) (2), clearly provides that an establishment to be a "retail or service establishment": (a) Must engage in the making of sales of goods or services; and (b) 75 percent of its sales of goods or services, or of both, must be recognized as retail in the particular industry; and (c) not over 25 percent of its sales of goods or services, or of both, may be sales for resale. These requirements are discussed below in sections 779.314 through 779.335. MAKING SALES OF GOODS AND SERVICES "RECOGNIZED AS RETAIL" Section 779.314-"GOODS" AND "SERVICES" DEFINED The term "goods" is defined in section 3 (i) of the Act and has been discussed above in section 779.14. The Act, however, does not define the term "services." The term "services," therefore, must be given a meaning consistent with its usage in ordinary speech, with the context in which it appears and with the legislative history of the exemption as it explains the scope, the purposes and the objectives of the exemption. Although in a very general sense every business might be said to perform a service it is clear from the context and the legislative history that all business establishments are not making sales of "services" of the type contemplated in the Act, that is, services rendered by establishments which are traditionally regarded as local retail service establishments such as the restaurants, hotels, barber shops, repair shops, etc. (see sections 779.315 through 779.320). It is to these latter services only that the term "service" refers. Section 779.315-TRADITIONAL LOCAL The term "retail" whether it refers to establishments or to the sale of goods or services is susceptible of various interpretations. When used in a specific law it can be defined properly only in terms of the purposes and objectives and scope of that law. In enacting the section 13(a)(2) exemption, Congress had before it the specific object of exempting from the minimum wage and overtime requirements of the Act employees employed by the traditional local retail or service establishment, subject to the conditions specified in the exemption. (See statements of Rep. Lucas, 95 Cong. Rec. pp. 11004 and 11116, and of Sen. Holland, 95 Cong. Rec. pp. 12502 and 12506.) Thus, the term "retail or service establishment" as used in the Act denotes the traditional local retail or service establishment whether pertaining to the coverage or exemption provisions. Section 779.316-ESTABLISHMENTS OUTSIDE "RETAIL CONCEPT" NOT WITHIN STATUTORY DEFINITION; LACK FIRST REQUIREMENT The term "retail" is alien to some businesses or operations. For example, transactions of an insurance company are not ordinarily thought of as retail transactions. The same is true of an electric power company selling electrical energy to private consumers. As to establishments of such businesses, therefore, a concept of retail selling or servicing does not exist. That it was the intent of Congress to exclude such businesses from the term "retail or service establishment" is clearly demonstrated by the legislative history of the 1949 amendments and by the judicial construction given said term both before and after the 1949 amendments. It also should be noted from the judicial pronouncements that a "retail concept" cannot be artificially created in an industry in which there is no traditional concept of retail selling or servicing. (95 Cong. Rec. pp. 1115, 1116, 12502, 12506, 21510, 14877, and 14889; Mitchell v. Kentucky Finance Co., 359 U.S. 290; Phillips Co. v. Walling, 324 U.S. 490; Kirschbaum Co. v. Walling, 316, U.S. 517; Durkin v. Joyce Agency, Inc., 110 F. Supp. 918 (N.D. Ill.) affirmed sub nom Mitchell v. Joyce Agency, Inc., 348 U.S. 945; Goldberg v. Roberts d/b/a Typing & Mailing Unlimited, 15 WH Cases 100, 42 LC Par. 31, 126 (CA-9); Telephone Answering Service v. Goldberg, 15 WH Cases 67, 42 LC Par. 31, 104 (CA-1).) It is plain, therefore, that the term "retail or service establishment" as used in the Act does not encompass establishments in industries lacking a "retail concept". Such establishments not having been traditionally regarded as retail or service establishments cannot under any circumstances qualify as a "retail or service establishment" within the statutory definition of the Act, since they fail to meet the first requirement of the statutory definition. Section 779.317-PARTIAL LIST OF ESTABLISHMENTS LACKING "RETAIL CONCEPT" There are types of establishments in industries where it is not readily apparent whether a retail concept exists and whether or not the exemption can apply. It, therefore, is not possible to give a complete list of the types of establishments that have no retail concept. It is possible, however, to give a partial list of establishments to which the retail concept does not apply. This list is as follows: Booking agencies for actors and concert artists. Bottling and bottling equipment and canning machinery; establishments engaged in the business of dealing in. Brokers, custom house; freight brokers; insurance Burglar alarms; establishments engaged in furnishing, installing and repairing for commercial establishments (Walling v. Thompson, 65 F. Supp. 686 (S.D. Calif.)). Burial associations. Butchers' equipment; establishments engaged in the business of dealing in. Chambers of Commerce. Chemical equipment; establishments engaged in the business of dealing in. Contract Post Offices. Credit companies, including small loan and personal loan companies (Mitchell v. Kentucky Finance Co., 359 U.S. 290). Credit rating agencies. Dentists supply and equipment establishments. Detective agencies. Drydock companies. Dye houses, commercial (Walling v. Kerr, 47 F. Supp. 852 (E.D. Pa.)). Duplicating, addressing, mailing, mail listings and letter stuffing establishments (Goldberg v. Roberts dba Typing and Mailing Unlimited, 15 W.H. Cases 100, 42 L.C. par. 31,126 (CA-9); Durkin v. Shone, 112 F. Supp. 375 (E.D. Tenn.); Hanzely v. Hooven Letters, 44 N.Y.S. 2d 398 (City Ct. N.Y. 1943)). Electric and gas utilities (Meeker Cooperative Light & Power Assn. v. Phillips, 158 F. 2d 698 (CA-8); New Mexico Public Service Co. v. Engel, 145 F. 2d 636 (CA-10); Brown v. Minngas Co., 51 F. Supp. 363 (D. Minn.)). Electric signs; establishments engaged in making, installing and servicing. Elevators; establishments engaged in repairing (Cf. Muldowney v. Seaberg Elevator Co., 39 F. Supp. 275 (E.D. N.Y.)). Employment Agencies (Yunker v. Abbye Employment Agency, Inc., 32 N.Y.S. 2d 715 (N.Y.C. Munic. Ct. 1942)). Engineering firms. Factors. Filling station equipment; establishments engaged in the business of dealing in. Geological surveys; firms engaged in making. Hospital equipment (such as operating instruments, X-ray machines, operating tables, etc.); establishments engaged in the business of dealing in. Insurance; mutual, stock and fraternal benefit, including insurance brokers, agents, and claims adjustment offices. Investment counselling firms. Jewelers' equipment; establishments engaged in the business of dealing in. Job efficiency checking and rating; establishments engaged in the business of supplying. Labor unions. Laboratory equipment; establishments engaged in the business of dealing in. Laundry; establishments engaged in the business of dealing in commercial laundry equipment. Lawyers' offices. Legal concerns engaged in compiling and distributing information regarding legal developments. License and legal document service firms. Loft buildings or office buildings; concerns engaged in renting and maintenance of (Kirschbaum v. Walling, 316 U.S. 517; Statement of Senator Holland, 95 Cong. Rec., p. 12505). Machinery and equipment, including tools-establishments engaged in selling or servicing of construction, mining, manufacturing, and industrial machinery, equipment and tools (Roland Electric Co. v. Walling, 326 U.S. 657; Guess v. Montague, 140 F. 2d 500 (CA-4); cf. Walling v. Thompson, 65 F. Supp. 686 (S.D. Calif.)). Medical and dental laboratories. Medical and dental laboratory supplies; establishments engaged in the business of dealing in. Messenger; firms engaged in furnishing commercial messenger service (Walling v. Allied Messenger Service, 47 F. Supp. 774 (S.D. N.Y.)). Oil-well drilling; companies engaged in contract oilwell drilling. Oil-well surveying firms (Straughn v. Schlumberger Well Surveying Corp., 72 F. Supp. 511 (S.D. Tex.)). Packing companies engaged in slaughtering livestock (Walling v. Peoples Packing Co., 132 F. 2d 236 (CA-10)). Pharmacists' supplies; establishments engaged in the business of dealing in. Plumbers' equipment; establishments engaged in the business of dealing in. Press clipping bureaus. Printers' and lithographers' supplies; establishments engaged in the business of dealing in. Printing and binding establishments (Casa Baldrich, Inc. v. Mitchell, 214 F. 2d 703 (CA-1)). Protection and Shopping services for industry; establishments engaged in supplying (Durkin v. Joyce Agency, Inc., 110 F. Supp. 918 (N.D. Ill.) affirmed sub norm. Mitchell v. Joyce Agency, Inc., 348 U.S. 945). Quarries (Walling v. Partee, 3 W.H. Cases 543, 7 Labor Cases, par. 61, 721 (M.D. Tenn.)). Radio and Television broadcasting stations and studios. Real estate companies. Security dealers. Ship equipment, commercial; establishments engaged in the business of dealing in. Sign-painting shops. Stamp and coupon redemption stores. Statistical reporting, business and finanical data; establishments engaged in furnishing. Store equipment; establishment engaged in the business of dealing in. Telegraph companies. Telephone companies; (Schmidt v. Peoples Telephone Union of Maryville, Mo., 138 F. 2d 13 (CA-8)). Telephone answer service; establishments engaged in furnishing (Telephone Answering Service v. Goldberg, 15 W.H. Cases 67, 4 L.C. Par. 31,104 (CA-1)). Title and abstract companies. Tobacco auction warehouses (Fleming v. Kenton Loose Leaf Tobacco Warehouse Co., 41 F. Supp. 255 (E.D. Ky.); Walling v. Lincoln Loose Leaf Warehouse Co., 59 F. Supp. 601 (E.D. Tenn.)). Toll bridge companies. Trade associations. Undertakers' supplies; establishments engaged in the business of dealing in. Warehouse companies; commercial or industrial (Walling v. Public Quick Freezing and Cold Storage Co., 62 F. Supp. 924 (S.D. Fla.)). Warehouse equipment and supplies; establishments Water supply companies (Reynolds v. Salt River Valley Section 779.318-CHARACTERISTICS AND Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process. (See, however, the discussion of section 13(a)(4) in sections 779.346 to 779.351.) Such an establishment sells to the general public its food and drink. It sells to such public its clothing and its furniture, its automobiles, its radios and refrigerators, its coal and its lumber, and other goods, and performs incidental services on such goods when necessary. It provides the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living. Illustrative of such establishments are: Grocery stores, hardware stores, clothing stores, coal dealers, furniture stores, restaurants, hotels, watch repair establishments, barber shops, hospitals, valet shops, and other such local establishments. Section 779.319-A RETAIL OR SERVICE ESTABLISHMENT MUST BE OPEN TO GENERAL PUBLIC The location of the retail or service establishment, whether in an industrial plant, an office building, a railroad depot, or a government park, etc., will make no difference in the application of the exemption and such an establishment will be exempt if it meets the tests of the exemption. Generally, however, an establishment, wherever located, will not be considered a retail or service establishment within the meaning of the Act, if it is not ordinarily available to the general consuming public. An establishment, however, does not have to be actually frequented by the general public in the sense that the public must actually visit it and make purchases of goods or services on the premises in order to be considered as available and open to the general public. A refrigerator repair service shop, for example, is available and open to the general public even if it receives all its orders on the telephone and performs all of its repair services on the premises of its Billiard parlors. China, glassware stores. Confectionery stores. Delicatessen stores. Department stores. Dress-suit rental establishments. Dry goods stores. Embalming establishments. Farm implement dealers. Filling stations. Floor covering stores. Funeral homes. Fur repair and storage shops. Furniture stores. Gift, novelty and souvenir shops. Grocery stores. Hardware stores. Hosiery shops. Section 779.320a-INAPPLICABILITY OF "RETAIL CONCEPT" TO SOME TYPES OF SALES OR SERVICES OF AN ELIGIBLE ESTABLISHMENT (a) Only those sales or services to which the retail concept applies may be recognized as retail sales of goods or services for purposes of the exemption. (b) An establishment is, of course, not automatically exempt upon a finding that it is of the type to which the retail concept of selling or servicing is applicable; it must meet all the tests specified in the Act in order to qualify for exemption. Thus, for example, an establishment may be engaged in repairing household refrigerators, and in addition it may be selling and repairing manufacturing machinery for manufacturing establishments. The retail concept does not apply to the latter activities. In such case, the exemption will not apply if the annual dollar volume derived from the selling and servicing of such machinery, and from any other sales and services which are not recognized as retail sales or services, and from sales of goods or services for resale exceeds 25 percent of the establishment's total annual dollar volume of sales of goods or services. [28 F.R. 9256 August 22, 1963] "RECOGNIZED" AS RETAIL "IN THE PARTICULAR INDUSTRY" Section 779.321-SECOND REQUIREMENT FOR QUALIFYING AS A "RETAIL OR SERVICE ESTABLISHMENT" If the business is one to which the retail concept is applicable then the second requirement for qualifying as a "retail or service establishment" within that term's statutory definition is that 75 percent of the establishment's annual dollar volume must be derived from sales of goods or services (or of both) which are recognized as retail sales or services in the particular industry. In applying this requirement it must be determined whether the sales or services of an establishment are recognized as retail sales or services in the particular industry. To do this we must inquire into what is meant by the terms "recognized" and "in the particular industry," and into the functions of the Secretary and the courts in determining whether the sales are recognized as retail in the industry. Section 779.322-PARTICULAR INDUSTRY In order to determine whether a sale or service is recognized as a retail sale or service in the "particular industry" it is necessary to identify the "particular" industry to which the sale or service belongs. Some situations are clear and present no difficulty. The sale of clothes, for example, belongs to the clothing industry and the sale of ice belongs to the ice industry. In other situations, a sale or service is not so easily earmarked and a wide area of overlapping exists. Household appliances are sold by public utilities as well as by department stores and by stores specializing in the sale of such goods; and tires are sold by manufacturers' outlets, by independent tire dealers and by other types of outlets. In these cases, a fair determination as to whether a sale or service is recognized as retail in the "particular" industry may be made by giving to the term "industry" its broad statutory definition as a "group of industries" and thus including all industries wherein a significant quantity of the particular product or service is sold. For example, in determining whether a sale of lumber is a retail sale, it is the recognition the sale of lumber occupies in the lumber industry generally which decides its character rather than the recognition such sale occupies in any branch of that industry. Section 779.323-RECOGNITION "IN" The express terms of the statutory provision requires the "recognition" to be "in" the industry and not "by" the industry. Thus, the basis for the determination as to what is recognized as retail "in the particular industry" is wider and greater than the views of an employer in a trade or business, or an association of such employers. It is clear from the legislative history and judicial pronouncements that it was not the intent of this provision to delegate to employers in any particular industry the power to exempt themselves from the requirements of the Act. It was emphasized in the debates in Congress that while the views of an industry are significant and material in determining what is recognized as a retail sale in a particular industry, the determination is not dependent on those views alone. (See 93 Cong. Rec. pp. 12,501, 12,502, and 12,510; Mitchell v. City Ice Co., 273 F. 2d 560 (CA-5); Durkin v. Casa |