STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST P. STEWARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1438

)

LEAR LIMITED, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in the Conference Room of the lower level of the Orlando Public Library, Orlando, Florida, on November 15, 1977, before Stephen

1. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   This case was presented upon the complaint of Ernest P. Stewart filed with the Department of Commerce that he was not paid the prevailing wage by Lear Limited, Inc. This matter was referred by the Department of Commerce to the Division of Administrative Hearings to conduct a formal hearing pursuant to Chapter 215 and Chapter 120, Florida Statutes.

   
   

   APPEARANCES

   
   

   For Petitioner: Ernest P. Stewart

   Appeared in his own behalf

   
   

   For Respondent: Seymour Benson

   605 East Robinson Street, Suite 320

   Orlando, Florida 32801 FINDINGS OF FACT

   1. Ernest P. Stewart was initially employed to work on the construction of the Lake County Correctional Facility by Howell and King, Inc., a subcontractor of Lear Limited, Inc.

      
      

   2. During the majority of employment by Howell and King, Inc., Ernest P. Stewart received the prevailing wage; however, for November 29, November 30, December 1, December 2, December 3, December 6, December 7, December 8, December 9, December 10, 1976, he was not paid for his work. This was the result of the inability of Howell and King, Inc., to meet its payroll.

      
      

   3. Subsequently, Lear Limited, Inc., directly employed Ernest P. Stewart and paid him at least the prevailing wage.

      
      

   4. The claimant's claim against Lear Limited, Inc., is based upon the representation of Mr. Gerald Tannenbaum, chief officer of Lear Limited, Inc., to him that he would "pick up" the men. Tannenbaum did subsequently directly employ Ernest P. Stewart paying him the prevailing wages as stated above. The

      claimant seeks to recover the wages unpaid by Howell and King, Inc., from Lear Limited.

      
      

   5. There was no evidence presented that Lear Limited bad withheld any moneys due Howell and King. Tannenbaum testified that he had paid Howell and King all moneys due it and advanced or loaned money to Howell and King against money due Howell and King on other jobs already completed.

      
      

      CONCLUSIONS OF LAW

      
      

   6. Section 215.19(3)(a)(1) provides that if a contractor or subcontractor fails to pay the prevailing wage, the employee may make a claim for payment against the employer. Howell and King was not named a party to this complaint although it was clearly the employer. However, the testimony establishes that Howell and King failed to pay any wages, and the claimant has a claim against Howell and King. In the absence of any evidence that Lear Limited owes Howell and King any moneys due for the job, Ernest P. Stewart cannot maintain a claim against Lear Limited, notwithstanding the jurisdictional problem that Howell and King was not a named party to this proceeding. However, Tannenbaum's testimony, which was uncontroverted, was that he had paid Howell and King all moneys due under Lear's contract with Howell and King and that Lear had advanced money to Howell and King against moneys due Howell and King for other projects. Therefore, even had Howell and King been named a party, recovery could not be had from Lear.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that this case be dismissed against Lear Limited with prejudice.

DONE and ORDERED this 7th day of December, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Seymour Benson, Esquire 605 E. Robinson Street Suite 320

Orlando, Florida 32801

Mr. Ernest P. Stewart 7615 58th Street North

Pinellas Park, Florida 33565

Docket for Case No: 77-001438

Orders for Case No: 77-001438