STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH D. COMBS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1524

) ACCO MECHANICAL CONTRACTORS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Fort Lauderdale, Florida, on November 14 and 15, 1978, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The Recommended Order in this case was delayed to permit the parties to discuss settlements and permit them the opportunity of filing briefs.

This case is presented on an affidavit of Keith Dwaine Combs alleging that Acco Mechanical Contractors, Inc., had failed to pay him the prevailing wage while he was employed on related construction projects at Broward Community College. Combs claimed that he worked a total of 320 hours at a wage of $5.50 per hour as a sheet metal worker, the prevailing wage for which was established by the Department of Commerce as $10.55 per hour

APPEARANCES

For Petitioner: L. Byrd Booth, Jr. Esquire

2900 East Oakland Park Boulevard Post Office Drawer 11088

Fort Lauderdale, Florida 33339

For Respondent: Jeff M. Brown, Esquire

3785 North Federal Highway Post Office Box 1138

Boca Raton, Florida 33432

ISSUE

The following issues were raised in the facts presented at hearing:

1. Was Combs' affidavit executed in accordance with provisions of Section 215.19, Florida Statutes?

   
   

2. Were the construction projects upon which Combs worked exempt from the provisions of Section 215.19, Florida Statutes?

   
   

3. Did Combs settle the claims presented?

FINDINGS OF FACT

1. Keith Dwaine Combs was an employee of Acco Mechanical Contractors, Inc., on three related projects at Broward County Community College, the trustees of which were the contracting authority. Combs' duties were those of a sheet metal worker. He was paid $5.50 per hour. The prevailing wage for these projects for sheet metal workers was $10.55 per hour as established by the Department of Commerce.

   
   

2. Combs worked 240 hours on these projects and prepared an affidavit claiming he was under paid $1,212. Combs then worked an additional 80 hours on a related prevailing wage job and amended his original affidavit by adding the additional 80 hours and $404 to the amount of his claim. Combs initiated these additions to his original affidavit and resigned the affidavit, claiming a total of $1,616. Combs did not have the affidavit renotarized after he had made the amendments.

   
   

3. Combs filed his claim with District Board of Trustees for Broward County Community College. Combs then entered into negotiations with Acco Mechanical Contractors, Inc., and eventually accepted payment of $597 less FICA and withholding taxes in settlement of his claims, and executed a release of all pending claims against Acco.

   
   

   CONCLUSIONS OF LAW

   
   

4. Acco Mechanical Contractors, Inc., has raised the legal issue that these projects were exempt from the prevailing wage requirements of Section 215.19, Florida Statutes, because of the exclusion contained in Section 235.32, Florida Statutes. Contracts for construction of educational facilities let by a board of trustees of a community college would be exempt from the provisions of Section 215.19, supra. It is clear that the contracts in question were let by the Board of Trustees of Broward County Community College. Therefore, the contracts and the contractors would be exempt pursuant to Section 235.32, supra.

   
   

5. Section 215.19, supra, provides that the claimant must file his claim with the contracting authority by affidavit. Combs did not have his amendments notarized. Combs merely initialed and resigned his original affidavit. An affidavit before a notary public is not legally executed unless attested to an published under seal of the notary's office. See State ex rel Richardson vs Lawrence, 163 So.231. Where new additional material is incorporated in an affidavit, it is necessary that the oath or affirmation be readministered. See

   3 Am. Jur. 2d, Affidavits, Section 28. The portion of Combs' claim which is amended is therefore void. Combs' claim for 80 hours and $404 is not validly presented.

   
   

6. Combs signed a release of his claim and accepted consideration from Acco in accord with their agreement. Section 215.19, supra, does not preclude a settlement. In fact, the procedures adopted by the Department of Commerce encourage discussion and settlement of prevailing wage claims. When Combs accepted the consideration paid him and signed the release, he settled all pending claims Performance by the parties to the release of any extrinsic agreements outside the written terms of the release are not a bar to the release itself. While this may appear harsh, Combs indicated his awareness of the law and his rights under it by filing his claim. In this instance Combs elected to settle for a portion of his claim which, in this instance, worked to his benefit.

RECOMMENDATION

The Hearing Officer recommends that the claim of Keith Dwaine Combs be denied.

DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

L. Byrd Booth, Jr., Esquire

2900 East Oakland Park Boulevard Post Office Drawer 11088

Fort Lauderdale, Florida 33339

Jeff M. Brown, Esquire 3705 North Federal Highway Post Office Box 1138

Boca Raton, Florida 33432

Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor

1321 Executive Center Drive, East Tallahassee, Florida 32301

Docket for Case No: 78-001524

Orders for Case No: 78-001524