STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLAN V. JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-291

) ACCO MECHANICAL CONTRACTORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on June 6, 1979, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Fort Lauderdale, Florida. This case was presented upon a petition and affidavit filed by Allan V. Jackson asserting that he had not been paid the prevailing wage as required by law by Acco Mechanical Contractors, Inc. while working on the Criminal Justice Building at Broward County Community College.

Based upon the testimony and evidence received at the hearing and argument of Counsel, the following issues of fact and law have been raised:

1. Did the Petitioner prove that the work was subject to the provisions of Section 215.19, Florida Statutes?

   
   

2. What number of hours and for what wage did the Petitioner work on the project?

   
   

3. Did the Petitioner file a timely affidavit?

APPEARANCES

For Petitioner: Ted P. Galatis, Esquire

420 Sunrise Professional Building 915 Middle River Drive

Fort Lauderdale, Florida 33304

For Respondent: L. Byrd Booth, Jr., Esquire

Post Office Drawer 11088

Fort Lauderdale, Florida 33392 FINDINGS OF FACT

1. The Petitioner, Allan V. Jackson, was an employee of Acco Mechanical Contractors, Inc. (Acco) and did work on the Criminal Justice Building at Broward County Community College from the week ending July 7, 1977, until April 30, 1978.

2. Acco was a subcontractor in construction of the Criminal Justice Building installing, among other things, plumbing relating to construction of the building.

   
   

3. Jackson worked as a plumber on the construction of the Criminal Justice Building.

   
   

4. The total wages paid Jackson by Acco were in excess of $5,000. The Board of Trustees of Broward County Community College is a public agency and was contracting authority for construction of the Criminal Justice Building at Broward County Community College. The value of the contract for construction of the Criminal Justice Building equaled or exceeded the wages paid Jackson. The Criminal Justice Building is a public building constructed under a contract to which a public agency was a party.

   
   

5. A prevailing wage determination was made by Luther Moore, Administrator of Prevailing Wage, for the Criminal Justice Building contract. The prevailing wage for plumbers on this contract was $10.65.

   
   

6. Jackson was paid various wages while employed by Acco on construction of the Criminal Justice Building. Jackson worked the number of hours Indicated below for the wage indicated:

   
   

   WAGE: $	6.00	$ 9.00	$ 7.75	$10.12	$ 7.50	$ 8.25
   HOURS:	87.5	119	378	32	24	182

   
   

7. Jackson was underpaid a total of 2,364.93 for his work on the Criminal Justice Building, as indicated below:

   
   

   DIFFERENCE
   IN WAGE: $ 4.65	$ 1.65	$ 3.25	$ .65	$ 3.15	$ 2.40
   HOURS: 87.5	119	378	32	24	182
   TOTAL: $406.88	$196.35	$1,225.50	$20.00	$75.60	$436.80

   
   

8. Jackson filed a claim with the architect on or about June 12, 1978. See Petitioner's Exhibit 1. This was returned to Jackson by letter dated July 21, 1978, from Luther Moore, to whom the architect had forwarded Jacksons's claim. See Exhibit 3. On October 16, 1978, Jackson filed his affidavit of claim with the Board of Trustees of Broward County Community College. See

   Exhibit 2. This last claim was acknowledged by the college on October 20, 1978, by letter of Clinton Hamilton to John Creswell of Creswell Construction Company, which stated that an amount of $6,249.18 was being withheld until the wage dispute is satisfactorily resolved. See Hearing Officer's Exhibit 1.

   
   

9. Jackson has presented a valid claim for nonpayment of the prevailing wage, and the evidence reflects that he was underpaid a total of $2,364.93.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 219.19, Florida Statutes, provides that any contract of a value in excess of $5,000 for repair or construction of a public building to which any public agency is a party shall contain a provision that the wages paid shall nor be less than the prevailing wage.

11. The Respondent asserts that the evidence does not support that this contract was for more than $5,000 and was for a public works job. Respondent is correct that there is no direct evidence presented; however, there is a great deal of general testimony and evidence that the contract for the construction of the Criminal Justice Building at Broward County Community College was a public works job and exceeded a value of $5,000. Concerning the value of the contract, the testimony of the Petitioner and evidence presented by Acco regarding wages paid to Petitioner show that he was paid in excess of $5,000 for the work he alone did on the Criminal Justice Building. Similarly, the evidence indicates that the contracting authority was the Board of Trustees of Broward County Community College. Clearly, the Trustees could not contract for construction of a private building at this college. Further, Jackson's description of the work done by him shows that substantial quantities of materials were used on the job. Acco is not a charitable organization, and the Hearing Officer concludes that the contract for construction of the Criminal Justice Building exceeded a value of $5,000, the wages paid Jackson, and that the Criminal Justice Building was a public works project.

    
    

12. Acco's own records reveal that Jackson was underpaid $2,364.93 for work performed on the Criminal Justice Building. Jackson's records are incomplete and do not contain sufficient data to determine whether all the work he performed was on the Criminal Justice Building contract. The record reflects that Acco was engaged in other contracts at the college, and it cannot be determined whether work done by Jackson outside the Criminal Justice Building was allocatable to the Criminal Justice Building or one of the other Acco contracts.

    
    

13. Acco argues that Jackson was late in filing his claim and that his claim is barred. The facts show that Jackson was late in filing his claim; however, Jackson's claim was accepted by the contracting authority, which advised the contractor it was withholding the controverted sum.

    
    

14. It is clear that the time limit stated in Section 215.19, Florida Statutes, is to permit the withholding of monies by the contracting authority to satisfy prevailing wage claims. Were it not for the letter confirming that monies were being withheld, it would be appropriate to dismiss Jackson's claim because acceptance of his claim could potentially impair any valid claim filed prior to his. However, his late filing should not be an absolute bar to his claim where monies were withheld.

    
    

15. There is testimony in the record which would indicate a possibility that the funds withheld by the contracting authority are insufficient to meet the claims against them. If this in fact occurs, Jackson's claim should take priority over any claim on these monies by Acco for excess monies withheld on prior claims. Jackson's claim, however, should be subordinate to any claim filed prior in time to his. This procedure resolves this claim administratively without the necessity of resorting to another forum to collect monies due Jackson from Acco or the college if insufficient monies have been withheld.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that a final order by entered directing that Allan V. Jackson receive $2,364.93 from monies withheld on the Criminal Justice Building contract, taking after any claims filed prior to his claim but ahead of Acco for any monies due Acco after resolution of prior claims.

DONE and ORDERED this 3rd day of July, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Ted P. Galatis, Esquire

420 Sunrise Professional Building 915 Middle River Drive

Fort Lauderdale, Florida 33304

1. Byrd Booth, Jr., Esquire Post Office Drawer 11088

   Fort Lauderdale, Florida 33302

   
   

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

   1321 Executive Center Drive, East Tallahassee, Florida 32301

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR

   
   

   ALLAN V. JACKSON,

   
   

   Petitioner,

   
   

   vs. CASE NO. 79-291

   
   

   ACCO MECHANICAL CONTRACTORS, INC.,

   
   

   Respondent.

   /

   FINAL ADMINISTRATIVE ORDER

   
   

   This cause has come on before the undersigned Director of the Division of Labor for final determination pursuant to Section 215.19(3)(b), Florida Statutes, upon the Hearing Officer's Recommended Order. After notice to the parties, an administrative hearing was held on June 6, 1979 by Stephen F. Dean, Hearing Officer of the Division of Administrative Hearings, in Fort Lauderdale, Florida. This matter was heard upon a petition and affidavit filed by Allan V. Jackson alleging that he had not been paid the prevailing wage as required by Section 215.19, Florida Statutes, by Acco Mechanical Contractors, Inc. while working in the Criminal Justice Building at Broward Community College. The Respondent herein filed a Petition for Rehearing with the Hearing Officer which was denied. Respondent now requests that said Petition be treated as exception to the earing Officer's Recommended Order.

   
   

   ISSUES

   
   

   1. Did the Petitioner prove that the work was subject to the provisions of Section 215.19, Florida Statutes?

      
      

   2. How many hours and at what wage rate did the Petitioner work on the project?

      
      

   3. Did the Petitioner file a timely affidavit?

      
      

   4. Whether the job in question was exempt from Section 215.19, Florida Statutes by Section 235.32, Florida Statutes an asserted in Respondent's exception to the Recommended Order?

FINDINGS OF FACT

1. The Petitioner, Allan V. Jackson, was an employee of Acco Mechanical Contractors, Inc. (ACCO) and did work on the Criminal Justice Building at Broward Community College from the week ending July 7, 1977 until April 30, 1978.

   
   

2. ACCO was a subcontractor in construction of the Criminal Justice Building installing, among other things, plumbing relating to construction of the building.

   
   

3. Jackson worked for ACCO as a plumber on the construction of the Criminal Justice Building.

   
   

4. The total wages paid Jackson by ACCO were in excess of $5,000. The Board of Trustees of Broward Community College is a public agency and was the contracting authority for construction of the Criminal Justice Building at Broward Community College. The value of the contract for construction equalled or excluded the wages paid Jackson. The Criminal Justice Building is a public building contracted under a contract to which a public agency was a party.

   
   

5. A prevailing wage determination was made by Luther Moore, Administrator of Prevailing Wage, for the Criminal Justice Building contract. The prevailing wage for plumbers on this contract was $10.65.

6. Jackson was paid various wages while employed by ACCO on construction of the Criminal Justice Building. Jackson worked the following number of hours at the wage indicated:

   
   

   Wage: $6.00	$9.00 $7.75	$10.12	$7.50	$8.25
   Hour: 875	119 378	32	24	182

   
   

7. The difference between what was paid to Jackson and the prevailing wage totals $2,364.93. This is the total of the differences in `7age paid to Jackson and the prevailing wage at each of the different rates Jackson was paid.

   
   

8. Jackson filed a claim on or about June 12, 1978 with an architect C. R. Yates who is Design and Construction Coordinator for the Department of Health & Rehabilitative Services. The Department of Health & Rehabilitative Services was not the contracting authority for the Broward Community College Criminal Justice Building project. This claim was returned to Jackson by letter dated July 21, 1978 from Luther Moore, to whom the architect had forwarded Jackson's claim. On October 16, 1978, Jackson filed his affidavit of claim with the Board of Trustees of Broward Community College. This last claim was acknowledged by the college on October 20, 1978 by letter of Clinton Hamilton to John Creswell of Creswell Construction Company which stated an amount of $6,249.18 was being withheld until the wage dispute is resolved.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 215.19, Florida Statutes, provides that any contract of a value in excess of $5,000 for repairs or construction of a public building to which any public agency is a party shall contain a provision that the wages paid shall not be less than the prevailing wage.

   
   

10. Section 215.19(3)(a)2. further requires that an aggrieved employee file with the contracting authority his affidavit alleging noncompliance within thirty (30) days of the last alleged noncompliance.

    
    

11. In the present case, the employee was employed by ACCO from the week ending July 7, 1977, until April 30, 1978. Jackson filed his affidavit on or about June 12, 1978 with the Department of Health & Rehabilitative Services. After having that affidavit returned so that it could be filed with the correct contracting authority, Jackson filed the affidavit with the contracting authority, Broward Community College, on October 16, 1978. Since Jackson left the employ of ACCO in April 30, 1978, that date is the last possible date for alleged noncompliance. The affidavit was filed June 12, 1978 with the Department of Health & Rehabilitative Services and on October 16, 1978 with the correct contracting authority, Broward Community College, and was therefore not filed with the contracting authority within the time period required of Section 215.19(3)(a) 2., Florida Statutes.

    
    

12. Inasmuch as this employee has failed to file a claim in accordance with the requirements of Section 215.19(3)(a)2., his claim is barred by the statute. It is therefore unnecessary to address the other issues present in this cause in that they are now moot.

WHEREFORE, based upon a consideration of the Recommended Order and Respondent exception to the Recommended Order submitted in this cause and upon examination of the record, it is hereby

ORDERED AND ADJUDGED that Petitioner's claim is hereby denied and that the contracting authority shall pay to the contractor the money it has withheld pending determination of this claim.

DONE AND ORDERED this 21st day of September, 1979, in Tallahassee, Leon County, Florida.

STEVEN H. CAMPORA, Director

Division of Labor STATE OF FLORIDA

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY

1321 Executive Center Drive, East Suite 200 - Ashley Building Tallahassee, Florida 32301

COPIES FURNISHED:

Ted P. Galatis, Esquire Attorney for Petitioner

420 Sunrise Professional Building 915 Middle River Drive

Fort Lauderdale, Florida 33304

L. Byrd Booth, Jr., Esquire Post Office Drawer 11088

Fort Lauderdale, Florida 33302

Luther J. Moore

Administrator of Prevailing Wage Division of Labor

1321 Executive Center Drive, East Tallahassee, Florida 32301

Stephen F. Dean Hearing Officer

Division of Administrative Hearings Room 101 - Collins Building Tallahassee, Florida 32304

Docket for Case No: 79-000291

Orders for Case No: 79-000291