Judges: LINDA M. RIGOT
Agency: Agency for Workforce Innovation
Latest Update: May 06, 1980
Summary: Did the Petitioner prove that the work was subject to the provisions of Section 215.19, Florida Statues? What number of hours and for what wage did Petitioner work on the project? Did the Petitioner file a timely affidavit?Petitioner failed to prove entitlement to a higher wage. Dismiss petition.
79-2227.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BENEDICT MATULLO, )
)
Petitioner, )
)
vs. ) CASE NO. 79-2227
)
ACCO, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard on January 30, 1980, by Linda M. Rigot, assigned Hearing Officer of the Division of Administrative Hearings, in West Palm Beach, Florida. This case was presented upon an affidavit filed by Benedict Matullo asserting that he had not been paid the prevailing wage by Acco Mechanical Contractors, Inc., as required by law, while working on the Ralph R. Bailey Concert Hall at Broward Community College.
Based upon the testimony and evidence received at the hearing, the following issues of fact and law have been raised:
Did the Petitioner prove that the work was subject to the provisions of Section 215.19, Florida Statutes?
What number of hours and for what wage did the Petitioner work on the project?
Did the Petitioner file a timely affidavit?
Petitioner appeared in propria persona. L. Byrd Booth, Jr., Esquire, 2900 East Oakland Park Boulevard, Post Office Drawer 11088, Fort Lauderdale, Florida 33301, appeared on behalf of Respondent.
FINDINGS OF FACT
Petitioner began working for the Respondent on the Ralph R. Bailey Concert Hall at the end of November or the beginning of December, 1977, terminated such employment in July, 1978, and again worked for the Respondent on the above-described project on three Saturdays between August of 1978 and the date he last worked for the Respondent, which date was either September 24, 1978, or sometime during the month of October, 1978.
Petitioner's affidavit claiming noncompliance with the Florida Prevailing Wage Law was signed on April 27, 1979, and was received by the Business Affairs Office of Broward Community College on April 30, 1979.
No testimony was presented regarding the date of completion or acceptance of the building.
CONCLUSIONS OF LAW
Petitioner's claim is based upon Section 215.19, Florida Statutes, under which statute an employee may make a claim against his employer on a construction contract in excess of $5,000 when the State, any county, or municipality in the State, or any political subdivision of the State or other public agency or authority is a party if the employee is not paid the prevailing wage as determined by the Division of Labor of the Department of Commerce.
The burden lies with the employee to prove every allegation upon which his claim is based. The necessary allegations include:
The fact that the employee was employed by the employer;
The fact that the construction involved was a public building or public work as described in Section 215.19, Florida Statutes;
The established prevailing wage for the position in which the employee alleges he worked;
The duties regularly performed by one in the position in which the employee alleges he was employed and by virtue of which he seeks to recover additional wages; and
The wages actually received by the employee and the hours worked by the employee on the construction in question.
The record reveals no proof that the project was one qualifying under Section 215.19, the established prevailing wage, the duties performed by the Petitioner/employee, the actual wages received by the employee, or the hours worked by the employee herein. Accordingly, the employee herein has failed to establish substantially all allegations required to prove his claim.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Hearing Officer recommends that this claim be dismissed.
DONE AND ENTERED this 13th day of February, 1980, in Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Mr. Benedict Matullo
341 N.W. 39th Street
Pompano Beach, Florida 33064
Byrd Booth, Jr., Esquire
2900 East Oakland Park Boulevard Post Office Drawer 11088
Fort Lauderdale, Florida 33301
Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor
1321 Executive Center Circle, East Tallahassee, Florida 32301
Mr. Sidney H. Levin Secretary of Commerce 510C Collins Building
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR
BENEDICT MATULLO,
Petitioner,
vs. CASE NO. 79-2227
ACCO, INC.,
Respondent.
/
FINAL ADMINISTRATIVE ORDER
This cause has come before the undersigned Director of the Division of Labor for final determination pursuant to Section 215.15(3)(b), Florida Statutes, upon the Hearing Officer's Recommended Order. After notice to the parties, an administrative hearing was held on January 30, 1980 by Linda M. Rigot, Hearing Officer of the Division of Administrative Hearings in West Palm Beach, Florida. This matter wan heard upon an affidavit filed by Benedict Matullo alleging that he had not been paid the prevailing wage by Acco Mechanical Contractors, Inc., as required by law, while working on the Ralph R. Bailey Concert Hall at Broward Community College. The Petitioner filed a letter dated March 7, 1980, which was treated as a petition for rehearing. The petition for rehearing was considered and is denied.
ISSUES
Did the Petitioner prove that the work was subject to the provisions of Section 215.19, Florida Statues?
What number of hours and for what wage did Petitioner work on the project?
Did the Petitioner file a timely affidavit?
FINDINGS OF FACT
Petitioner began working for the Respondent on the Ralph R. Bailey Concert Hall at the end of November or the beginning of December, 1977, terminated such employment in July, 1978, and again worked for the Respondent on the above-described project on three Saturdays between August of 1978 and the date he last worked for the Respondent, which date was either September 24, 1978, or sometime during the month of October, 1978.
Petitioner's affidavit claiming noncompliance with the Florida Prevailing Wage Law was signed on April 27, 1979, and was received by the Business Affairs Office of Broward Community College on April 30, 1979.
No testimony was presented regarding the date of completion or acceptance of the building.
CONCLUSIONS OF LAW
Petitioner's claim is based upon Section 215.19, Florida Statutes, under which statute an employee may make a claim against his employer on a construction contract in excess of $5,000 when the State, any county, or municipality in the State, or any political subdivision of the State or other public agency or authority is a party if the employee is not paid the prevailing wage as determined by the Division of Labor of the Department of Labor and Employment Security.
The burden lies with the employee to prove every allegation upon which his claim is based. The necessary allegations include:
The fact that the employee was employed by the employer;
The fact that the construction involved was a public building or public work as described in Section 215.19, Florida Statutes;
The established prevailing wage for the position in which the employee alleges he worked;
The duties regularly performed by one in the position in which the employee alleges he was employed and by virtue of which he seeks to recover additional wages; and
The wages actually received by the employee and the hours worked by the employee on the construction in question.
The record reveals no proof: that the project was one qualifying under Section 215.19, the established prevailing wage, the duties performed by the Petitioner/employee, the actual wages received by the employee, or the hours
worked by the employee herein. Accordingly, the employee herein has failed to establish substantially all allegations required to prove his claim.
WHEREFORE, based upon a consideration of the Recommended Order submitted in the cause and upon examination of the record, it is hereby
ORDERED AND ADJUDGED that Petitioner's claim be denied and the contracting authority shall pay to the contractor the money it has withheld pending determination of this claim.
DONE AND ORDERED this 2nd day of May, 1980 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:
Mr. Benedict Matullo
341 N.W. 39th Street
Pompany Beach, Florida 33064
L. Byrd Booth, Jr., Esquire
2900 East Oakland Park Boulevard Post Office Drawer 11088
Fort Lauderdale, Florida 33301
Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor
1321 Executive Center Circle, East Tallahassee, Florida 32301
Linda Rigot Hearing Officer
101 Collins Building Tallahassee, Florida 32301
Docket for Case No: 79-002227
Orders for Case No: 79-002227
