STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALDINE C. CARTER, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1383

)

SHERBA BROTHERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 27, 1978, in Miami, Florida.

APPEARANCES

For Respondent: Litman, Muchnick & Wasserman

By Jeffrey P. Wasserman, Esquire 5950 Washington Street

Hollywood, Florida 33023

For Petitioner: Aldine C. Carter

Appearing in Proper Person

The Petitioner, Aldine C. Carter, filed a claim herein contending that the Respondent, Sherba Brothers, Inc., owed him $1,446.62, representing wages due based on the Respondent's failure to comply with the prevailing wage rate in the local area (Dade County).

ISSUE

The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes.

Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:

FINDINGS OF FACT

1. The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25).

   The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and

   Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing.

   
   

2. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

4. The authority of the Department of Commerce, Division of Labor, is derived from Chapter 215, Florida Statutes.

5. Chapter 215.19(3)(a)1, Florida Statutes, provides in pertinent part that:

   
   

   Any subcontractor [failing] to comply with this section relative to the payment of pre- vailing wages, any aggrieved employee on behalf of himself, . . . .shall make such fact known to the contracting authority,

   . . . by written sworn affidavit . . . set- ting forth the name of the alleged noncomply- ing contractor or subcontractor, the name of the contracting authority, . . . the employee job classification, the number of hours . . . employed, the amount of wages paid the employee by the contractor or subcontractor and the amount claimed . . . to be due and unpaid by the . . . subcontractor.

   
   

   The above provisions goes on to read in pertinent part that the affidavit shall be filed with the contracting authority within 30 days from the last date of alleged noncompliance, and in no event shall such affidavit be filed more than

   30 days after the completion and acceptance of the public work contracted for. Chapter 215.19(2) Florida Statutes.

   
   

6. Based on the foregoing findings of fact and an analysis of the above cited sections of Chapter 215.19(3)(a)1 and 2, it thus appears that the Petitioner here has filed a timely claim since be complied in all pertinent and material respects to the filing requirements set forth above. Specifically, no evidence was offered to rebut the Petitioner's showing that he filed his claim within 30 days after the completion and acceptance of this public project. As a matter of fact, the Petitioner filed his claim prior to the final payment that was made to the contractor and subcontractor by the contracting authority. In all other respects, particularly those factors such as the classification of employment, the number of hours worked and the amount paid including the amount due under the prevailing wage rate as was to be posted, I find that the Petitioner established such facts without rebuttal. I therefore conclude that the Respondent failed to rebut the Petitioner's showing that the prevailing wage rate was not paid him as claimed. Accordingly, the Petitioner is entitled to the amount of $1,446.62 as claimed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein.

RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

ENDNOTE

1/ Respondent raised the defense of estoppel based on Petitioner's acceptance of the lower rate of pay. This defense was considered by the undersigned and rejected based on the obligatory terms of Chapter 215.19(1)(a), Florida Statutes.

COPIES FURNISHED:

Jeffrey P. Wasserman, Esquire 5950 Washington Street

Hollywood, Florida 33023

Mr. Aldine C. Carter

10351 Southwest 28th Street Miami, Florida

Docket for Case No: 77-001383

Orders for Case No: 77-001383