STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2420

)

SANIER CONSTRUCTORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its undersigned Hearing Officer, held a public hearing in this case on March 2, 1979, in Tampa, Florida.

APPEARANCES

William E. Davis, 4709 Montgomery Avenue, Tampa, Florida 33616, appearing in proper person; Harold Gosswein and Gregory G. Wolf, c/o Rex Electric Company, Post Office Box 22914, Tampa, Florida 33623, appearing on behalf of Rex Electric Company. 1/

ISSUE

The issue posed herein is whether the Respondent, Sanier Constructors, Inc., its agent and/or representative failed to pay the Petitioner the prevailing hourly wage rate as set forth and defined in Chapter 215.19(3)(a)(1), F.S.

FINDINGS OF FACT

1. William E. Davis, Petitioner herein, was employed as an electrical foreman by Rex Electric Company, a subcontractor performing work under the General Contractor, Sanier Constructors, Inc., in connection with construction work which was performed for the St. Petersburg Police Deparment. Petitioner was employed during the dates November 11, 1977, to approximately February 17, 1978.

   
   

2. The prevailing wage rate for electrical workers (foreman) in the St. Petersburg area is $9.95 per hour. Based thereon, the Petitioner worked a total sixty-nine (69) days at eight hours per day, which totals 552 hours. During this period, the Petitioner was paid $8.00 per hour.

   
   

3. Harold "Hap" Gosswein, a representative of Rex Electric Company, testified that he and Petitioner entered an agreement whereby the Petitioner agreed to work for the hourly rate of $8.00 on all jobs including the subject project.

4. The Petitioner does not dispute this arrangement and this arrangement was further corroborated by Rex Electric Company's representative, Gregory G. Wolf, who also testified during the hearing. During the term of his employment, the Petitioner at no time voiced dissatisfaction with the hourly wage rate, to which he agreed, and only complained after he quit the employ of Rex Electric Company, on February 19, 1978. Thereafter, on March 27, 1978, he filed an affidavit claiming that he was due wages in the amount of $1,757.80, which amount represents the difference between the prevailing wage rate and the wages he was actually paid.

   
   

5. In view of the agreement with which the Respondent's agent, Rex Electric Company, hired the Petitioner, and the fact that the Petitioner acknowledged the existence of the agreement whereby he contracted his services for the amount of $8.00 per hour, the undersigned is of the opinion that the Respondent is under no obligation to pay any amount over and above that which it agreed upon, i.e., $8.00 per hour. Accordingly, I shall recommend that the Administrative Complaint filed herein be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. Insufficient evidence was offered to establish that the Respondent was obligated to pay Petitioner the prevailing wage rate in view of the above- described arrangement mutually agreed upon by the parties.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby,

RECOMMENDED:

That the complaint filed herein be DISMISSED.

ENTERED this 20th day of March, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

101 Collins Building

MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ Rex Electric Company, Inc., served as an electrical subcontractor for Sanier Constructors, Inc., for the project in question.

COPIES FURNISHED:

William E. Davis

4709 Montgomery Avenue

Tampa, Florida 33616

Harold Gosswein

c/o Rex Electric Company Post Office Box 22914 Tampa, Florida 33623

Gregory G. Wolf

c/o Rex Electric Company Post Office Box 22914 Tampa, Florida 33623

Sanier Constructors, Inc. Post Office Drawer 1141 Bradenton, Florida 33506

Luther J. Moore

Administrator of Prevailing Wage Department of Labor and Employment Security

1321 Executive Center Drive, East Tallahassee, Florida 32301

Docket for Case No: 78-002420

Orders for Case No: 78-002420