STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH F. VOGEL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2228

)

ACCO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on January 30, 1980, by Linda M. Rigot, assigned Hearing Officer with the Division of Administrative Hearings, in West Palm Beach, Florida. This case was presented upon an affidavit filed by Kenneth F. Vogel 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 & Music Building at Broward Community College.

Based upon the testimony and evidence received at the hearing, 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?

Petitioner appeared in propria persona. L. Byrd Booth, Jr., Esquire, 2900 East Oakland Park Boulevard, Post Office Drawer 11088, Fort Lauderdale, Florida 33339, appeared on behalf of Respondent.

FINDINGS OF FACT

1. Petitioner, Kenneth F. Vogel, has been a sheet metal journeyman for the lost 28 years and holds a Broward County Certificate of Competency as such. He began working for the Respondent on the Ralph R. Bailey Concert Ball Music Building as a sheet metal journeyman on November 17, 1977.

   
   

2. Petitioner's affidavit claiming non-compliance with the Florida Prevailing Wage Law was signed on April 2, 1979, was mailed on May 1, 1979, and was received on May 2, 1979. The parties stipulated at the hearing to April 2, 1979, as the last day of non-compliance being alleged although the Petitioner continued working for Respondent on the job in question subsequent to that date. Therefore, Petitioner's affidavit was timely filed.

   
   

3. Petitioner saw the job specifications, the bid documents, and the Notice of Prevailing Wages posted on the job site. According to that schedule,

   the prevailing wage for the job in question was $10.55 per hour. From November 17, 1977, through March 4, 1979, Petitioner was paid $9.00 per hour. From March 5, 1979, through April 2, 1979, the last date claimed by the Petitioner at the hearing, he was paid $10.00 per hour. As agreed to by the parties, Petitioner worked a total of 2,370 hours on the building in question, with 2,322 of those hours being at the $9.00 per hour pay rate and 45 of those hours being at the

   $10.00 per hour pay rate. Accordingly, Petitioner's claim for the difference between wages actually paid and the prevailing wage is a total of $3,625.50.

   
   

4. The wages actually received by the Petitioner on the job in question for the dates claimed totalled $21,378.00.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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 $5,000.00 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.

   
   

6. The burden lies with the employee to prove every allegation upon which his claim is based. The necessary allegations include:

   
   

   1. The fact that the employee was employed by the employer;

   2. The fact that the construction involved was a public building or public work as described in Section 215.19, Florida Statutes;

   3. The established prevailing wage for the position in which the employee alleges he worked;

   4. 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

   5. The wages actually received by the employee and the hours worked by the employee on the construction in question.

      
      

7. The Schedule of Prevailing Wage Rates clearly indicates that the construction in question was subject to Section 215.19, Florida Statutes. Although no admissible evidence was presented regarding the amount of the construction contract, the actual wages received by Petitioner alone were well in excess of the $5,000.00 minimum mandatory construction amount. Clearly, the contract was far in excess of $5,000.00 when one employee was paid in excess of four times that amount even though his wages were less than the Prevailing Wage Schedule for sheet metal workers on the construction job in question. The established prevailing wage of $10.55 per hour is uncontroverted, Petitioner's employment as a sheet metal journeyman is uncontroverted, and the total number of hours worked and amount of wages actually received by the employee were resolved by the testimony or agreed to by the parties.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Hearing Officer recommends that Kenneth F. Vogel be paid $3,625.50 from the amounts withheld from the contractor on this project.

DONE AND ORDERED this 13th day of February, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mr. Kenneth F. Vogel 951 N.W. 42nd Avenue

Coconut Creet, Florida 33066

L. Byrd Booth, Jr., Esquire

2900 East Oakland Park Boulevard Post Office Drawer 11085

Fort Lauderdale, Florida 33301

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

1321 Executive Center Drive, East Tallahassee, Florida 32301

Mr. Sidney H. Levin Secretary of Commerce 510C Collins Building

Tallahassee, Florida 32301

Docket for Case No: 79-002228

Orders for Case No: 79-002228