STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. CLARK, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2230

)

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 Robert J. Clark 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 33301, appeared on behalf of Respondent.

FINDINGS OF FACT

1. Petitioner began forking for the Respondent on the Ralph R. Bailey Concert Hall & Music Building on January 25, 1978, as a sheet metal journeyman. His employment with the Respondent was terminated on December 24, 1978.

   
   

2. During the term of Petitioner's employment, the prevailing wage for sheet metal journeymen was $10.55 per hour.

   
   

3. Petitioner's affidavit claiming noncompliance with the Florida Prevailing Wage Law was signed on April 12, 1979, and was received by the Business Affairs Office of Broward Community College on April 17, 1979. That affidavit, together with sample pay stubs, together with the Schedule of Prevailing Wages Rates for construction of Ralph R. Bailey Concert Hall & Music Building signed by Luther J. Moore, together with correspondence from Clinton D. Hamilton dated April 20, 1979, were admitted into evidence.

4. The wages actually received by the Petitioner ranged from between $7.00 per hour to $8.50 per hour, although the record is devoid of evidence regarding the number of hours worked at each varying rate of pay. Respondent stipulated to the total number of hours for which Petitioner claims additional pay as being 1,880.

   
   

5. Petitioner's pay stubs, attached to his affidavit and admitted into evidence, reflect that for the week's pay period ending January 29, 1970, Petitioner was paid at the rate of $8.00 per hour; that for the week's pay period ending February 5, 1978, Petitioner was paid at the rate of $8.00 per hour; that for the week's pay period ending September 17, 1978, Petitioner was paid at the rate of $8.50 per hour; and that for the week's pay period ending November 26, 1978, Petitioner was paid at the rate of $7.00 per hour. The admitted pay stubs further reflect that by November 26, 1978, the Respondent had paid to the Petitioner herein actual wages in the amount of $16,543.00.

   
   

6. Petitioner's pay stubs reflect the amount of wages actually received for four different weeks during Petitioner's employment. The highest wage received by Petitioner was $8.50 per hour. Since the record fails to reflect that Petitioner was paid in excess of that rate at any time during his employment, and since the Petitioner has failed to show that he was paid less than that rate other than for the three other weeks set forth above, the highest rate paid of $8.50 per hour shall be used in computing the additional wages due the Petitioner herein.

   
   

7. The Petitioner worked a total of 1,880 hours for the Respondent herein. For the week ending January 29, 1978, Petitioner was paid $8.00 per hour for 40 hours of work and is therefore owed the sum of $102.00; for the week ending February 5, 1978, Petitioner was paid $8.00 per hour for 38.5 hours of work and is therefore owed the sum of $98.17; for the week ending September 17, 1978, Petitioner was paid $8.50 per hour for 60 hours of work and is therefore owed the sum of $123.00; for the week ending November 26, 1978, Petitioner was paid

   $7.00 per hour for 40 hours of work and is therefore owed the sum of $142.00. Assuming the Petitioner was paid the highest rate of $8.50 per hour for the remaining 1,701.5 hours, the Petitioner is owed the additional sum of $3,488.07. Accordingly, Petitioner is owed the total sum of $3,953.24.

   
   

8. No testimony was presented regarding the date of completion or acceptance of the building in question.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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.

10. 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.

       
       

11. The Schedule of Prevailing Wage Rates clearly indicates that the construction in question was subject to Section 215.19, Florida Statutes. Although no 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 alone was paid in excess of three 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 is uncontroverted.

    
    

12. Section 215.19,(3)(a)2, which has been repealed, but which still governs these proceedings, provides:

The affidavit hereinabove provided shall be filed with the contracting authority within thirty days from the last date of alleged noncompliance, and in no event shall such affidavit be filed more than thirty days after the completion and

acceptance of the public work contracted for.

There is an ambiguity as to whether the language "and in no event . . . more than thirty days after the completion and acceptance of the public work contracted for" operates to shorten the provision "thirty days from the last date of alleged noncompliance" or merely establishes a separate limitation. This ambiguity is further strengthened by the tact that Section 215.19(3)(a)1 allows an aggrieved employee to file an affidavit of noncompliance not only on behalf of himself, but also on behalf of other employees. Therefore, it is unclear whether "the last date of alleged noncompliance" refers only to the specific aggrieved employee or to noncompliance per se by the employer.

Petitioner filed his affidavit, which claim was accepted by the contracting authority and processed by the Department of Commerce. Thus, Petitioner's claim is presumptively valid. Since the timeliness, or lack of timeliness, of filing is a defense available to the Respondent, the burden is on the Respondent to prove that the filing of Petitioner's affidavit was late. The Respondent presented no evidence regarding the date of completion and acceptance of the public work and has therefor failed to show that Petitioner's claim was filed

more than thirty days thereafter; and, accordingly, Petitioner's claim is held timely filed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Hearing Officer recommends that Robert J. Clark be paid $3,953.24 from the amounts withheld from the contractor on this project.

DONE AND ENTERED 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. Robert J. Clark 5540 Mesa Verde

Margate, Florida 33063

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

Tallahassee, Florida 32301

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

Docket for Case No: 79-002230

Orders for Case No: 79-002230