State ex rel. National Electrical Contractors Ass'n v. Ohio Bureau of Employment Services

83 Ohio St. 3d 179
CourtOhio Supreme Court
DecidedSeptember 23, 1998
DocketNo. 97-2499
StatusPublished
Cited by56 cases

This text of 83 Ohio St. 3d 179 (State ex rel. National Electrical Contractors Ass'n v. Ohio Bureau of Employment Services) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. National Electrical Contractors Ass'n v. Ohio Bureau of Employment Services, 83 Ohio St. 3d 179 (Ohio 1998).

Opinion

Per Curiam.

Declaratory Judgment

Appellants initially contend that the court of appeals erred by sua sponte dismissing their declaratory judgment claim for lack of subject matter jurisdiction.

Appellants, however, are mistaken. Courts of appeals lack original jurisdiction over claims for declaratory judgment, Wñgkt v. Ghee (1996), 74 Ohio St.3d 465, 466, 659 N.E.2d 1261, 1262; State ex rel. Pressley v. Indus. Comm. (1967), 11 [181]*181Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus; Section 3(B)(1), Article IV, Ohio Constitution.

Therefore, the court of appeals correctly dismissed appellants’ declaratory judgment claim.

Mandamus

Appellants next assert that the court of appeals erred by granting OBES’s Civ.R. 12(B)(6) motion and dismissing their mandamus claim.

In order to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must appear beyond doubt that appellants could prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true, and all reasonable inferences are made in their favor. State ex rel. Kaylor v. Bruening (1997), 80 Ohio St.3d 142, 144, 684 N.E.2d 1228, 1231.

Appellants claim that OBES failed to comply with its duties under the following prevailing wage law provisions:

R.C. 4115.10

“(A) * * * Any employee upon any public improvement * * * who is paid less than the fixed rate of wages applicable thereto may recover from such person, firm, corporation, or public authority that constructs a public improvement with its own forces the difference between the fixed rate of wages and the amount paid to the employee and in addition thereto a sum equal to twenty-five per cent of that difference. The person, firm, corporation, or public authority who fails to pay the rate of wages so fixed also shall pay a penalty to the [OBES] administrator of seventy-five per cent of the difference between the fixed rate of wages and the amount paid to the employees on the public improvement. The administrator shall deposit all moneys received from penalties paid to the administrator pursuant to this section into the penalty enforcement fund, which is hereby created. The penalty enforcement funds shall be in the custody of the treasurer of the state but shall not be part of the state treasury. The administrator shall use the fund for the enforcement of sections 4115.03 to 4115.16 of the Revised Code. * * * « * * *
“(C) * * * The administrator shall bring any legal action necessary to collect any amounts owed to employees and the bureau. * * *
“(E) The bureau shall enforce sections 4115.03 to 4115.16 of the Revised Code.” (Emphasis added.)

R.C. 4115.13

[182]*182“(A) Upon his own motion or within five days of the filing of a complaint under section 4115.10 or 4115.16 of the Revised Code, the administrator of the bureau of employment services, or a representative designated by him, shall investigate any alleged violation of sections 4115.03 to 4115.16 of the Revised Code.
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“(D) If the administrator or his designated representative makes a decision, based upon findings of fact, that a contractor, subcontractor, or officer of a contractor or subcontractor has intentionally violated sections 4115.03 to 4115.16 of the Revised Code, the contractor, subcontractor, or officer of a contractor or subcontractor is prohibited from contracting directly or indirectly with any public authority for the construction of a public improvement or. from performing any work on the same as provided in section 4115.133 of the Revised Code. * * * ” (Emphasis added.)

R.C. 4115.133

“(A) The administrator of the bureau of employment services shall file with the secretary of state a list of contractors, subcontractors, and officers of contractors and subcontractors who have been prosecuted and convicted for violations of or have been found to have intentionally violated sections 4115.03 to 4115.16 of the Revised Code. * * *
it iji * *
“(C) No public authority shall award a contract for a public improvement to any contractor, subcontractor, or officer of a contractor or subcontractor during the time that the contractor’s, subcontractor’s, or officer’s name appears on such list. * * * ” (Emphasis added.)

The court of appeals held that any alleged failure by OBES to comply with its duties under the foregoing prevailing wage law provisions was remediable by an administrative complaint and subsequent appeal to a common pleas court under R.C. 4115.16.

R.C. 4115.16 provides:

“(A) An interested party may file a complaint with the administrator of the bureau of employment services alleging a violation of sections 4115.03 to 4115.16 of the Revised Code. The administrator, upon receipt of a complaint, shall investigate pursuant to section 4115.13 of the Revised Code. If the administrator determines that no violation has occurred or that the violation was not intentional, the interested party may appeal the decision to the court of common pleas of the county where the violation is alleged to have occurred.
“(B) If the administrator has not ruled on the merits of the complaint within sixty days after its filing, the interested party may file a complaint in the court of common pleas of the county in which the violation is alleged to have occurred. [183]*183The complaint may make the contracting public authority a party to the action, but not the administrator. * * * The court in which the complaint is filed pursuant to this division shall hear and decide the case, and upon finding that a violation has occurred, shall make such orders as will prevent farther violation and afford to injured persons the relief specified under sections 4115.03 to 4115.16 of the Revised Code. The court’s finding that a violation has occurred shall have the same consequences as a like determination by the administrator. The court may order the administrator to take such action as will prevent further violation and afford to injured persons the remedies specified under sections 4115.03 to 4115.16 of the Revised Code. * * * ”1 (Emphasis added.)

A writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of the law. R.C. 2731.05. In order for an alternative remedy to constitute an adequate remedy at law, it must be complete, beneficial, and speedy. State ex rel. Arnett v. Winemiller (1997), 80 Ohio St.3d 255, 259, 685 N.E.2d 1219, 1222.

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Cite This Page — Counsel Stack

Bluebook (online)
83 Ohio St. 3d 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-national-electrical-contractors-assn-v-ohio-bureau-of-ohio-1998.