UNIVERSAL ELECTRIC, INC., Appellant, v. THE STATE OF NEVADA EX REL OFFICE OF LABOR COMMISSIONER; F.T. MACDONALD in His Capacity as Labor Commissioner; CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision; BUD MAHAS CONSTRUCTION, INC., and J.A. TIBERTI CONSTRUCTION COMPANY, Respondents
Universal Electric, Inc. v. State ex rel. Office of Labor Commissioner
Rose, C. J., Steffen and Springer, JJ., and Zenoff, Sr. J., concur.
UNIVERSAL ELECTRIC, INC., Appellant, v. THE STATE OF NEVADA EX REL OFFICE OF LABOR COMMISSIONER; F.T. MACDONALD in His Capacity as Labor Commissioner; CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision; BUD MAHAS CONSTRUCTION, INC., and J.A. TIBERTI CONSTRUCTION COMPANY, Respondents.
UNIVERSAL ELECTRIC, INC., Appellant, v. THE STATE OF NEVADA EX REL OFFICE OF LABOR COMMISSIONER; F.T. MACDONALD in His Capacity as Labor Commissioner; CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision; BUD MAHAS CONSTRUCTION, INC., and J.A. TIBERTI CONSTRUCTION COMPANY, Respondents.
No. 22713
March 11, 1993
847 P.2d 1372
Orin Grossman, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Louis A. Ling, Deputy Attorney General, Carson City, for Respondents State of Nevada and Labor Commissioner.
Donald A. Haight, Las Vegas, for Respondent Clark County School District.
David Rivers, Las Vegas, for Respondent J.A. Tiberti Construction Co.
The Honorable Charles E. Springer, in his former role of Vice-Chief Justice, appointed The Honorable David Zenoff, Senior Justice, to sit in the place of The Honorable John C. Mowbray, Chief Justice, now retired. Nev. Const, art. 6, § 19; Supreme Court Rule 10.
OPINION
Per Curiam:
FACTS
Universal Electric, Inc. ("Universal") was the electrical subcontractor on two Las Vegas public works projects: Cheyenne and Cimarron Memorial High Schools. In January 1991, the Nevada Labor Commissioner (the "Commissioner") received a letter from Universal electricians informing him that Universal was not paying them the correct prevailing wage. The letter indicated that Universal was paying electricians $19.96 per hour when the correct prevailing wage was $27.98 per hour. A labor commission investigator interviewed four Universal electricians who confirmed the letter's contention.
On March 20, 1991, the Commissioner, relying upon NRS 338.160(5), directed the Clark County School District, which owned the projects, to retain $30,000 from payments due Universal on each project. On April 15, 1991, the Commissioner received a letter from Universal's counsel indicating that Universal was concerned about the withholdings. Universal did not, however, request a hearing.
The Commissioner increased the amount retained on May 29, 1991. For the Cheyenne project, the amount rose to $175,391.28; for the Cimarron Memorial project, the amount retained increased to $167,586.40.
Universal claimed NRS 338.160(5) was unconstitutional and sought to enjoin its application. Universal argued that the statute failed to provide even a scintilla of procedural due process, thus violating the Fourteenth Amendment. Specifically, Universal asserted that NRS 338.160(5) provided no mechanism to allow an affected contractor to challenge a retention.
Finding Universal's chance of prevailing on the merits negligible at best, the district court refused to enjoin the application of NRS 338.160(5) or to release the monies withheld. Universal posted supersedeas bonds to obtain release of the payments due. This appeal followed. We conclude that the legislature clearly envisioned a hearing would be held promptly following an NRS 338.160(5) retention. Accordingly, we affirm the ruling of the district court and hold that NRS 338.160(5) is constitutional.
DISCUSSION
Legislation is presumed constitutional absent a clear showing to the contrary. Starlets International v. Christensen, 106 Nev. 732, 735, 801 P.2d 1343, 1344 (1990). A party attacking a statute's validity is faced with a formidable task.
In case of doubt, every possible presumption will be made in favor of the constitutionality of a statute, and courts will interfere only when the Constitution is clearly violated. Further, the presumption of constitutional validity places upon those attacking a statute the burden of making a clear showing that the statute is unconstitutional.
List v. Whisler, 99 Nev. 133, 137, 660 P.2d 104, 106 (1983) (citations omitted).
"A fundamental requirement of due process is 'the opportunity to be heard.'" Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (citing Grannis v. Ordean, 234 U.S. 385 (1914)). We hold that this requirement is satisfied by the Labor Commissioner's Practice Rules, which provide in part:
If, from the complaint or from other official records of the commissioner, it appears that the charges may be well founded, the commissioner will send written notice to the person charged at least 14 days before the date fixed for the hearing. The notice must itemize the charges and set forth the date of the hearing.
NAC 607.200(3).
The Commissioner would not have ordered the monies otherwise due Universal withheld absent a finding that the electricians' complaints were "well founded." Upon making this determination, the Commissioner should have set a hearing date and notified Universal of this decision. This the Commissioner failed to do. However, the Commissioner's failure to abide by his practice rules does not render the enabling statute unconstitutional. See Tiffany By and Through Tiffany v. Arizona Interscholastic Ass'n, Inc., 726 P.2d 231 (Ariz.Ct.App. 1986) (administrative agency's failure to follow its own rules and regulations does not create constitutional due process right on behalf of party who suffers wrong at hand of such agency).
At a minimum, Universal should have demanded that the Commissioner adhere to NAC 607.200. This may have been accomplished by a simple request. We do not know, however, because Universal never sought a hearing. Instead, Universal sought to have NRS 338.160(5) declared unconstitutional.
We agree that NRS 338.160(5) could have been worded more precisely: "shall" would have been more prudent than "may." Nevertheless, a statute constitutionally defective for failing to provide a hearing may be cured by administrative regulations. Polyvend, Inc. v. Puckorious, 395 N.E.2d 1376, 1384 (Ill. 1979) (Clark, J., concurring) (citing Bell v. Burson, 402 U.S. 535, 542-43 (1972)). As already discussed, NAC 607.200(3) does provide for notice and hearing.
In addition, we hold that the hearing provided by NAC 607.200(3) must be held promptly following a retention made pursuant to NRS 338.160(5). In any event, absent a showing of good cause for delay, the aggrieved party must be provided a prompt hearing following the retention.
We note that the dissent lauds the legislature for passing NRS 338.160(5), and acknowledges in effect that harm can come to Nevada's laborers without it. However, acceptance of the dissent's strict construction of NRS 338.160(5) would thwart the legislature's clear purpose in passing that section. Accordingly, we adhere to the rule of statutory construction that the intent of a statute will prevail over the literal sense of its words. McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.2d 438, 443 (1986).
CONCLUSION
We hold that any alleged constitutional infirmity of NRS 338.160(5) is cured by NAC 607.200(3). We therefore affirm the ruling of the district court.
Rose, C. J., Steffen and Springer, JJ., and Zenoff, Sr. J., concur.
NRS 338.020 requires that laborers employed on public works projects receive the prevailing wage of the county where the project is located.
NRS 338.160(5) provides:
If the labor commissioner has reason to believe that an employee has a valid and enforceable claim for wages against a contractor, he may require the public body to withhold from any payment due the contractor under this section and pay the labor commissioner instead, an amount equal to the amount claimed by the employee. This amount must be paid to the employee if the claim is resolved in his favor, otherwise it must be returned to the public body for payment to the contractor.
The Honorable Miriam Shearing, Justice, did not participate in the decision of this matter.