dissents in a memorandum as follows: I would grant the petition and annul the determination.
At issue is the question of whether there was a willful violation of section 220 of the Labor Law more than twice in a six-year period.
We have heretofore considered the question most recently (Matter of Action Elec. Contrs. Co. v Goldin, 102 AD2d 732).
I would conclude that there was not a rational basis for the determination of a willful violation.
The petitioner is a small plumbing corporation, family owned, consisting of two licensed plumbers, and has engaged exclusively in the performance of public works contracts with the Board of Education of the City of New York.
In 1982, the petitioner hired an unskilled neighbor who expressed an interest in learning how to become a plumber. The young man, according to the petitioner, was hired as a “gofer” and his duties consisted of picking up materials, getting meals and coffee, occasionally removing debris and having the opportunity of watching the work so that he could learn.
In 1982, the petitioner had five contracts which were subject to subdivision 3 of section 220 of the Labor Law calling for a “prevailing rate of wages”.
Complaints were made that the young man was a “laborer” and entitled to the prevailing wage for that category. While he was more like an “apprentice”, he had not been so registered and, therefore, could not be counted as such.
Evidence was presented that the log books from the custodial engineers at the five schools under contract indicated that on 14 of 41 occasions there were three men present at the site, being the two principals of the petitioner plus one other. It was assumed that the young man was the one other although the direct evidence was only that he had been seen performing work at one of the five sites. Originally, the young man was paid $30 a day, which was increased to $180 for a four-day week, which, by normal standards for an unskilled “gofer”, would be adequate.
The log-book records of the custodians at the school, not having been offered in evidence as records kept in the ordinary course of business, were hearsay and not admissible. Moreover, except in one instance, there was no direct evidence of who the third man was.
*349There was no evidence that the so-called violation had been called to the attention of the petitioner in order to make the deviation willful. Besides, the law requires two instances of failure to comply. The five contracts involve the same young man and ought to be considered as one instance.
The result of the determination here is to exclude a qualified organization from being able to submit a bid on a public work contract for a period of five years. On the flimsy basis heretofore discussed, this is a detriment both to the petitioner and also to the public which loses the opportunity of having an additional bidder for the work involved.