STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY WILKINSON d/b/a WILKINSON ) FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-031A

) CHARLES B. LAWTON, JERRY LAWTON )

and J. P. SIZEMORE, d/b/a )

DIXIE GROWERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 18, 1982, in Tampa, Florida. The issue for determination at the hearing was whether respondents had properly accounted to and paid for petitioner's produce.

APPEARANCES

For Petitioner: Jerry Wilkinson

Post Office Box 86 Webster, Florida 33597

For Respondent: Eric Ruff, Esquire

Post Office Drawer TT Plant City, Florida 33566

INTRODUCTION

In September of 1981, petitioner Jerry Wilkinson, doing business as Wilkinson Farms, filed with the Department of Agriculture and Consumer Services of the State of Florida a "Request for Accounting," requesting the Department to investigate the records and obtain and determine a true accounting of the proceeds due petitioner from the disposition of agricultural products to respondents. The Department prepared a tabulation of the accountings and concluded that an administrative hearing was necessary to resolve certain factual issues. Petitioner requested an administrative hearing on the issue of whether petitioner had been properly accounted to and paid for this produce, and the undersigned Hearing Officer was designated to conduct the hearing.

At the hearing conducted on June 18, 1982, the petitioner presented testimony on his own behalf and his father, Harvey Wilkinson, was called as a witness. Petitioner's Exhibit 1 was received into evidence. The respondents presented the testimony of Bronson B. Mela, Charles E. Lawton, Jerry Lawton, Carol Hinton, and James E. Brooks. Respondents' Exhibits A through H were received into evidence.

During the course of the administrative hearing, the petitioner stipulated that the accounting sheets and figures received into evidence as respondents' Exhibit A, as amended by respondents' Exhibit D, were correct. The only matters thus left in dispute were whether the cucumbers which were accounted for were petitioner's cucumbers and whether petitioner was paid for his produce. The respondents adduced evidence that certain monies were owed to them by petitioner and, at the close of their case, moved the Hearing Officer to allow them to counterclaim against petitioner for such amounts. On the grounds that petitioner was not provided any notice of such a counterclaim, the respondents' motion was and is denied.

Inasmuch as the only factual dispute remaining in this proceeding is whether or not the cucumbers for which an accounting was made were indeed petitioner's cucumbers and, if so, whether petitioner was properly paid for the same, the findings of fact will be limited to those issues.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing, as well as the stipulations of facts as to the accounting figures received into evidence as respondents' Exhibit D, the following relevant facts are found:

1. Petitioner supplied cucumbers and cubanelle peppers to the respondents for the purpose of selling such produce for petitioner. Petitioner received a check in the amount of $1200.00 from the respondents. Frank Hause, who was involved in a joint venture with the petitioner, received another check from the respondents in the amount of $1500.00. Petitioner was not made aware of the Hause payment until a later date.

   
   

2. With the exception of one shipment which does not appear on the accounting records involved in this proceeding, respondents received all their cucumbers from petitioner or Frank Hause. Due to the fact that the market for cucumbers was so depressed at the time, respondents neither needed nor received cucumbers from any other source.

   
   

3. The accounting figures stipulated as being correct by both petitioner and respondents illustrate that respondents owed petitioner $905.39 for the sale of cucumbers and a figure of minus (-) $681.45 for the sale of peppers. The net amount due petitioner from the respondents for the sale of cucumbers and peppers was $223.94.

   
   

   CONCLUSIONS OF LAW

   
   

4. It was petitioner's burden in this proceeding to prove by competent substantial evidence that respondents owed him money for cucumbers and peppers delivered or supplied to respondents. While agreeing as to the accuracy of the accounting figures received into evidence in this proceeding, petitioner takes issue with the conclusion that the cucumbers came from the petitioner and that he was adequately paid for the cucumbers which he claims were supplied by him. It is contended by petitioner that the $1500.00 check made payable to Frank Hause should not be credited against him. Petitioner offered no evidence to demonstrate that the cucumbers accounted for were not supplied to respondents from petitioner. Respondents offered evidence that all cucumbers received by them came from the petitioner.

   
   

5. It appearing from the evidence that respondents owed petitioner a net amount of $223.94 for cucumbers and peppers and paid petitioner an amount of

$1200.00, petitioner has been adequately accounted to and paid for any produce it supplied to respondents. Any claims for monies which respondents may have against the petitioner are not the proper subject of this proceeding, there being no adequate notice of such claim prior to this proceeding.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition and/or complaint filed by the petitioner against the respondents be DISMISSED.

Respectfully submitted and entered this 29th day of July, 1982, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1982.

COPIES FURNISHED:

Jerry Wilkinson Post Office Box 86

Webster, Florida 33597

Eric Ruff, Esquire Post Office Drawer TT

Plant City, Florida 33566

Charles B. Lawton, Jerry Lawton and J. P. Sizemore d/b/a

Dixie Growers

Post Office Box 1686

Plant City, Florida 33566

Robert A. Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building

Tallahassee, Florida 32301

Florida Farm Bureau Mutual Ins. Co. Post Office Box 730

Gainesville, Florida 32602

Mr. Earl Peterson, Chief Bureau of Licensing & Bond Department of Agriculture Room 416 Mayo Building Tallahassee, Florida 32301

Docket for Case No: 82-000031

Orders for Case No: 82-000031