STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILDRED J. HESS & GILBERT HESS, ) d/b/a DOUBLE G. FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1754A

) EASTERN GROWERS & SHIPPERS, INC., )

)

Respondent. )

and )

)

SENTRY INDEMNITY COMPANY, )

)

Co-Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 4, 1983, at Tavares, Florida.

APPEARANCES

For Petitioner: Gilbert Hess, pro se

Route 5, Box 309

Dunnellon, Florida 32630

For Respondent: William Asma, Esquire

Post Office Box 1340

Winter Garden, Florida 32787

By Supplemental Complaint filed March 24, 1983, Petitioner seeks to recover from Respondent, or from Respondent's bonding company, $1,023.53 as payment for watermelons sold to Respondent. In Answer of Respondent dated May 9, 1983, Respondent acknowledged the indebtedness of $1,023.53 but claims a set-off involving a different transaction between the same parties involving the purchase and shipment of cucumbers.

At the hearing Petitioner acknowledged that he had received a bill from Respondent which was admitted into evidence as Exhibit 5, but he did not concur with the correctness of the charges included thereon. Exhibit 1, a ledger page containing the watermelon transaction; Exhibits 2 and 3, letters from Respondent and Exhibit 4, three Conchecks dated 5-7-82, 5-11-82, and 5-14-82, were also admitted into evidence.

FINDINGS OF FACT

1. Petitioner sold watermelons to Respondent in June, 1982, for a net price due grower of $5,907.15. The buyer paid the grower $4,883.62 leaving a balance owed of $1,023.53.

   
   

2. During the same period the grower delivered to the buyer some 692 bushels of cucumbers. Buyer advanced $1,200 to the grower on May 7, 11, and 14, 1982. The Comchecks (Exhibit 4) show $407.00, $607, and $407 on each of those dates; however, Exhibit 5 shows $400 was advanced by each check,

   
   

3. Neither party was prepared to present evidence that the charges contained on Exhibit 5 were customary and proper in the brokerage of agricultural products business, and both parties agreed that the cucumber dispute should he referred to the Department of Agriculture and Consumer Services for investigation as the watermelon dispute had been.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

5. Respondent owes Petitioner $1,023.53 for watermelons Respondent purchased in June, 1982.

   
   

6. Before Respondent can be granted credit for the off-set it claims as a result of the cucumber transaction, those items comprising the set-off must be resolved and be reduced to a fixed sum. Absent evidence that those charges on Exhibit 5, which were disputed by Petitioner, are proper charges under the circumstances, a set-off cannot be allowed.

   
   

7. From the foregoing it is concluded that Eastern Growers & Shippers, Inc., owes Gilbert Hess $1,023.53 and that Eastern Growers & Shippers, Inc., is not entitled to set off any part of the disputed claim it has with Hess regarding the cucumber transaction. It is

RECOMMENDED that Eastern Growers & Shippers, Inc., be ordered to pay Gilbert Hess $1,023.53 within fifteen (15) days of the Final Order entered in this case. In the event Respondent does not comply with that order within fifteen (15) days, that Sentry Indemnity Company, as surety of Respondent, be ordered to provide payment under the conditions and provisions of the bond it furnished for Respondent.

ENTERED this 15th day of August, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 15th day of August, 1983.

COPIES FURNISHED:

Mildred J. Hess & Honorable Doyle Conner

Gilbert Hess Commissioner of Agriculture

d/b/a Double G Farms Mayo Building

Route 5, Box 309 Tallahassee, Florida 32301

Dunnellon, Florida 32630

Robert A. Chastain, Esquire William Asma, Esquire Department of Agriculture and Post Office Box 1340 Consumer Services

Winter Garden, Florida 32787 Mayo Building

Tallahassee, Florida 32301

Sentry Indemnity Company 2801 Dixon Street Stevens Point, Wisconsin

Glenn A Bissett, Chief Bureau of License and Bond

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 83-001754

Orders for Case No: 83-001754