STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-813

)

TREASURE COAST OIL INC., )

)

Respondent. )

)

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 May 26, 1977 at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Leslie McLeod, Esquire

Staff Attorney

Department of Agriculture Mayo Building

Tallahassee, Florida 32304

For Respondent: B. W. Simpkins

Vice President

Treasure Coast Oil, Inc. Post Office Box 730 Cocoa, Florida 32922

RECOMMENDED ORDER

By Letter dated May 5, 1977 Treasure Coast Oil, Inc. Respondent, requested a hearing on the penalty proposed to be assessed by the Department of Agriculture, Bureau of Petroleum Inspection, Respondent, of $1,000 for the contaminated diesel oil found upon routine inspection at English Brothers Truck Stop, Vero Beach, Florida on March 22, 1977. Three witnesses were called by Petitioner, one witness was called by Respondent, and four exhibits were admitted into evidence.

FINDINGS OF FACT

1. On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel.

2. Upon receipt of the stop sale notice the station manager notified Respondent.

   
   

3. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated.

   
   

4. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale.

   
   

5. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success.

   
   

6. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM.

   
   

7. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.

   
   

   CONCLUSIONS OF LAW

   
   

8. Chapter 525 F.S. provides for the regulation and inspection of various fuels including diesel oil. Section 525.06 F.S. provides that any such fuel offered for sale and found to be below the standards established for such fuel shall be subject to confiscation.

   
   

9. Here the fuel was obviously in violation of the statute and was subject to confiscation. The violation was not an intentional one, nor was it shown to be the result of the negligence of the Respondent or its agent, English Brothers Truck Stop. Respondent took immediate steps to remove the oil, clean the tanks and locate the source of the contamination. In so doing it did everything that could be done to correct the situation with which it unexpectedly found itself confronted.

   
   

10. Since this is the first violation found against Respondent in the eight and one half years they have been in operation, and since they took immediate steps to rectify the situation the full penalty assessed of $1,000 appears excessive. It is therefore,

RECOMMENDED that Respondent, Treasure Coast Oil, Inc. be assessed a penalty of $200 in-lieu of confiscation of the No. 2 diesel fuel found to be contaminated on March 22, 1977.

DONE and ENTERED this 15th day of June, 1977, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Leslie McLeod, Esquire Department of Agriculture Mayo Building

Tallahassee, Florida 32304

B. W. Simpkins Vice President

Treasure Coast Oil, Inc.

P. O. Box 730

Cocoa, Florida 32922

Docket for Case No: 77-000813

Orders for Case No: 77-000813