Judges: DELPHENE C. STRICKLAND
Agency: Department of Agriculture and Consumer Services
Latest Update: Apr. 04, 1979
Summary: Petitioner was not entitled to return of bond for contaminated gas even though the contamination was purely unforseeable and unintentional.
78-1076.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILKES OIL COMPANY, MARKETER ) FOR AMERICAN PETROFINA COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1076
) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Delphene C. Strickland, held a public hearing in the above styled case on January 18, 1979, in Hernando County Courthouse, Brooksville, Florida.
APPEARANCES
For Petitioner: James R. Wilkes, Marketer
American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512
For Respondent: Robert A. Chastain, Esquire
Florida Department of Agriculture and Consumer Services
Room 513, Mayo Building Tallahassee, Florida 32304
PROCEDURAL BACKGROUND
This proceeding involves the proposed confiscation of 1600 gallons of gasoline or the bond of $507.91, estimated value of gasoline that had been sold at Easy Shopper, U. S. 41 South, Brooksville, Florida, because the sample taken from the unleaded pump on February 10, 1978, contained a lead content in excess of .05 grams per gallon. The proceeding also involves a confiscation of 1881 gallons of gasoline or the forfeiture of a bond of $206.70 for the value of the gasoline that was retailed from the pump at Huey's Service Station, U. S. 19 South, Inverness, Florida, because the sample taken from the unleaded pump on March 13, 1978, contained a lead content in excess of .05 grams per gallon of gasoline.
FINDINGS OF FACT
On February 10, 1978, a petroleum inspector, David Potter, in carrying out his routine inspection, took a gasoline sample for analysis of unleaded gasoline from the Easy Shopper Store located on U. S. 41 South, Brooksville,
Florida. This sample was tested by the state laboratory at Tallahassee, Florida, and on February 17, 1978, the Tallahassee laboratory notified Mr. Potter that the unleaded gasoline was illegal in that in contained .240 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the Respondent Department's regulation. On the basis of this information, Potter went to the Easy Shopper Store and placed a stop-sale notice on the tank that dispensed unleaded gasoline. On this same date, February 17, 1978, the Petitioner was allowed to deliver 1200 gallons of unleaded gasoline in an effort to reduce the lead content already existing in the tank. Another sample was taken from the tank after the 1200 gallons was added, and it was dispatched for analysis. On February 20, 1978, Potter was notified by Tallahassee laboratory that the lead content in subject tank contained .520 grams per gallon and was therefore illegal. On the basis of this, the Petitioner, James R. Wilkes, was allowed to post a bond in the amount of $507.91 for the value of 834 gallons that was sold by Easy Shopper Store from the last delivery before the first sample and the stop-sale. The Petitioner was then allowed to pump out the illegal unleaded gasoline and put it in a regular tank to be sold as regular gasoline.
On March 13, 1973, Mr. Potter sampled the Petitioner's unleaded product at Huey's Service Station located at U. S. 19 South, Inverness, Florida. The unleaded gasoline sample was dispatched to the Tallahassee Laboratory, and the analysis indicated that the lead content was .069 grams per gallon established by the Respondent's Department's regulations. As a result of the analysis of the gasoline sample, Mr. Potter placed a stop-sale against Huey's Service station's unleaded gasoline tank, and the Respondent posted a bond of $206.70 which was the value of the gasoline sold before the stop-sale. Upon the posting of the bond the Petitioner was allowed to pump out the remaining gasoline and refill the tank with a new product. The contaminated product that was recovered by the Petitioner from Huey's Service Station was delivered on February 15, 1978, in the amount of 500 gallons, and on March 1, 1978, in the amount of 300 gallons.
On or about March 3, 1978, the Petitioner discovered the cause of the gasoline contamination. He found a leak from the No. 3 compartment to the No. 4 compartment on his delivery truck, which caused the regular gasoline to mix with the unleaded gasoline. Promptly upon discovery of the leaking compartment, the Petitioner had the tank compartments repaired by the Tank Welding & Service Company, Inc., located in Tampa, Florida.
There is no dispute as to the facts, and the only connection on the part of Petitioner is that although the gasoline was contaminated it was not an intentional act of the Petitioner, and he feels he should not be penalized in the amount of $507.91 and $206.70 under the circumstances of this case.
Respondent contends that Section 525.06, Florida Statutes. does not allow for any discretion on the part of the Respondent in its confiscation of the remaining contaminated gasoline, other than the agreement between participating parties which allowed the Petitioner to post bonds in the amount of $507.91 and $206.70, which is the value of the gasoline Petitioner dispensed to the public at Easy Shopper Store and Huey's Service Station. Respondent contends that most similar incidents are non-intentional.
CONCLUSIONS OF LAW
Section 525.06 Gasoline, etc., below standard, subject to confiscation.
- - Provides
All oils enumerated and designated in this chapter that are used or intended to be used for power, illuminating, cooking or heating purposes, when sold under a distinctive name that shall fall below the standard fixed by the Department of Agriculture and Consumer Services, are declared to be illegal, and shall be subject to confiscation and Sale by order of the department. All manufacturers, wholesales and jobbers and distributors who sell, barter or exchange gasoline or other oils within this state, shall post conspi- cuously at the place of delivery to the consumer a cord or sign not smaller than
12 to 15 inches, setting forth in size type not smaller than 1 inch in height, in the English language, the degree of gravity of
the product sold, offered or exposed for sale.
In Florida Administrative Code Rule 5F-2.01 Standards, provides in part:
(1) GASOLINE. The following specifications apply generally to all gasolines offered for sale in Florida. . . . .
(j) Lead - - ASTM D526. For levels below
0.5 grams per gallon D2547 or D2599. For all levels Atomic Absorption Spectroscopy, Kashlike, Yamazoe, and Oshima. Maximum Limitations for lead content designation are shown in Table 2.
Table 2. REQUIREMENTS FOR DESIGNATION OF LEAD CONTENT IN GASOLINE
Unleaded No intentional addition of lead compounds. May not contain more than 0.05 gram of lead per gallon.
Low lead May contain led compounds not to exceed 0.5 gram of lead per gallon.
The foregoing rule was violated and, although the Petitioner did not intentionally add lead, he violated the rule by delivering gasoline in excess of the maximum lead content allowable under the rule. It is common knowledge that leaded gasoline is harmful to the catalytic converter installed on most modern American-made automobiles. Accordingly, there is a valid basis for legislative rules and regulations to stop the sale of gasoline designated as unleaded which contains a lead content in excess of the prescribed standard.
Undisputedly, Petitioner was responsible for the sale of gasoline designated as unleaded, which gasoline did not meet the established standards. It is to stop this practice, even when inadvertent, that the Department of Agriculture and Consumer Services has been given the authority to confiscate gasoline that fails to meet the designated standard for the name under which the gasoline is sold.
It is concluded that under the foregoing statute and rule the Petitioner, as a marketer and jobber, is liable for the payment of $507.91 and
$206.70 in lieu of the confiscation and sale by the Respondent of the gasoline
remaining in the tanks of Easy Shopper Store and Huey's Service Station after the sale of such gasoline by the Petitioner to the respective stores.
RECOMMENDATION
It is recommended that upon payment by the Petitioner of $507.91 and
$206.70, respectively, the bond of the Petitioner be cancelled and this case be closed
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1979.
DELPHENE C. STRICKLAND
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1979.
COPIES FURNISHED:
Robert A. Chastain, Esquire Florida Department of Agriculture and Consumer Services
Room 513, Mayo Building Tallahassee, Florida 32304
James R. Wilkes, Marketer American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512
Mr. John Whitton
Bureau of Petroleum Inspection Florida Department of Agriculture and Consumer Services
Room 513, Mayo Building Tallahassee, Florida 32304
Docket for Case No: 78-001076
Orders for Case No: 78-001076
| Issue Date |
Document |
Summary |
|
Apr. 04, 1979 |
Recommended Order
|
Petitioner was not entitled to return of bond for contaminated gas even though the contamination was purely unforseeable and unintentional.
|
