STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-031

)

1. J. THORNTON, JR., d/b/a ) HEART OF FLORIDA TRUCK/AUTO ) PLAZA, TRUCK STOP 27, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on March 4, 1980, in Haines City, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Leslie McLeod, Jr., Esquire

   Department of Agriculture and Consumer Services

   Room 513, Mayo Building Tallahassee, Florida 32301

   
   

   For Respondent: F. J. Thornton, Jr., pro se

   Truck Stop 27

   Post Office Box 985

   Haines City, Florida 33844 ISSUE

   Whether Respondent should forfeit a $1,000.00 bond to the Petitioner ("Department") based on his sale of gasoline in violation of Department standards.

   
   

   CONCLUSIONS AND RECOMMENDATION

   
   

   Respondent violated the Department's gasoline and oil standards. He should, therefore (in lieu of confiscation) forfeit the cash bond he previously posted.

   
   

   BACKGROUND

   
   

   By Stop Sale Notice issued on November 8, 1979, the Petitioner ("Department") ordered the Respondent to stop the sale of No. 2 diesel fuel allegedly not meeting Department standards. By Release Notice or Agreement, executed that same day, the substandard diesel fuel was released to the

   Respondent's supplier for the purpose of bringing it up to standards. In connection with the Department's release of the fuel, the Respondent posted with the Department, by certified check, a bond in the amount of $1,000.00.

   
   

   By letter dated November 28, 1979, the Respondent requested a hearing in order to contest threatened forfeiture of the $1000 bond to the Department.

   
   

   At final hearing, the parties stipulated to the underlying facts of this case. The only issue in dispute was whether the $1,000.00 bond should be returned to Respondent, or forfeited to the Department. The Department called John Whitton as its witness, and offered Petitioner's exhibits 1 through 3, inclusive, each of which was admitted into evidence. The Respondent testified on his own behalf, and called his wife, Lois W. Thornton, as his only witness.

   
   

   Upon consideration of the evidence presented at hearing, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent owns and operates the Heart of Florida Truck/Auto Plaza ("Truck-Stop"), on U.S. 27 North, Haines City, Florida. When he purchased the truck-stop in October of 1978, he had no prior experience in the operation of such facilities. (Stipulation, Testimony of Respondent)

      
      

   2. During September of 1979, the Respondent's fuel supplier notified him that premium gasoline would no longer be delivered. Respondent decided, therefore, to convert his 6,000 gallon premium gasoline tank into a diesel fuel storage tank. (Stipulation, Testimony of Respondent)

      
      

   3. In order to convert the tank to diesel fuel usage, Respondent pumped out all but a residual consisting of approximately 100 gallons of gasoline and

      200 gallons of water. Even with the use of an auxiliary electric pump, the Respondent could not succeed in removing the remaining 238 gallons of residual. (Stipulation, Testimony of Respondent)

      
      

   4. He, then, sought advice from others on ways to empty the tank, including his jobber, diesel mechanic, truck drivers and trucking firms served by his truck-stop. While no one could suggest a method of removing the residual, they assured Respondent that truckers and diesel mechanics preferred a fuel mixture of 1 gallon of gasoline per 100 gallons of diesel fuel because of improved engine performance. (Testimony of Respondent)

      
      

   5. Based on such advice, the Respondent filled the tank in question with diesel fuel No. 2 and sold the resulting diesel/gasoline mixture to truckers as diesel fuel No. 2. Because of the presence of gasoline, this diesel fuel had a flash point at 440 F. (Testimony of Respondent, John Whitton, and petitioner's exhibit 3)

      
      

   6. In mixing the diesel with the gasoline in the tank, Respondent reasonably believed, in good faith, that the resulting mixture would not be hazardous or dangerous to its users. He did not know, and had not been previously notified, that the Department had set standards which strictly regulated the quality of gasoline and diesel fuel sold in Florida. Nor did he know that gasoline and diesel fuel sold in violation of such standards would be subject to confiscation and sale by the Department. (Testimony of Respondent)

   7. Although the Department regularly mails freight surcharge information every two weeks to retail gasoline outlets such as Respondent's, it does not periodically disseminate information on its petroleum regulatory program. Copies of the Department's rules, and gasoline standards, are available only on request. (Testimony of Lois W. Thornton and John Whitton)

      
      

   8. Each month, the Department issues approximately 100 Stop Sale Notices to gasoline retailers in Florida. Approximately 12 percent of these Notices are based on unlawful sale of fuel with flash points below Department standards. In such cases, the Department has consistently followed a practice of allowing the retailer to continue ownership of the fuel (in lieu of Department confiscation) only upon the posting of a bond equal to the value of the substandard fuel. However, notwithstanding the value of the substandard fuel, the Department does not require posting of a bond in excess of $1,000.00. Upon resolution of the administrative enforcement actions in favor of the Department, the bonds are forfeited to the Department, in lieu of confiscation. (Testimony of John Whitton)

      
      

   9. Since, in this case, the value of the offending fuel far exceeded

      $1,000.00, the Department allowed, and Respondent willingly posted a $1,000.00 bond with the Department. (Testimony of Respondent and John Whitton, and Petitioner's exhibit 2)

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

       
       

   11. Section 525.06, Florida Statutes (1978) , provides in pertinent part, as follows:

       
       

       "All oils . . . designated in this chapter that are used or intended to be used for power . . . purposes, when sold under a distinctive name that shall fall below the standard fixed by the Department . . . are declared to be illegal, and shall be sub- ject to confiscation and sale by the depart- ment." (Emphasis supplied)

       
       

   12. The Department, in implementing this statutory provision, has adopted, by rule, standards which apply generally to all gasolines offered for sale in Florida, Section 5F-2.01, Florida Administrative Code. Included in such standards is the following requirement for diesel fuel No. 2:

       
       

       "Section 5F-2.01, Standards.

       (4) Diesel Fuel Oil No. 2-D

       (b) Flash Point - ASTM Method D93.

       The flash point shall not be lower than 125 F.

       
       

       The Department has established, by competent substantial evidence, that the Respondent violated Section 525.06 and Rule 5F-2.01(4), by selling diesel fuel which fell below the standard fixed by the Department.

   13. In this case, the Respondent did not knowingly violate the law, nor sell his substandard diesel fuel with a criminal intent or evil state of mind.

       
       

   14. However, in enacting Section 525.06, Florida Statutes, the Florida Legislature has defined certain actions as unlawful, without regard to the mental attitude of an accused. Purity of motive of an accused, or his lack of moral turpitude are immaterial the only question is whether the prohibited act was done. See 9 Fla. Jur. Criminal Law s. 28, p. 53.

       
       

   15. The Department, by rule, requires that diesel fuel oil No. 2 found to have a flash point below 1000 F. "be subject to confiscation and sale by order of the Department." Section 5F-2.02(3)(a), Florida Administrative Code. However, in its prior practice, the Department has sought to ameliorate the harshness of confiscation by allowing an accused to retain ownership of the confiscated fuel and agree, instead, to forfeit a cash bond of lesser value.

       
       

   16. In this case, forfeiture of the posted bond is a necessary and direct result of the Department following its prior practice. Deviation from that practice in this case must be adequately explained and justified, Section 120.68 (12)(b) , Florida Statutes. The Respondent's lack of knowledge of the unlawfulness of his acts cannot constitute an adequate basis for deviation from the agency's bond forfeiture practice. A contrary conclusion would significantly compromise the Department's ability to effectively enforce Section 525.06, Florida Statutes, and implementing rules.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That, in accordance with the Release Notice or Agreement of the parties, the Respondent's cash bond posted pursuant thereto be forfeited to the Department, and paid into the State Treasury pursuant to Section 525.10, Florida Statutes.

DONE and ENTERED this 3rd day of April, 1980, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Leslie McLeod, Jr., Esquire Department of Agriculture

and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301

F. J. Thornton, Jr.

Truck Stop 27

Post Office Box 905

Haines City, Florida 33844

Docket for Case No: 80-000031

Orders for Case No: 80-000031