STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-752

)

PRONTO CAR WASH, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in St. Petersburg, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, R.

1. Carpenter, on July 16, 1980. The parties were represented by:

   
   

   For Petitioner: Robert A. Chastain, Esquire

   General Counsel

   Department of Agriculture and Consumer Services

   Mayo Building

   Tallahassee, Florida 32301

   
   

   For Respondent: Mr. Stephenson Anderson, Pro Se Pronto Car Wash

   220 34th Street North

   St. Petersburg, Florida 33713

   
   

   This matter arose from a stop-sale order issued by Petitioner against Respondent on allegedly contaminated diesel fuel being sold at his service station. The fuel was released to Respondent upon the posting of a bond in lieu of confiscation. Respondent requested an administrative hearing to determine the propriety of Petitioner's action.

   
   

   FINDINGS OF FACT

   
   

   1. On February 27, 1980, Respondent converted one of its service station fuel tanks from gasoline to diesel. The tank was cleaned by Garrison Petroleum Equipment Company at Pinellas Park. Respondent paid $67.08 for this service. That same day, Respondent received 5,176 gallons of No. 2 diesel fuel from Jack Russell Oil Company, Inc., of Clearwater, a Union 76 dealer.

      
      

   2. On March 18, 1980, a standards inspector employed by Petitioner took samples from the Respondent's gasoline and diesel pumps. These samples were delivered to Petitioner's portable laboratory in Clearwater where they were analyzed. The gasoline was found to be satisfactory, but the diesel sample showed fuel contamination. The tests were conducted in accordance with the methods and standards established by Rule 5F-2.01(4)(b), Florida Administrative

      Code. Specifically, the "flash point" of the diesel sample was 88 degrees F, but must be 125 degrees F or above to meet the established standard.

      
      

   3. Petitioner's inspector then returned to the Pronto Car Wash station where he issued a stop-sale order to Respondent. Subsequently, the inspector accepted Respondent's cash bond in lieu of fuel confiscation. This procedure, agreed to by both parties, allowed Respondent to pay $865.36 to the State of Florida and retain the contaminated fuel.

      
      

   4. Respondent originally paid $5,286.25 for 5,176 gallons of diesel fuel. He had sold 736 gallons of this amount at the time of the stop-sale order on March 18, 1980. Total sales of this diesel fuel amounted to $865.36, which was the amount of bond demanded by Petitioner. Respondent paid $200 to Patriot Oil, Inc., to remove the contaminated fuel, but received a $3,225 credit for this fuel.

      
      

   5. Respondent does not deny that the fuel was contaminated, but seeks to establish that he acted in good faith. Respondent had the tank cleaned prior to the diesel changeover and dealt with established tank cleaning and fuel wholesaling companies. In addition, he kept the tank locked at all times after delivery of the fuel.

      
      

   6. Respondent does not contest forfeiture of his bond, but seeks refunds of state and federal taxes paid on the unsold fuel. However, Respondent was correctly informed that refund of tax payments will require him to communicate with agencies which are not parties to this proceeding.

      
      

      CONCLUSIONS OF LAW

      
      

   7. Section 525.06, Florida Statutes (1979), provides in part:

      
      

      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 dis- tinctive 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 . . . .

      
      

   8. The above statute has as its purpose the protection of consumers, and does not provide for the determination of fault or liability. Therefore, Respondent's good faith efforts to prevent fuel contamination are not relevant to the issues in this proceeding.

      
      

   9. Rule 5F-2.01, Florida Administrative Code, provides in part:

      
      

      (4) Diesel Fuel Oil No. 2-D

      * * *

      (b) Flash Point --ASTM Method D93. The flash point shall be not lower than 125 degrees F.

      
      

   10. There is no dispute that the confiscated diesel fuel failed to meet the standard set forth above. Therefore, Petitioner had the requisite authority

and duty to confiscate the unsold diesel fuel. In accepting the bonding arrangement, Respondent avoided the greater financial loss associated with confiscation, and is now bound by this agreement.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That Petitioner enter its order declaring forfeiture of Respondent's

$865.36 bond posted in lieu of confiscation of contaminated diesel fuel. RECOMMENDED this 7th day of August, 1980, in Tallahassee, Florida.

COPIES FURNISHED:

Stephenson Anderson Pronto Car Wash

220 34th Street North

St. Petersburg, Florida 33713

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building

Tallahassee, Florida 32301

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-8584

Docket for Case No: 80-000752

Orders for Case No: 80-000752