Judges: SHARYN L. SMITH
Agency: Department of Agriculture and Consumer Services
Latest Update: May 01, 1981
Summary: Facts establish and not disputed that Respondent had gasoline which exceeded American Society of Testing and Materials (ASTM) standards. Bond refund posted in lieu of gasoline confiscation denied.
80-0795.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE AND CONSUMER ) SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 80-795
) DIXIE OIL COMPANY OF FLA, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a final hearing in this case on October 7, 1980, in Tallahassee, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Robert Chastain, Esquire
General Counsel Department of Agriculture
and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301
For Respondent: No appearance was made.
Subsequent to the hearing a representative of Dixie Oil Company, Mr. Reheudean Denby, Post Office Box 1007, Tifton, Georgia, requested leave to submit post-hearing written argument regarding the Petitioner's contentions. Petitioner concurred in the Respondent's request and the Hearing Officer permitted the late filing of post hearing written argument.
By letter dated April 15, 1980, Mr. Reheudean Denby, Vice President, Dixie Oil Company, Respondent, requested a formal administrative hearing on the posting of a $1,000 bond which was required by the Petitioner, Department of Agriculture and Consumer Services, in order to release leaded gasoline for public sale.
The issue in this case is whether the Respondent is entitled to the return of the $1,000 bond posted to obtain the release of 3,548 gallons of gasoline taken from an unleaded pump at the Bay Station, located at SR 329 and I-75 in Micanopy, Florida, on April 10, 1980, which was contaminated with either diesel or kerosene fuel. In post hearing argument the Respondent did not dispute the allegation that the gas contained an excessive amount of contaminants but rather that Dixie Oil was entitled to a refund due to its past record and the steps it
has taken to ensure that no contaminated unleaded gasoline is sold in the future.
At the final hearing Composite Exhibit 1(a)-(c) was admitted into evidence.
Three Department of Agriculture and Consumer Services employees, Mr. Randy Herring, District Petroleum Inspector, Mr. Pat Flanagan, Graduate Chemist and Mr. John Whitton, Chief, Bureau of Petroleum Inspection, testified on behalf of the Petitioner.
FINDINGS OF FACT
On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel.
The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at
50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+.
Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated.
The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment.
Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated.
The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Section 525.06, Florida Statutes, provides in pertinent part as follows:
All oils enumerated and desig- nated in this Chapter that are
used for 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....
Pursuant to Rule 5F-2.01(1)(b-c), Florida Administrative Code, the Distillation Range of unleaded gasoline shall not exceed the standards established by the ASTM Method D86.
The facts established and the Petitioner did not dispute that the gasoline in question exceeded the ASTM standards set forth in Rule 5F-2.01(1)(b-
and, therefore, was illegally offered for sale to the public as unleaded gasoline. Neither the statute nor the rule require the Department to prove that a vendor intended to sell illegal gasoline as unleaded or had knowledge of such occurrence in order to prove a violation.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline.
DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Oakland Building
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981.
COPIES FURNISHED:
Robert A. Chastain, Esquire General Counsel
Department of Agriculture and Consumer Services Room 513, Mayo Building
Tallahassee, Florida 32301
Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc.
Post Office Box 1007 Tifton, Georgia
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE AND CONSUMER ) SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 80-795
) DIXIE OIL COMPANY OF FLA. INC., )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a final hearing in this case on October 7, 1980, in Tallahassee, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Robert Chastain, Esquire
General Counsel Department of Agriculture
and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301
For Respondent: No appearance was made.
Subsequent to the hearing a representative of Dixie Oil Company, Mr. Reheudean Denby, Post Office Box 1107, Tifton, Georgia, requested leave to submit post-hearing written argument regarding the Petitioner's contentions. Petitioner concurred in the Respondent's request and the Hearing Officer permitted the late filing of post-hearing written argument.
By letter dated April 15, 1980, Mr. Reheudean Denby, Vice President, Dixie Oil Company, Respondent, requested a formal administrative hearing on the posting of a $1,000 bond which was required by the Petitioner, Department of Agriculture and Consumer Services, in order to release leaded gasoline for public sale.
The issue in this case is whether the Respondent is entitled to the return of the $1,000 bond posted to obtain the release of 3,548 gallons of gasoline taken from an unleaded pump at the Bay Station, located at SR 329 and I-75 in Micanopy, Florida, on April 10, 1980, which was contaminated with either diesel or kerosene fuel. In post-hearing argument the Respondent did not dispute the allegation that the gas contained an excessive amount of contaminants but rather that Dixie Oil was entitled to a refund due to its past record and the steps It has taken to ensure that no contaminated unleaded gasoline is sold in the future.
At the final hearing Composite Exhibit 1(a)-(c) was admitted into evidence.
Three Department of Agriculture and Consumer Services employees, Mr. Randy Herring, District Petroleum Inspector, Mr. Pat Flanagan, Graduate Chemist, and Mr. John Whitton, Chief, Bureau of Petroleum Inspection, testified on behalf of the Petitioner.
FINDINGS OF FACT
On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel.
The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at the 50 percent and 90 percent recovery temperatures as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product when tested had a 50 percent recovery temperature of 322 degrees F (maximum allowable is 240 degrees F) and a
90 percent recovery temperature of 536 degrees F (maximum allowable is 365 degrees F). The end point exceeded the 437 degrees F limit by testing at 580 degrees F+.
Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection, in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 degrees F in both tests which indicated the product was grossly contaminated.
The Respondent was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment.
Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards.
This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated.
The Respondent has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Section 525.06, Florida Statutes, provides in pertinent part as follows:
All oils enumerated and de- signated in this Chapter that are used for 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
be illegal, and shall be subject to confiscation and sale by order of the Department. . . .
Pursuant to Rule 5F-2.01(1)(b-c), Florida Administrative Code, the distillation range of unleaded gasoline shall not exceed the standards established by the ASTM Method D86.
The facts established and the Respondent did not dispute that the gasoline in question exceeded the ASTM standards set forth in Rule 5F-2.01(1)(b-
c) and, therefore, was illegally offered for sale to the public as unleaded gasoline. Neither the statute nor the rule require the Department to prove that a vendor intended to sell illegal gasoline as unleaded or had knowledge of such occurrence in order to prove a violation.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline.
DONE and ORDERED this 10th day of April, 1981, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Oakland Building
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1981.
COPIES FURNISHED:
Robert A. Chastain Mr. Reheudean Denby
General Counsel Vice President Department of Agriculture and Dixie Oil Company of Consumer Services Fla. Inc.
Room 513, Mayo Building Post Office Box 1007 Tallahassee, Florida 32301 Tifton, Georgia
Docket for Case No: 80-000795
Orders for Case No: 80-000795
| Issue Date |
Document |
Summary |
|
Apr. 30, 1981 |
Agency Final Order
|
|
|
Mar. 09, 1981 |
Recommended Order
|
Facts establish and not disputed that Respondent had gasoline which exceeded American Society of Testing and Materials (ASTM) standards. Bond refund posted in lieu of gasoline confiscation denied.
|
