STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-438

)

DICKENS OIL COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on August 21, 1981, in Panama City, Florida, The following appearances were entered:

APPEARANCES

For Petitioner: Les McLeod, Esquire

Department of Agriculture and Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32301

For Respondent: William D. Dickens

Dickens Oil Company 1706 Maple Avenue

Panama City, Florida 32405

The issue for determination in this case is whether the Respondent, Dickens Oil Company, is entitled to the return of a $1,000 cash bond posted to obtain the release of approximately 1,600 gallons of gasoline taken from a unleaded pump at the June Avenue Service Station, located at 1109 West U.S. 98 in Panama City, Florida, on February 16, 1981, end which was allegedly contaminated by leaded gasoline. In post-hearing argument, the Respondent did not dispute the allegation that the gasoline was illegal, but rather that Dickens Oil gas entitled to a partial refund because of the slight amount of contamination present and doubts as to the source of the contaminant.

At the final hearing. Petitioner's Composite Exhibit 1 (a)-(c) was admitted into evidence. Two Department of Agriculture and Consumer Service employees, Mr. Pat Flanagan, Graduate Chemist and Mr. John Whitton, Chief of the Bureau of Petroleum Inspection, testified for the Petitioner. Mr. William D. Dickens, President, Dickens Oil Company, testified for the Respondent.

Prior to the hearing, Mr. Dickens was found qualified to represent Dickens Oil Company in this proceeding by the Hearing Officer following the required inquiry. See Model Rule of Procedure 28-5.1055, Florida Administrative Code.

FINDINGS OF FACT

1. On February 16, 1981, John Flanagan, a Graduate Chemist and Inspector for the Petitioner, Department of Agriculture and Consumer Services, (hereafter "Department") took a gasoline sample (R-247) from an unleaded pump identified as 45321" at the June Avenue Service Station, 1109 West U.S. 98, Panama City, Florida. This sample was field tested and then forwarded to the lab in Tallahassee where it was again tested on February 20, 1981 and found to be contaminated with leaded gasoline. (Testimony of Whitton, Flanagan, Petitioner's Composite Exhibit 1).

   
   

2. As a result of the field test the Department issued a stop sale notice to Mr. Al Barry on February 16, 1981.

   
   

3. The laboratory analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials ("ASTN") for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained

0.088 gram of lead per gallon and therefore violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon.

4 The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of the remaining 1,600 gallons of illegal gasoline for sale as leaded regular.

1. The Respondent has no knowledge as to how the unleaded gasoline was contaminated. The gasoline was purchased from the Hill Petroleum Company and supplied by the Respondent to the June Avenue Service Station as unleaded gasoline.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

   
   

3. Section 525.06, Florida Statutes, 1980 Supplement, provides in pertinent part as follows:

   
   

   All oils enumerated and designated in this chapter that are used or intended to be used for power. . .when sold under a distinctive name that shall fall below the standard fixed by the Department. . are declared to be illegal and shall be subject to confiscation and sale. . Instead of confiscation, a refundable bond. . in the amount of the value of the product subject to confiscation may be accepted by the Department, pending legal disposition. The amount of the bond shall be limited to $1,000..

4. Pursuant to Rule 5F-2.01(1)(j), Florida Administrative Code, the amount of lead contained in unleaded gasoline shall not exceed 0.05 gram of lead per gallon as established by lead ASTM standards - method 2599, 3229 or 3237.

   
   

5. The facts establish and the Respondent did not dispute that the gasoline in question exceeded the ASTM standards set forth in Rule 5F- 2.01(1)(j), Florida Administrative Code, and therefore, was illegally offered for sale to the public. Neither the statute nor rule require the Department to prove that a vendor intended to sell illegal leaded gasoline as unleaded or had knowledge of how the gasoline was contaminated 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 approximately 1,600 gallons of contaminated unleaded gasoline.

DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981.

COPIES FURNISHED:

Les McLeod, Esquire Department of Agriculture and Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32301

William D. Dickens Dickens Oil Company 1706 Maple Avenue

Panama City, Florida 32405

John Whitton, Chief

Bureau of Petroleum Inspection Division of Standards

Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 81-000438

Orders for Case No: 81-000438