STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1365

)

SUNSHINE-JR. STORES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the Board of County Commissioners' Meeting Room, in the County Office Building, 19 Northwest Pine Avenue, Ocala, Florida. The hearing commenced at 11:00 A.M., July 17, 1981.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Florida Department of Agriculture and Consumer Services

The Mayo Building, Room 513 Tallahassee, Florida 32301

For Respondent: Robert Landingham, Manager

Gasoline Division Sunshine-Jr. Stores, Inc. Post Office Box 2498

Panama City, Florida 32401

ISSUE

The issue presented here concerns the alleged violation of the Antiknock (Octane) Index, Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. In particular, tide Respondent is accused of having gasoline in a pump labeled as "premium leaded" which carried an octane reading of 91.9 at a time when the registration for "premium leaded" on file with the Department of Agriculture and Consumer Services indicated a rating of 95 octane.

FINDINGS OF FACT 1/

1. On April 14, 1981, an employee of the Petitioner went to the Sunshine- Jr. Stores, Inc.'s, Store No. 335, located at Highway 40 and Interstate 75, in Marion County, Florida, for purposes of inspecting gasoline products being dispensed from that facility. One of the pumps at the store was labelled "premium leaded" gasoline and carried an octane rating on the pump as 91.5.

   (This octane rating was the same as was displayed on February 26, 1981, the date of the last inspection, when a sample test revealed a rating of 94.4.)

   
   

2. The April 14, 1981, sample of fuel taken from the pump marked premium leaded," 91.5 octane, was analyzed, and the octane rating was shown to be 91.9.

   
   

3. On April 14, 1981, the date of the more recent test, the Antiknock Index (Octane) in the sworn registration by the Respondent on file with the Petitioner, indicated that the "premium leaded" gasoline being dispensed was 95 octane.

   
   

4. In view of the fact that the difference between the test reading taken on April 14, 1981, from the "premium leaded' pump, and that reading registered with the Petitioner exceeded the factor (1), to the extent of being a (3.1) factor, a claim was brought against the Respondent by the Petitioner based upon the alleged violation of Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. The action was in the form of a Stop Sale Notice. The fuel was then released to the Respondent upon the basis of a Release Notice or Agreement, by which the Petitioner received a $1,000.00 bond in the form of a cashier's check, in lieu of the confiscation of the gasoline in the "premium leaded" pump.

   
   

5. Subsequent to the inspection of April 14, 1981, in which the gasoline was sampled in the pump marked "premium leaded," that dispenser has been relabelled to reflect "oremium unleaded" fuel and the octane rating displayed on the pump continues to be 91.5.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

7. Rule Subsection 5F-2.01(1)(i), Florida Administrative Code, indicates that the Antiknock Index (Octane) for the product to be sold shall not be more than (1) factor less than the Antiknock Index (Octane) specified in the sworn registration. The sample taken in the "premium leaded" pump on April 14, 1981, read 91.9 Antiknock Index (Octane) at a time when the sworn registration showed that the "premium leaded" Antiknock Index (Octane) was 95. Therefore, it was (3.9) factors less and in excess of the allowable variation, and in violation of the rule.

   
   

8. Under the circumstances, the Department, in keeping with Section 525.06, Florida Statutes, was allowed to accept a bond in cash or certified check in an amount not to exceed $1,000.00, in lieu of confiscation of the product being discensed in the "premium leaded" pump, and is allowed to make an assessment against that bond amount, the assessment not to exceed $1,000.00.

RECOMMENDATION

The facts presented in this cause show that the customers of the Respondent were not being told that the "premium leaded" fuel that they were being sold carried a 95 octane rating, instead, the rating shown was 91.5, which was less than the 91.9 reading found in testing the fuel extracted. In addition, the Respondent eventually took steps to identify for the public the fact that the fuel in the tank was unleaded and not leaded fuel. The reason for delay is explained in comments by the Respondent's representative offered in mitigation of any penalty to be imposed. He stated that the problem with labe11ing had occurred after an attempt on the Respondent's part to switch from "premium

leaded" fuel to premium unleaded" fuel had been delayed, causing a concern that the amount of "premium leaded" remaining in the tank when the transition period occurred not contaminate the "premium unleaded" fuel that was being used to replace the former "premium leaded" and mislead a customer by causing him to believe that he was receiving "premium unleaded," when he was in fact receiving a blend of premium fuel containing lead.

Technically, the Respondent dispensed fuel from a pump labelled "premium leaded" which was below standards when contrasted with the sworn registration Antiknock Index (octane); however, in view of the fact that the pump indicated an octane rating lower than the test rating on April 14, 1981, it is,

RECOMMENDED:

That no assessment be made and that the bond amount of $1,000.00 be returned to the Respondent.

DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS

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 30th day of July, 1981.

ENDNOTE

1/ The facts that are presented through this Recommended order are as agreed to by the parties, in that, at the time of hearing, the representative for the Respondent indicated that the Respondent did not take issue with any of the material facts in this cause and was appearing for purposes of offering a statement or explanation in mitigation. Notwithstanding a lack of material dispute in fact, the parties, by their actions, requested the Division of Administrative Hearings to conduct a formal hearing pursuant to Subsection 120.57(1), Florida Statutes.

COPIES FURNISHED:

Robert A. Chastain, Esquire John Whitton, Bureau Chief Florida Department of Agriculture Department of Agriculture and Consumer Services Division of Standards

The Mayo Building - Room 513 Bureau of Petroleum Tallahassee, Florida 32301 The Mayo Building

Tallahassee, Florida 32301

Robert Landinqham, Manager Gasoline Division

Sunshine-Jr. Stores, Inc. Post Office Box 2498

Panama City, Florida 32401

Docket for Case No: 81-001365

Orders for Case No: 81-001365