STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2174

) SMITH BROTHERS OIL CO., INC. AND ) BARNETT'S TEXACO STATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was scheduled in this case on February 10, 1982, in Bartow, Florida. Prior to the hearing, counsel for the Respondents, Smith Brothers Oil Co., Inc. and Barnett's Texaco Station, with the concurrence of the Petitioner, requested that the hearing be waived and the case decided on the basis of the facts as agreed to by the parties The parties were represented as follows:

For Petitioner: Robert A. Chastain, Esquire

General Counsel Department of Agriculture

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

For Respondent: Wallace L. Storey, Esquire

160 South Broadway Bartow, Florida 33830

The issue in this case is whether the Respondents Smith Brothers Oil Co., Inc. and Barnett's Texaco Station are entitled to the return of $490 posted as an assessment equal to the retail value of the product sold to consumers from a super lead free pump at Barnett's Texaco Station, 1798 Broadway, Fort Meade, Florida.

The gasoline sample report dated August 6, 1981, stop-sale notice and release, were admitted as Hearing Officer Exhibits, 1, 2 and 3, respectively.

FINDINGS OF FACT

1. On August 6, 1981, an inspector employed by the Petitioner Department of Agriculture and Consumer Services took gasoline samples from "super lead free" and "lead free" pumps Identified as "Ben 2096" and "Ben 1693", respectively, at Barnett's Texaco Station, in Fort Meade, Florida.

2. The samples were tested for suspicious substances and it was found that the "super lead free" had an octane level of 87.8. The sample from the "lead free" pump contained an octane level of 91.5. Based upon this information, the chemist noted that the "super lead free" and "lead free" gasolines were probably placed in the wrong pumps at the station. The "super lead free" sample was legal as "lead free" and the "lead free" sample had an octane which would qualify it as "super lead free."

   
   

3. As a result of the test results, a stop-sale notice was issued by the Department against the "super lead free" pump.

   
   

4. Since approximately 350 gallons of "lead free" regular was sold as "super unleaded", an assessment was made by the Department equal to retail value of the product sold to retail customers.

   
   

5. Upon investigation, it was determined that the "super lead free" and "lead free" gasolines were not placed in the wrong pumps but rather an employee of Barnett's Texaco inadvertently placed the wrong panel indicator on the two adjacent pumps during a price change.

   
   

6. The problem was quickly resolved and special precautionary procedures have been instituted to prevent this error from happening in the future. These procedures include a double check by different personnel each time a price change requires removal of panels. Additionally, Smith Brothers Oil Co., Inc., will double check the dealer to insure this procedure is followed.

   
   

7. The facts set forth above are not in dispute. The only dispute between the parties 15 whether under the facts of this case the Respondent Smith Brothers Oil Co. Inc. will entitled to a return of all or part of its $490.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 525.06, Florida Statutes (Supp. 1980) provides as follows:

   
   

   All oils enumcrated 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 by order of the department. Instead of confiscation, a

   refundable bond in cash or by certified check in the amount of the value of the product subject to confiscation may be accepted by the department, pending legal dispostion...

   If any of the product has been sold to retail customers, the department is authorized to make an assessment equal to the retail value of the product sold.

10. The parties have agreed that the 350 gallons sold to the public as "super lead free" were in fact "lead free", did not meet the Octane Index requirements of Rule 5F-2.01(1)(i), Florida Administrative Code, and were therefore, illegally offered for sale to the public. Neither the statute nor the rule require the Department to prove that a vendor intended to sell illegally gasoline in order to prove a violation.

    
    

11. The facts of this case are somewhat unusual in that the party at fault was not the Respondent Smith Brothers Oil Co., Inc., but rather the station employee who transposed the panels on the two pumps. However, when this was brought to the Respondent's attention by the Department, the problem was corrected and remedial steps have been taken by both Respondents to ensure that there is no reoccurrence. Although the consumers who purchased the 350 gallons of super unleaded gasoline from the station did not receive what they thought they had paid for, there is nothing to suggest that the station's mistake could have caused damage to any automobile.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department enter a Final Order returning $245 to the Respondent. DONE and ORDERED this 14th day of April, 1982, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1982

COPIES FURNISHED:

Robert A. Chastain, Esquire Doyle Conner, Commissioner General Counsel Department of Agriculture Department of Agriculture and Consumer Services

and Consumer Services The Capitol

Mayo Building, Room 513 Tallahassee, Florida 32301 Tallahassee, Florida 32301

Wallace W. Storey, Esquire

160 South Broadway Bartow, Florida 33830

Docket for Case No: 81-002174

Orders for Case No: 81-002174