STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2741

)

HARTMAN OIL COMPANY, d/b/a ) D & D DIESEL GAS SERVICE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer with the Division of Administrative Hearings, in West Palm Beach, Florida, on April 6, 1982.

APPEARANCES

For Petitioner: Les McCloud, Esquire

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

For Respondent: Hadley Hartman

Post Office Box 443 Stuart, Florida 33494

The issue presented here concerns a Stop Sale Notice filed by the Petitioner, The State of Florida/Department of Agriculture and Consumer Services, against the Respondent, Hartman Oil Company, d/b/a D & D Diesel Gas Service Center, pursuant to Section 525.06, Florida Statutes (1980). The Petitioner contends that the Respondent supplied diesel fuel for sale which was characterized by an excessively low flash point (90 degrees) instead of the legally acceptable minimum flash point for the subject number two diesel fuel of

125 degrees. The Respondent was required to post a refundable bond of $1,000 pursuant to the above statute, in lieu of confiscation of the fuel, pending resolution of this dispute.

FINDINGS OF FACT

1. The Petitioner, State of Florida/Department of Agriculture and Consumer Services, is an agency of government which has, among it other responsibilities, the requirement to establish and enforce standards related to minimum allowable Fahrenheit-degree-measured "flash point" as a standard for diesel fuel sold to the motoring public. This regulation is designed to avoid the potential destruction of diesel engines in various types of motor vehicles and other equipment resulting from the use of low flash point diesel fuel which is of an

   excessively volatile nature, somewhat akin to gasoline, for which the engines are not designed. Excessive stresses generated by burning such volatile fuel in diesel engines can result in their destruction or severe damage and possibly even injuries to operators of vehicles so powered.

   
   

2. The Respondent operated a retail gasoline and diesel fuel service station in Ft. Pierce, Florida. Sometime prior to October 1, 1981, a representative of the Petitioner obtained a sample of diesel fuel in the amount of approximately one quart in a clear glass container, which he forwarded to the Petitioner's laboratory for testing. After the results of the laboratory testing became available, a Stop Sale Notice was issued to the Respondent on October 1, 1981, wherein he was informed that he must stop the sale of diesel fuel on the premises of the station at 3224 North Federal Highway, Ft. Pierce, Florida, on the ground that the diesel tested consisted of 90 degree flash point fuel. The parties agreed that total sales before the Stop Sale Notice amounted to more than $1,000 worth of the subject diesel, hence the $1,000 amount of the bond which was posted in lieu of the total confiscation of the product.

   
   

3. The Respondent established that the station had recently been opened in July, 1981, after being closed for a substantial period of time. The Respondent was of the belief that the storage tanks had been pumped out and refilled prior to his opening for business and had no complaints regarding the quality of the diesel fuel. Before the tanks were filled he told fuel truck delivery drivers to "stick" the tanks to ascertain if there was any residual fuel or gasoline in them before filling them with new fuel when he opened for business. He was under the impression that this had been done. He also established that he corrected the problem with no hesitation as soon as he was informed that the diesel fuel did not meet legal standards. The Petitioner agreed that the Respondent had not acted in bad faith, but rather this was an inadvertent mistake or oversight on the part of the Respondent which he tried to rectify as soon as he became aware of it. The Respondent has never been found guilty of a violation previously.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. In consideration of the above findings of fact, it is concluded that the Respondent supplied diesel fuel to customers at its station at 3224 North Federal Highway, West Palm Beach, Florida, with a flash point of 90 degrees which is below that legally required by rule Subsection 5F-2.01(4)(b), Florida Administrative Code. Section 525.06, Florida Statutes (1980), provides as follows:

Gasoline, etc., below standard, subject to confiscation. - All oils enumerated and designated in this chapter that are used or intended to be used for power, illuminating, cooking, or heating 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. 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 disposition. The amount of this bond shall be limited to $1,000. 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, not to exceed $1,000.

In view of the authority contained in Section 525.06, the Petitioner was entitled to accept a refundable bond equal to the retail price of the diesel fuel sold to the general public since the time of the last delivery to the station, not to exceed $1,000. The evidence establishes that in excess of

$1,000 worth of the diesel was sold to the motoring public and that the Petitioner was justified in initially collecting the $1,000 bond. Inasmuch as the parties agree that this was an inadvertent mistake, that the Respondent was totally cooperative and made immediate efforts to correct the illegal nature of the fuel he sold and in view of the fact that he had no knowledge of its illegal nature until informed of it by the representative of the Petitioner, these factors should be considered in mitigation of the forfeiture to be extracted from the Respondent. The Respondent intends to more closely supervise his fuel deliveries and sales to the public in the future and the error was shown to possibly have been caused by the driver of the diesel fuel delivery truck who failed to check the tanks prior to filling them with diesel. In consideration of these factors, partial mitigation of the forfeiture sought from the Respondent is warranted.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED:

That the Respondent be required to forfeit $500 of the $1,000 bond posted and the unforfeited $500 be returned to the Respondent.

DONE and ENTERED this 19th day of July, 1982 in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982.

COPIES FURNISHED:

Les McCloud, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Hadley Hartman

Post Office Box 443 Stuart, Florida 33494

The Honorable Doyle Conner Commissioner, Department of

Agriculture and Consumer Services The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-002741

Orders for Case No: 81-002741