STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE AND CONSUMER ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2945

) SOUTHEAST OIL & DEVELOPMENT ) CORPORATION, d/b/a CHUCK'S )

CAR WASH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 9, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Department of Agriculture and Consumer Services

513 Mayo Building Tallahassee, Florida 32301

For Respondent: No appearance. 1/

ISSUE

The issue posed for decision herein is whether or not Respondent was selling "polluted" gasoline in violation of the standards set forth in Chapter 525.06, Florida Statutes (1980), and Rule Chapter 5F-2, Florida Administrative Code.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

1. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980). 2/

   
   

2. The Respondent is a corporation which sells products in the State of Florida at an outlet located at 1050 U.S. 98 North in Brooksville, Florida.

3. On November 11, 1981, a sample of three (3) petroleum products, i.e., regular gasoline, unleaded and diesel fuel was taken from Respondent's location which is known as Chuck's Car Wash. A laboratory analysis by Petitioner revealed that the unleaded gasoline showed a lead content above .110 grams per gallon. This reading is above the .05 gram per gallon maximum allowable lead content as set forth in Rule Subsection 5F-2.01(1)5(j), Florida Administrative Code. An analysis of the regular gasoline revealed an End Point of 494 degrees

   F. This reading is above the 446 degrees F maximum allowable End Point as set forth in Rule Subsection 5F-2.01(1)(c)4, Florida Administrative Code. Finally, an examination of the diesel product revealed a Flash Point below 60 degrees F. This reading is below the 120 degrees F allowable Flash Point as set forth in Rule Subsection 5F-2.01(3)(b), Florida Administrative Code.

   
   

4. The results of these analyses were made known to Respondent and he was afforded the option of either immediately halting the sale of the products or to post a cash bond in the amount of $1,000.00 for 5,900 gallons sold of the above- referred products in lieu of confiscation of the remaining 1,681 gallons of the products. (See Release Notice or Agreement dated November 12, 1981.)

   Respondent posted a bond in the amount of $1,000.00. In the Release Notice, Respondent was advised that all three (3) products were to be removed from its tanks and new products dropped. Respondent was also afforded the opportunity to remove the no-lead which could he sold as leaded regular with the remaining two

   (2) products to be used in Respondent's private equipment.

   
   

5. Petitioner's inspector who works out of portable laboratory No. 3, Jamie Gillespie, removed the samples from Respondent's tanks and conducted the analyses of the products. Inspector Gillespie made Respondent aware of his findings and his decision to post a Stop Sale Notice of the subject products. Inspector Gillespie obtained the cash bond from Respondent.

   
   

6. Use of the above-referred products may cause catalytic converters to become contaminated; restrict exhaust systems and release excessive pollutants in the atmosphere. Use of these products also may clog fuel filters and carburetors. The low Flash Point from the diesel product may cause an engine to "run away" and in some instances may blow the head assembly from a diesel engine. Additionally, use of diesel with such a low Flash Point may contaminate dry injector nozzles and shorten the life of a diesel engine. (Testimony of Gillespie and Morris, inspectors and chemists employed by Petitioner, who conducted analyses of the subject products.)

   
   

7. As stated, Respondent did not appear at the hearing to contest or otherwise rebut the charges alleged by Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner is derived from Chapter 525, Florida Statutes (1980), and Rule Chapter 5F-2, Florida Administrative Code.

1. Rule 5F-2.01(1)5(j), Florida Administrative Code, makes it a violation to offer for sale unleaded gasoline which has a lead content above .05 grams per gallon. The Respondent offered and in fact sold unleaded gasoline with a lead content above .110 grams per gallon, in violation of the aforementioned rule. This violation subjects the Respondent to the confiscation of the above product in accordance with the penalty provisions set forth in Rule Subsection 5F- 2.02(2)(c), Florida Administrative Code. In lieu of such confiscation, the Petitioner accepted a bond which may be converted to a fine.

   
   

2. Rule Subsection 5F-2.01(1)(c)4, Florida Administrative Code, makes it a violation to offer for sale regular gasoline which has an End Point above 446 degrees F.

   
   

3. The Respondent offered and in fact sold regular gasoline with an End Point of 494 degrees F and as such, violated the aforementioned rule. Such a violation subjects the Respondent to confiscation of this gasoline remaining in the tanks in accordance with the penalty provisions set forth in Rule Subsection 5F-2.02(2)(c), Florida Administrative Code. In lieu of such confiscation, the Petitioner accepted a bond which may be converted to a fine.

   
   

4. Rule Subsection 5F-2.01(3)(b), Florida Administrative Code, makes it a violation to offer for sale diesel fuel which has a Flash Point below 125 degrees F.

   
   

5. The Respondent offered and in fact did sell diesel fuel which had a Flash Point of 60 degrees F and therefore, violated the above-cited rule. Such a violation subjects the Respondent to the confiscation of the product remaining in the tank, in accordance with the penalty provisions set forth in Rule Subsection 5F-2.02(2)(c), Florida Administrative Code. In lieu of such confiscation, Petitioner accepted a bond which may be converted into a fine.

   
   

6. Based on Respondent's failure to appear at the hearing or otherwise offer evidence in mitigation or to otherwise refute the facts as found herein, it is hereby concluded that the $1,000.00 bond placed herein by Respondent should be estreated in lieu of confiscation.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law and the entire record compiled herein, it is

RECOMMENDED:

That a final order be entered finding the Respondent in violation of Rule Subsections 5F-2.01(1)5(j), 5F-2.01(1)(c)4, and 5F-2.01(3)(b), Florida Administrative Code, and thereby, Respondent should be subjected to the penalties set forth in Section 525.06, Florida Statutes (1980), and the

$1,000.00 bond posted be estreated.

RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 16th day of April, 1982.

ENDNOTES

1/ Respondent was duly noticed of the subject hearing by a Notice of Hearing dated December 9, 1981.

2/ Official Notice of Chapter 525, Florida Statutes, and Rule Chapter 5F-2, Florida Administrative Code, was taken.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture

and Consumer Services

513 Mayo Building Tallahassee, Florida 32301

Southeast Oil & Development Corp. Attention: Dave Palazzo

Post Office Box 17483

U.S. Highway 301 North and Fowler Avenue

Tampa, Florida 33682

Docket for Case No: 81-002945

Orders for Case No: 81-002945