Judges: D. R. ALEXANDER
Agency: Department of Agriculture and Consumer Services
Latest Update: May 12, 1982
Summary: Charge that dealer sold contaminated gas sustained.
81-3217STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 81-3217
)
BIG "S" OIL COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Pensacola, Florida, on February 16, 1982.
APPEARANCES
For Petitioner: Leslie McLeod, Jr., Esquire
Mayo Building, Room 513 Tallahassee, Florida 32301
For Respondent: No appearance
On December 9, 1981, the Department of Agriculture and Consumer Services stop-saled 3,700 gallons of regular gasoline of Respondent, Big "S" Oil Company, because the gasoline allegedly contained excessive contamination. The gasoline was subsequently released when Respondent posted a bond in the amount of $1,000.
Respondent requested a formal hearing pursuant to the provisions of Subsection 120.57(1) , Florida Statutes, to contest the forfeiture of the $1,000 bond required by the Department. The matter was forwarded to the Division of Administrative Hearings on December 21, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated January 6, 1982, as amended by Notice dated January 20, 1982, the final hearing was scheduled for February 16, 1982, in Pensacola, Florida.
At the final hearing, Petitioner called J. Haywood Nixon, Emory R. Flanagan and John Whitton as its witnesses and offered Petitioner's Exhibits 1 and 2, each of which was received into evidence.
Respondent was mailed a copy of the first Notice of Hearing on January 6, 1982. An Amended Notice of Hearing was mailed to Respondent on January 20, 1982. This Notice changed the location of the hearing from the U.S. District Court Grand Jury Room to the State Office Building in Pensacola, Florida; however, the time and date remained the same. There is nothing in the file to indicate that Respondent did not receive a copy of both notices.
Petitioner was given the opportunity to file proposed findings of fact and conclusions of law; however, it waived its right to do so.
The issue for determination herein is whether Respondent violated the standards for gasoline offered for sale, and if so, was subject to the confiscation of the product and the posting of a $1,000 bond.
Based upon the entire record, the following facts are determined:
FINDINGS OF FACT
Respondent, Big "S" Oil Company, operates a gasoline station at 4002 North Pace Boulevard, Pensacola, Florida. The station sells gasoline products to the general public.
On or about December 9, 1981, a petroleum inspector of Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of regular gasoline from the Respondent's storage tanks during the course of a routine inspection. This sample was tested in Petitioner's mobile laboratory and was found to have an elevated End Point of 494 degrees Fahrenheit 1/ Department regulations provide that the End Point for leaded gasoline offered for sale in Florida shall not exceed 446 degrees Fahrenheit. A second test conducted in a private laboratory confirmed the initial testing results.
On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on December 9, 1981. (Petitioner's Exhibit 2).
Petitioner determined that prior to the issuance of the notice, approximately 1,900 gallons of contaminated gasoline had been sold to the public.
A bond of $1,000 was paid by Respondent to Petitioner in lieu of confiscation of the remaining leaded or regular gasoline in the storage tanks (Petitioner's Exhibit 1). The hearing was requested to contest the forfeiture of the bond.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Section 525.06, Florida Statutes, provides in part:
All oils enumerated and designated in this chapter that are used or intended to be used for power, illuminating, cooking or heating purposes, when sold under a distinctive poses, when sold under a distinctive name that 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.
Rule 5F-2.01(1)(c)4, Florida Administrative Code, provides that the End Point shall not exceed 446 degrees Fahrenheit for leaded gasoline.
There is no dispute that the confiscated gasoline failed to meet the standard set forth above. Therefore, Petitioner had the requisite authority and duty to confiscate the unsold gasoline.
Although Respondent's actions may not have been intentional, nevertheless it has violated Department standards. Accordingly, Respondent should be required to forfeit its bond, particularly since approximately 1,900 gallons of contaminated fuel were sold to the public.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be required to forfeit the $1,000 bond posted
with Petitioner.
DONE and ENTERED this 24th day of February, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
ENDNOTE
1/ The "End Point" is the maximum boiling point allowed by Department rules for leaded gasoline; the presence of contaminants in the gasoline causes the elevated End Point.
COPIES FURNISHED:
Leslie McLeod, Jr., Esquire Room 513
Mayo Building
Tallahassee, Florida 32301
Mr. Felton S. Walker Big "S" Oil Company Post Office Box 17585
Pensacola, Florida 32522
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 81-3217
)
BIG "S" OIL COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Pensacola, Florida, on March 29, 1982.
APPEARANCES
For Petitioner: Robert A. Chastain, Esquire
Mayo Building, Room 513 Tallahassee, Florida 32301
For Respondent: Felton S. Walker
Post Office Box 17585 Pensacola, Florida 32522
On December 9, 1981, the Department of Agriculture and Consumer Services stop-saled 3,700 gallons of regular gasoline of Respondent, Big "S" Oil Company, because the gasoline allegedly contained excessive contamination. The gasoline was subsequently released when Respondent posted a bond in the amount of $1,000.
Respondent requested a formal hearing pursuant to the provisions of Subsection 120.57(1), Florida Statutes, to contest the forfeiture of the $1,000 bond required by the Department. The matter was forwarded to the Division of Administrative Hearings on December 21, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated January 6, 1982, as amended by Notice dated January 20, 1982, the final hearing was scheduled for February 16, 1982, in Pensacola, Florida.
At the final hearing Respondent failed to appear. A Recommended Order was entered by the undersigned on February 24, 1982. Thereafter, a Motion to Set Aside Recommended Order was filed by Petitioner requesting that the matter be rescheduled for final hearing on the ground Respondent did not receive a copy of the Amended Notice of Hearing, and for that reason, did not appear. A sworn affidavit signed by Respondent accompanied the Motion. The Motion was deemed to be meritorious and a de novo final hearing was rescheduled for March 29, 1982, in Pensacola, Florida.
At the final hearing, Petitioner called J. Hayward Nixon and Emory R. Flanagan as its witnesses and offered Petitioner's Exhibits 1 and 2, each of which was received into evidence. Respondent presented the testimony of its president, Felton S. Walker.
Pursuant to the provisions of Rule 28-5.1055, Florida Administrative Code, the undersigned made a diligent inquiry of Respondent's prospective representative, Felton S. Walker, to determine whether he was qualified to appear in a representative capacity on behalf of Respondent. Such a finding was made and read into the record.
The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their rights to do so.
The issue for determination herein is whether Respondent violated the standards for gasoline offered for sale, and if so, was subject to the confiscation of the product and the posting of a $1,000 bond.
Based upon the entire record, the following facts are determined:
FINDINGS OF FACT
Respondent, Big "S" Oil Company, operates two gasoline retail outlets in the Pensacola, Florida, area, including one at 4002 North Pace Boulevard.
On or about December 9, 1981, a petroleum inspector of Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of regular gasoline from the Respondent's storage tanks during the course of a routine inspection. This sample was tested in Petitioner's mobile laboratory and was found to have an elevated End Point of 494 degrees Fahrenheit. 1/ Department regulations provide that the End Point for leaded gasoline offered for sale in Florida shall not exceed 446 degrees Fahrenheit. A second test conducted by Petitioner's laboratory confirmed the initial testing results. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on December 9, 1981. (Petitioner's Exhibit 2) Petitioner determined that prior to the issuance of the notice, approximately 1,900 gallons of contaminated gasoline had been sold to the public.
A bond of $1,000 was paid by Respondent to Petitioner in lieu of confiscation of the remaining leaded or regular gasoline in the storage tanks Petitioner's Exhibit 1) The hearing was requested to contest the forfeiture of the bond.
Respondent acknowledged that the contamination of fuel occurred. However, it was unintentional and was attributable to a substitute driver failing to clean the fuel drop lines before dropping gasoline into the gasoline storage tank. Respondent has subsequently provided instructions to the driver to prevent a repeat occurrence. It asks that, because of its small size, that either no penalty be assessed or the amount of bond forfeiture be reduced to minimize the detrimental impact on the company.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Section 525.06, Florida Statutes, provides in part:
All oils enumerated and designated in this chapter that are used or
intended to be used for power, illumi- nating, cooking or heating purposes, when sold under a distinctive name that 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.
Rule 5F-2.01(1)(c)4, Florida Administrative Code, provides that the End Point shall not exceed 446 degrees Fahrenheit for leaded gasoline.
There is no dispute that the confiscated gasoline failed to meet the standard set forth above. Therefore, Petitioner had the requisite authority and duty to confiscate the unsold gasoline.
Respondent's actions were not intentional and were the result of an error by a substitute driver who failed to properly clean the fuel drop lines. Respondent has subsequently instituted appropriate procedures to insure that a violation of standards does not occur again. While this is not an excuse for Respondent's actions, it is a matter in mitigation of the forfeiture to be extracted from Respondent.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That Respondent be required to forfeit $500 of the $1,000 bond posted, and the unforfeited $500 be returned to Respondent.
DONE AND ENTERED this 1st day of April 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 1st day of April, 1982.
ENDNOTE
1/ The "End Point" is the maximum boiling point allowed by Department rules for leaded gasoline; the presence of contaminants in the gasoline causes the elevated End Point.
COPIES FURNISHED:
Robert A. Chastain, Esquire Department of Agriculture and Consumer Services
Room 513, Mayo Building Tallahassee, Florida 32301
Mr. Felton S. Walker Big "S" Oil Company Post Office Box 17585
Pensacola, Florida 32522
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Docket for Case No: 81-003217
Orders for Case No: 81-003217
