STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-342

) ONE STOP OIL CO. (STATION #10), )

)

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 Room 415, Richard P. Daniel Building, 111 Coast Line Drive East, Jacksonville, Florida, on March 10, 1982.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

General Counsel Department of Agriculture and Consumer Services

The Mayo Building Tallahassee, Florida 32301

For Respondent: Tom Kloski, Vice-President

One Stop Oil Co. Post Office Box 8248

Jacksonville, Florida 32239 1/ ISSUE

The issues here presented concern the alleged violation of Rule Subsection 5F-2.O1(2)(b), Florida Administrative Code, related to the "flash point" for kerosene and the possible penalties to be imposed for such violations, in keeping with Section 525.06, Florida Statutes (1980), and Rule Subsection

5F-2.02(2)(c), Florida Administrative Code.

FINDINGS OF FACT

1. This case was presented for hearing based upon the request for formal Subsection 120.57(1), Florida Statutes, hearing, made by Arnold S. Rogers, President, One Stop Oil Company. The matters to be considered are as generally indicated in the Issues statement to this Recommended Order. The hearing was conducted on March 10, 1982.

2. 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).

   
   

3. The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 1238 Broward Road, Jacksonville, Florida.

   
   

4. On November 25, 1981, a sample of the petroleum product kerosene was taken at the aforementioned location operated by the Respondent, which is known as Station No. 10. A subsequent analysis on December 3, 1981, revealed a "flash point" of 78F. This reading was below the 100F minimum "flash point" as set forth in Rule Subsection 5F-2.01(2)(b), Florida Administrative Code.

   
   

5. The results of the analysis were made known to the Respondent on December 3, 1981. Prior to that date, the Respondent was unaware of this reading below standard related to the "flash point." (A second kerosene sample was taken on December 3, 1981. That sample continued to reveal a "flash point" below 100F.)

   
   

6. In view of the results of the November 25, 1981, test related to the kerosene at the Respondent's station, a "Stop Sale Notice" was issued to the Respondent. This was issued in keeping with Section 525.06, Florida Statutes (1980). In lieu of confiscation, a bond was posted in an approximate amount,

   $4,900.00. This bond amount had been prescribed by an employee for the Petitioner by mistake and subsequent to that time, all of the bond amount, with the exception of $1,000.00 was refunded to the Respondent. It is the $1,000.00 amount that remains in dispute at this time.

   
   

7. In excess of 1,800 gallons of the contaminated kerosene had been sold prior to the discovery of this problem.

   
   

8. The kerosene in the sample tank in question had been contaminated with gasoline and this combination lowered the "flash point." Kerosene with a low "flash point" is a hazardous substance, particularly when burned in kerosene stoves.

   
   

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

   
   

10. Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, makes it a violation to offer for sale kerosene which has a "flash point" of less than 100F.

    
    

11. The Respondent offered and in fact did sell kerosene whose "flash point" was established to be 780F, and in the face of such action, violated the aforementioned Rule.

    
    

12. This violation would subject the Respondent to the confiscation of the kerosene 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, the Petitioner could accept a bond, not to exceed

    $1,000.00 which could be converted into a fine, in the face of a finding of a violation of the petroleum standards law. Respondent posted the $1,000.00 bond and that bond amount can be taken as a fine levied against the Respondent for the violation as found.

13. The Petitioner being found in violation, the only matter to be determined is the proper amount of fine to be imposed.

    
    

14. The Petitioner is of the persuasion that the full fine should be levied in view of the clear violation; the hazard posed by offering for sale and selling kerosene with a substandard "flash point," and the cost of prosecution to include appearances by consul and witnesses in Jacksonville, Florida, when counsel and those officials were required to travel from Tallahassee, Florida.

    
    

15. Respondent, through its representative, detailed the steps that were taken to ensure against a violation of the "flash point" standards related to kerosene. The rendition of facts establishes that the tank in which the subject kerosene had been placed had immediately prior to that placement, contained unleaded premium gasoline. That gasoline had been pumped out; the tank tilted to allow the residue to collect in one confined area and the tank flushed out by water. The delivery tanker, which belonged to the Respondent and which delivered the kerosene, had been used to transport gasoline before that delivery; however, that tanker had been subjected to a purging to remove the gasoline.

    
    

16. Respondent was unsure about the condition of the kerosene which had been sold to the Respondent by an outside source and transported by the Respondent's tanker, as this relates to a "flash point" violation prior to delivery.

    
    

17. Notwithstanding the efforts by the Respondent to protect against such a violation of "flash point," Respondent concedes that as much as one quarter inch of gasoline residue could have remained in the storage tank at the time kerosene was offered for sale and sold.

    
    

18. While Respondent recognizes that the violation established herein is one which does not require proof of "intent" in order to be found responsible for such violation, Respondent, nonetheless, asks that the fine be less than the full $1,000.00, particularly so in the face of the depressed market conditions related to its business.

    
    

19. Finally, Respondent, in answering Petitioner's argument related to the cost of prosecution, states that it would have attended a hearing in Tallahassee, Florida, if necessary.

Based upon a full consideration of the facts, conclusions of law and matters in aggravation and mitigation, it is

RECOMMENDED:

That a final order be entered finding the Respondent in violation of Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, and subjecting Respondent to the penalties set forth in Section 525.06, Florida Statutes (1980), and imposing a fine of $750.00, with $250.00 of the bond amount to be refunded to the Respondent.

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

CHARLES C. ADAMS

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 19th March, 1982.

ENDNOTE

1/ The appearance by the Respondent was for purpose of presentation of mitigating circumstances, in that no dispute immaterial facts was contended. Notwithstanding the lack of disputed facts, the parties stipulated and agreed to consideration of this matter through the process of a Subsection 120.57(1), Florida Statutes, hearing.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture and Consumer Services

The Mayo Building Tallahassee, Florida 32301

Tom Kloski, Vice President One Stop Oil Co.

Post Office Box 8248 Jacksonville, Florida 32239

Docket for Case No: 82-000342

Orders for Case No: 82-000342