STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-623

) WIDMAIER OIL COMPANY, EXXON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter one July 13, 1982, in Daytona Beach, Florida. The following appearances were entered: The Respondent's president, C. W. Widmaier, appeared on behalf of the Respondent, Widmaier Oil Company; and Robert A. Chastain, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Agriculture and Consumer Services.

The Department of Agriculture and Consumer Services issued a "Stop Sale" order with respect to certain gasoline being sold by Widmaier Oil Company, which the Department asserted had a higher lead content than is permissible under the Department's rules. Widmaier Oil Company posted a bond in the amount of one thousand dollars ($1,000) with the Department, so that gasoline could be sold, and requested a formal administrative hearing. The hearing was scheduled to be conducted as set out above by notice dated March 31, 1982. At the hearing, the Department called the following witnesses: Thomas L. Burton, a product specialist employed by the Department; Robert S. Dennis, a chemist employed by the Department; and Ben W. Bowen, the Laboratory Chief of the Department's Bureau of Petroleum Inspection. The Respondent called the following witnesses:

1. W. Widmaier; and John S. Roth, Samuel E. Thompson, and Andy Dutcher, all of whom are drivers employed by the Respondent. Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 15 were offered into evidence and received. The parties have not submitted post-hearing memoranda.

   
   

   The issues in this proceeding are whether Widmaier Oil Company was offering gasoline for sale to the consuming public as "unleaded gasoline," which did not comport with the lead content requirements set out in the rules of the Department of Agriculture and Consumer Services; and, if so, whether an assessment should be imposed upon Widmaier Oil Company.

   
   

   FINDINGS OF FACT

   
   

   1. Frank Gish operates Gish's Exxon service station, which is located at

      400 Ridgewood Avenue, Holly Hill, Florida. Gish's Exxon service station purchases all of its gasoline from the Respondent, Widmaier Oil Company.

      
      

   2. On or about February 17, 1982, one of the Department's employees performed a routine inspection at Gish's Exxon service station. Samples were

      taken from each of the station's gasoline pumps and forwarded to a mobile laboratory. One of the samples taken was from the pump labeled "Exxon Unleaded." An examination of this sample was performed on the same date. The lead content of the sample was found to be .09 grams per gallon. After this analysis was performed, the remainder of the sample was forwarded to the Department's laboratory in Tallahassee for more detailed examination. Personnel at the Department's laboratory in Tallahassee performed a precise X-ray examination of the sample. American Society for Testing Materials standards were applied in conducting the examination. The lead content of the sample was found to be .098 grams per gallon.

      
      

   3. The Department's rules require that gasoline sold as unleaded gasoline may not contain more than .05 grams of lead per gallon Rule 5F-2.01(1)(j), Florida Administrative Code. The Department's testing techniques have a "reproducibility factor" or error factor of up to .034 grams per gallon. Thus, the Department does not take action based upon tests that it runs unless the tests reveal a lead content of more than .084 grams per gallon. The samples taken from Gish's Exxon service station exceeded this amount, and a "Stop Sale" order was issued. Widmaier Oil Company posted a bond in the amount of one thousand dollars ($1,000) with the Department, so that the gasoline could be sold as "leaded gasoline." Widmaier Oil Company has agreed to accept responsibility for the selling of any illegal product as might be determined in this proceeding.

      
      

   4. No evidence was offered at the hearing from which it could be determined how the unleaded gasoline being sold at Gish's Exxon service station came to have an excessive lead content. Respondent contended that the gasoline may have been contaminated by the Petitioner's agents wrongly placing samples of gasoline that had been taken from a leaded pump into the unleaded tank. This contention is not supported by any evidence, and it appears that the samples taken by the Respondent's agents were not sufficient in volume to have raised the lead content in the unleaded tank to a level that would have violated the Department's standards.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   6. The Department of Agriculture and Consumer Services has the responsibility of setting and enforcing standards for the sale of petroleum products within the State of Florida. Section 525.01, Florida Statutes. Products that are offered for sale below the standards set by the Department are subject to confiscation and sale; or, alternatively, a bond can be posted allowing sale of the product, properly identified, pending legal disposition of the matter. Section 526.06, Florida Statutes. The Department's rules limit the lead content of gasoline products sold as unleaded to .05 grams of lead per gallon. Rule 5F-2.01(1)(j), Florida Administrative Code.

      
      

   7. Gasoline being sold at Gish's Exxon service station as unleaded gasoline contained a lead content which exceeded the Department's standards. The illegal product was being offered for sale to retail customers. The gasoline was therefore appropriately subject to a "Stop Sale" order and to

confiscation. Section 525.06, Florida Statutes, authorizes confiscation of such illegal products and provides further:

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.

The value of the illegal product being offered for sale by Respondent exceeded one thousand dollars ($1,000). Although it does not appear that Respondent had any fraudulent intent in selling the illegal product, it does appear that the gasoline being offered for sale as "unleaded" contained a lead content in excess of the standards set out in the Department's rules. The responsibility for assuring that the product being offered for sale complies with the Department's standards lies with the Respondent. It is therefore appropriate that the Department make an assessment against the Respondent in the amount of one thousand dollars ($1,000), the amount that the Respondent posted with the Department, so that the mislabeled product could be properly sold.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Department of Agriculture and Consumer Services enter a final order imposing an assessment against Widmaier Oil Company in the amount of one thousand dollars ($1,000). The assessment can be satisfied from the one thousand dollars ($1,000) that was posted by the Respondent in response to the Department's "Stop Sale" order.

RECOMMENDED this 29th day of July, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER, 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 29th day of July, 1982.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture

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

Mr. C. W. Widmaier President

Widmaier Oil Company 644 Carswell Avenue

Holly Hill, Florida 32017

The Honorable Doyle Conner Commissioner of Agriculture State of Florida

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000623

Orders for Case No: 82-000623