STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1791

)

LEON-U-PUMP-IT, INC., )

)

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 the offices of the Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida, commencing at 9:30 A.M., on November 3, 1982.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Department of Agriculture and Consumer Services

The Mayo Building Tallahassee, Florida 32301

For Respondent: F.J. Black

1555 Cristobal Drive

Tallahassee, Florida 32303 ISSUE

The issue presented here concerns the accusation by Petitioner that Respondent, in the operation of its business, had available for sale at retail a petroleum product, namely Top Grade Super Regular Ethanol Enriched gasoline, which did not comply with the evaporation requirements set forth in Rule 5F- 2.01(1)(c)2., Florida Administrative Code. In particular, it is alleged that the fuel violated the 1700F minimum temperature, in that testing revealed that the temperature of the fuel was at 1520F.

FINDINGS OF FACT

1. On June 14, 1982, James Hall, an employee of the Petitioner, made a routine inspection of the Respondent's gasoline service station located at 545 East Tennessee Street, Tallahassee, Leon County, Florida. This service station is in the business of selling gasoline to the motoring public.

2. One of the products being sold at the time of inspection was Top Grade Super Regular Ethanol Enriched gasoline, which is a leaded fuel with components of gasoline and an enriching agent, alcohol. (The exact money amount of product that had been dispensed prior to the check was not established in the hearing, but by Respondent's position at the hearing, it was at least $1,000.00.) This fuel was sampled by Hall and returned for laboratory testing to be performed by the agency.

   
   

3. That laboratory testing established that the 50 percent evaporated temperature for the fuel was less than 1700F. The reading was l540F, and a subsequent reexamination of the fuel sample indicated that the 50 percent evaporated temperature reading was I520F.

   
   

4. Hall returned to Respondent's service station on June 15, 1982, and advised the proprietor of the problem with the evaporation temperature. At this point in time, 3,325 gallons of fuel remained in the tank from which the sample was taken. A Stop Sale Notice was placed against Respondent, and in lieu of confiscation of the fuel, which value was in excess of $1,000.00, Respondent was allowed to post a $1,000.00 bond and the fuel `gas released to be sold as regular leaded gasoline. Regular leaded gasoline is a product of lesser quality than Top Grade Super Regular Ethanol Enriched.

   
   

5. Respondent, on the part of its officials, asked for a formal Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on November 3, 1982, as described.

   
   

6. The adverse effects of a violation of the 50 percent evaporated temperature, include drivability of an automobile, in that there is a delay or hesitation during the operation of the automobile; stalling, i.e., the engine shutting down, and problems with "vapor lock" in high ambient temperature situations. "Vapor lock" is an undesirable condition related to engine performance in an automobile.

   
   

7. Although Respondent's employees had mixed gasoline and alcohol in its tank on the premises to achieve the blend Top Grade Super Regular Ethanol Enriched in its past operations, the fuel that was sampled in this case had been purchased from a jobber/wholesaler, already blended. Moreover, there was no indication that Respondent had deliberately attempted to sell substandard fuel to the consuming public.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Chapters 120 and 525, Florida Statutes.

   
   

9. Section 525.06, Florida Statutes, states that oils, and this would include Respondent's Top Grade Super Regular Ethanol Enriched gasoline, which fall below the standards fixed by Petitioner are illegal and can be confiscated and sold by Petitioner, if they are used or intended to be used for power, and are sold under a distinctive name. The fuel in question here was used and was intended to he used for power and was sold under distinctive name and fell below the standard set forth in Rule 5F-2.01(1)(c)2., Florida Administrative Code, in that the fuel fell below the 50 percent evaporated temperature minimum of 1700F. Specifically, the 50 percent evaporated temperature was in the range of 1520F to 1540F. Consequently, the fuel could have been confiscated and sold by order of the Department. In lieu of that confiscation, a refundable bond of $1,000.00 was

   posted, pending the outcome of this case. The product subject to confiscation was worth more than $1,000.00. Respondent, in the person of its representative, having accepted that fact that the suspect gasoline had been sold at retail in an amount equal to at least $1,000.00, the Department is entitled to make an assessment of a $1,000.00 fine against Respondent.

   
   

10. Based upon a full consideration of the facts in this matter, and with emphasis on the fact that Respondent has not been shown to have engaged in an intentional course of conduct which violates regulatory precepts, it is

RECOMMENDED:

That a Final Order be entered which assesses, by way of fine, an amount of

$500.00 against Respondent for the violation shown.

DONE and ENTERED this 12th day of November, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 12th day of November, 1982.

COPIES FURNISHED:

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

The Mayo Building Tallahassee, Florida 32301

F.J. Black

1555 Cristobal Drive

Tallahassee, Florida 32303

The Honorable Doyle Conner Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32301

Docket for Case No: 82-001791

Orders for Case No: 82-001791