STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1931

)

UNITED PETROLEUM,INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Brooksville, Florida on September 8, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

For Respondent: T.D. McRae, President

United Petroleum, Inc. 680 South May Avenue

Brooksville, Florida 33512

This case involves two stop sale notices issued by Petitioner to Respondent at two of its service stations located in Tampa and Brooksville, Florida in June, 1982, as a result of which Respondent posted cash bonds in the amount of

$625 and $1,000 in order to gain release of the alleged illegal products in lieu of confiscation and sale.

Mr. T.D. McRae, President of Respondent United Petroleum, Inc. and its authorized representative for the purposes of this proceeding, was advised of the rights and procedures involved in administrative proceedings under Chapter 120, Florida Statutes.

Petitioner presented the testimony of two witnesses and submitted two exhibits in evidence. Mr. McRae testified in behalf of Respondent corporation.

FINDINGS OF FACT

1. On June 3, 1982, William Cate, an inspector for Petitioner Department of Agriculture and Consumer Services, obtained a sample of the product identified as 500 Ethohol from a pump at the United 500 station owned by Respondent in Brooksville, Florida. The sample was shipped to Petitioner's

   laboratory in Tallahassee where it was analyzed under the supervision of John Whitton, Chief Bureau of Petroleum Inspection, using standard methods, and found to be in violation of Petitioner's Rule 5F-2.01(c)2 in that the 50 percent evaporated temperature of the product was 1580F which did not comply with the rule's requirement that such temperature not be less than 1700F. On June 11, 1982, a stop sale notice was issued against Respondent directing it to immediately stop the sale of the product listed below pending further instructions from Petitioner. Inspector Cate sealed the pump in question, and Respondent elected to post a $1,000 cash bond in order that he could return the product for upgrading in lieu of confiscation and sale. The stop sale notice was directed to 2475 gallons of the product which had a value of over $1,000. "Ethohol" is a blend of regular leaded gasoline which contains a percentage of alcohol, and sometimes is known as "gasohol." (Testimony of Cate, Whitton, Petitioner's Composite Exhibit 1)

   
   

2. On June 14, 1982, Curtis E. Hardee, an inspector for Petitioner, took samples of 500 Ethohol from a pump located at Respondent's United 500 station at 6815 Sheldon Road, Tampa, Florida. The samples were sealed and shipped to Petitioner's laboratory in Tallahassee where they were analyzed under the supervision of John Whitton, Chief Bureau of Petroleum Inspection, and found to be in violation of Rule 5F-2.01(-1)(c)2, Florida Administrative Code, in that the 50 percent evaporated temperature of the product was l520F, and therefore violated the rule's requirement that such temperature not be less than l700F. A stop sale notice was issued against sale of the product on June 17, 1982, and Respondent elected to post a cash bond in lieu of confiscation or sale of 3,449 gallons of the product. The amount of the bond was $625 which represented 481 gallons of the product that had been sold since the last time a load of gas had been delivered to the station. Under the provisions of the release notice, Respondent agreed to pump the remaining product out of its storage tank and return it to their bulk plant for upgrading. (Testimony of Hardee, Whitton, Petitioner's Composite Exhibit 2)

   
   

3. Although Respondent's representative did not dispute the foregoing facts, he maintained that forfeiture of the entire amount of the cash bonds would be excessive. (Testimony of McRae)

   
   

   CONCLUSIONS OF LAW

   
   

4. Pursuant to Section 525.06, Florida Statutes, gasoline products offered for sale that fall below the standards 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. The statute provides further as follows:

   
   

   . . . 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

   $1,000.00. 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 $1,000.00.

5. Petitioner's Rule 5F-2.01(1)(c)2, F.A.C. provides that the 50 percent evaporated temperature of gasoline offered for sale shall not be less than l700F (770C) and shall not exceed 2400F (1160C). Analysis of the products taken from Petitioner's service stations showed that the samples of the gasoline in question were in both instances less than 1700F, therefore violating the rule.

   
   

6. The evidence established that Respondent had sold 481 gallons of the product at the Tampa location in the value of $625 for which bond was posted. As to the product at the Brooksville location, a $1,000 bond was posted, but no evidence was presented as to the amount of the illegal product which had been sold.

   
   

7. In view of the foregoing, it is concluded that Petitioner is justified in retaining the $625 cash bond relative to the product sold at the Brooksville station, and the $1,000 bond which was posted to retain the product subject to confiscation at the Tampa location.

RECOMMENDATION

It is recommended that a Final Order be issued assessing Respondent the sum of $625 to be effected by forfeiture of the bond posted in the same amount pursuant to stop sale notice issued on June 17, 1982 at Tampa, Florida, and that the $1,000 bond posted by Respondent to gain release of the gasoline product which was the subject of the stop sale notice of June 11, 1902 at Brooksville, Florida also be forfeited.

DONE and ENTERED this 24th day of September, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1982.

COPIES FURNISHED:

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

Mayo Building

Tallahassee, Florida 32301

T.D. McRae, President United Petroleum, Inc. 680 South May Avenue

Brooksville, Florida 33512

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-001931

Orders for Case No: 82-001931