STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2131

)

DELTA OIL COMPANY, INC., )

)

Respondent. )

)

RECOMMENDATION

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 29, 1982. Respondent was unrepresented at the hearing, but Mr. Donald P. Robinson, respondent's treasurer, was oresent and was, without objection, called as a hearing officer's witness. Petitioner was represented by counsel:

Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32301

In order to secure the release of certain gasohol, respondent posted a thousand dollar ($1,000.00) bond and petitioner withdrew its stop sale notice. The issues are whether the gasohol was nonstandard when impounded and what disposition to make of the bond respondent posted.

FINDINGS OF FACT

1. On July 6, 1982, Jimmy Haywood Nixon, an employee off petitioner, took a sample of gasohol offered for sale as "super unleaded ethanol enriched" (by pumping it through a nozzle) at the 7-11 food store, 111 West Burgess Road, Pensacola. He delivered the sample to Pat Flanagan, a chemist with petitioner's mobile lab No. 2. According to Mr. Flanagan, there was a third again too much alcohol in the mixture. He was of the opinion that the high alcohol content accounted for the low (1590F.) "50 percent evaporated temperature." Being advised by Mr. Flanagan that the gasohol was nonstandard, Mr. Nixon returned on July 7, 1982, to lock the pump.

   
   

2. Later that day, after posting bond, respondent's Mr. Cooper tried to figure out how much unleaded gasoline to add to the 4,589 gallons in the 7-11 tank in order to reduce the fraction of alcohol to one-tenth. To this end, samples taken, not from the nozzle, but from deep in the tank were analyzed.

   
   

3. Mr. Flanagan performed the same procedure on the tank sample as he had run on the nozzle sample. He added dyed ethylene glycol to the sample, shook the mixture and waited for it to stratify. Then he measured the amount by which the dyed layer had grown. This increment was assumed to be pure alcohol. The tank

   sample test indicated that the mixture was 12.3 percent alcohol, a full point less than the nozzle sample's ethanol component. The difference is presumably attributable to slight stratification in the tank.

   
   

4. Mr. Cooper also performed a test. This test employed the same methodology as Mr. Flanagan's test, but the reagent was distilled water rather than ethylene glycol, and the result was 9.8 or 9.9 percent alcohol. It may be that additives other than ethanol dissolved in the ethylene glycol.

   
   

5. On July 9, 1982, Mr. Cooper arrived in a compartmented truck with an empty chamber for blending, 100 gallons of alcohol, and 1500 gallons of unleaded gasoline. He added 1300 gallons of unleaded gasoline to the tank and blended the mixture. This resulted in 5889 gallons that tested at 7.5 percent alcohol, so all 100 gallons of alcohol were added. The resulting mixture tested at 9.167 percent alcohol.

   
   

   CONCLUSIONS OF LAW

   
   

6. Although not specifically named in Chapter 525, Florida Statutes (1981), gasohol falls within the category of "gasoline, naphtha, kerosene, benzine, or other like products of petroleum under whatever name designated, used for illuminating, heating, cooling or power purposes," Section 525.01, Florida Statutes (1981), and is therefore subject to confiscation if it is shown to "fall below the standard fixed by the Department of Agriculture and Consumer Services." Section 525.06, Florida Statutes (1981). Petitioner's rules do not fix standards specifically for gasohol however.

   
   

7. In the present case, petitioner seeks not confiscation but retention of the thousand dollar bond posted by respondent, proceeding under Section 525.06, Florida Statutes (1981) which provides:

   
   

   . . . 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 customer, the department is authorized to make an assessment equal to the retail value of the produce sold, not to exceed $1,000.

   
   

   Petitioner has the burden of proof whether it proposes to confiscate, make an assessment or retain money posted as a bond. Such proceedings are closely analogous to disciplinary proceedings by state agencies against licensees.

   Although there is no requirement to prove scienter or intent, confiscation of private property or levying an administrative fine makes these cases, even more than license revocation cases, "'penal' in nature." State ex rel. Vining v.

   Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980)

   
   

8. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent's gasohol was nonstandard as alleged in the stop sale notice. See, Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1974); Reid

   v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). The alleged deviation from standards must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence.

9. The sale of gasohol is specifically authorized by statute: Alcohol-blended fuels which contain

   90 percent unleaded gasoline and 10 percent

   ethyl alcohol of a minimum of 198

   proof and a maximum 50 parts per million of acetic acid, commonly know as "gasohol," may be sold at retail service stations for use in motor vehicles, as long as the gasoline component complies with current state specifications, until the American Society for Testing and Materials approves specifications for gasohol.

   
   

   Section 526.06, Florida Statutes (1981), (emphasis supplied).

   
   

10. The evidence in the present case as to the proportion of alcohol was confused and contradictory. The results of the "corrective" mixing suggest that the mixture may well have been 10 percent alcohol to begin with. The only evidence as to evaporation temperatures pertained to the mix as a whole and not to the gasoline component separately. In short, petitioner has not carried its burden of proof.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That petitioner return the thousand dollar bond posted by respondent.

DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 December, 1982.

COPIES FURNISHED:

Glenn L. Boom, President Delta Oil Company, Inc. Post Office Box 90

Bay Minette, Alabama 36507

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

Mayo Building

Tallahassee, Florida 32301

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

Docket for Case No: 82-002131

Orders for Case No: 82-002131