STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2132

)

EASTERN OIL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 9 December 1982 at Tampa, Florida.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Department of Agriculture and Consumer Services

513 Mayo Building Tallahassee, Florida 32301

For Respondent: Don Davies, Coordinator

Eastern Oil Company

205 South Hoover Street Tampa, Florida 33609

By letter dated July 27, 1982, Eastern Oil Company, Respondent, requested a hearing regarding the disposition of four $1,000 bonds posted to release gasoline from Stop Sale Notices at four stations in Jacksonville, Florida.

At the hearing Petitioner called one witness, Respondent called one witness, and one composite exhibit was admitted into evidence. There is no dispute regarding the facts here involved.

FINDINGS OF FACT

1. On June 8, 1982, a super ethanol enriched regular gas sample taken from Car-Go station No. 9840 owned by Respondent was subsequently tested and found to be below the 50 percent distillation temperature specified by the regulations. A Stop Sale Notice was issued on June 11, 1982, and on June 14, 1982, Respondent posted a $1,000 bond and the gasoline was released to Respondent to be upgraded and again offered for sale.

   
   

2. On June 9, 1982, a similar sample taken from Eastern station No. 2108 was tested, with similar results. Again a Stop Sale Notice and bond followed.

3. On June 11, 1982, similar samples taken from Eastern station No. 2104 and San Ann No. 171981 were tested, with similar results. As a result of these samples showing nonconformity with prescribed standards, Respondent posted a

   $1,000 bond for each station. Accordingly, a total of $4,000 was posted for the four stations so the gasoline could be returned to the plant for upgrading to meet requirements.

   
   

4. Respondent does not contest any of the above facts and contends only that it was ignorant of the requirements and did not intend to violate the law.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Section 525.06, Florida Statutes, provides that oil and gasoline intended to be used for power, sold under a distinctive name and which are below the standards fixed by the Department of Agriculture are illegal and subject to confiscation. In lieu of confiscation, the Department is authorized to accept a bond not to exceed $1,000. Rule 5F-2.01(1)(c) establishes a distillation range in which the 50 percent evaporated temperature shall not be less than 170 degrees Fahrenheit (F) and shall not exceed 240 degrees F. It is this regulation which was violated by the super ethanol enriched regular gasoline being sold by Respondent.

   
   

7. Respondent is in the business of selling gasoline products and is required to know the law and the standards prescribed for various grades of gasoline products. Accordingly, its plea of ignorance of the law is not given much weight.

   
   

8. On the other hand, all these violations were discovered in a short period (between 8 and 11 June) and Respondent fully cooperated with Petitioner in getting these nonconforming products off the market. Under these circumstances a reduction in the bond appears warranted. It is therefore

RECOMMENDED that each of the four $1,000 bonds be reduced to $500 and forfeited, and the remaining $2,000 of the bond money posted be returned to Respondent.

ENTERED this 4th day of January, 1983, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 323901

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1983.

COPIES FURNISHED:

Robert A. Chastain, Esquire Doyle Conner, Commissioner General Counsel of Agriculture

Department of Agriculture and The Capitol

Consumer Services Tallahassee, Florida 32301

513 Mayo Building Tallahassee, Florida 32301

Don Davies, Coordinator Eastern Oil Company

205 South Hoover Street Tampa, Florida 33609

Docket for Case No: 82-002132

Orders for Case No: 82-002132