vs. ) CASE NO. 82-3153
Respondent. )
This hearing was held pursuant to notice in the Conference Room, Second Floor, City Hall, 228 Massachusetts Street, Lakeland, Florida, at 1:00 P.M. on February 24, 1983, before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.
For Petitioner: Robert A. Chastain, Esquire
For Respondent: Richard C. May, Esquire
By Stop Sale Notice dated October 6, 1982, and subsequent Release Notice or Agreement dated October 14, 1982, Respondent was notified of the requirement for a $1,000 bond relating to a quantity of mislabeled, contaminated, unleaded gasoline offered for sale at a service station in Polk County, Florida, allegedly furnished by the Respondent. By letter dated October 20, 1982, Respondent contested the imposition for the bond and requested a hearing to dispute the forfeiture of the bond.
Petitioner presented the testimony of Willis Aldridge and Ben Bowen, and introduced Petitioner's Composite Exhibit 1. Respondent presented the testimony of Robert W. Taylor and Mr. Charles Mayo, Jr.; and introduced Respondent's Exhibits A through D.
Early on the morning of September 3, 1982, Mr. Robert W. Taylor, a driver for Fleetwing Petroleum Company, loaded his truck at the Marathon Oil Company Refinery terminal in Tampa, Florida, for the Triangle Refineries, Inc., with 2,001 gallons of super-unleaded gasoline, 2,000 gallons of unleaded regular gasoline, and 3,501 gallons of regular leaded gasoline. The super-unleaded was loaded into Compartment 1 of four compartments on the trailer, which holds a maximum of 2,500 gallons.
On the previous day, this trailer had been used by another driver, Floyd Mills; and before loading the trailer at the terminal, he, Taylor, personally flushed out the tanks to insure no contamination.
After completing the loading procedure, Mr. Taylor drove directly to the Hardee's station at 24203 Highway 60 E, Lake Wales, Florida, where it was loaded into the station's tanks. The delivery consisted of 3,501 gallons of regular gas, 2,000 gallons of unleaded gas, and 2,001 gallons of super-unleaded gas, as reflected on the delivery log for that date. This was somewhat unusual, since it was the first time Mr. Taylor had ever taken super-unleaded to that station. The receipt for delivery, executed by Walter Winslett, Jr., on September 3, 1982, shows that the quantities and qualities described above were received.
During a routine inspection of the Hardee station on September 29, 1982, Mr. Willis Aldridge, an inspector with the Florida Department of Agriculture, took samples of all the gas at the station, including the regular, the unleaded, and the Super-unleaded. These samples, taken in the normal manner, were sealed inside a case with a lead wire seal, identified, and sent off to the lab at Tallahassee.
Several days later, on October 5, 1982, Mr. Aldridge received a phone call from the Department of Agriculture laboratory in Tallahassee advising him that the super-unleaded product taken from the Hardee station exceeded the lead tolerance and that he should immediately stop its sale. Thereafter, the following day, he went back to the Hardee station, where talking with the manager, Mr. Winslett, he told him what the problem was, issued a stop sale notice for that grade gas, and sealed the pump dispensing it. Mr. Winslett stated this one load of super-unleaded was the only one he had ever received.
The Stop Sale Notice identifies, inter alia, the product, the brand name, the pump number, and the amount still in the tank. This last figure is determined by sticking a gauging stick into the tank. Since this was the first time the station had carried super-unleaded, 2,001 gallons had been delivered, and 998 gallons remained, that meant that slightly over 1,000 gallons had been sold of that product.
At this point, Mr. Aldridge advised the station operator he could either give up what was in the ground or pay a penalty on the amount sold to a maximum of $1,000. Since this grade gasoline was selling at that time for $1.32 a gallon, the value of the gasoline still in the ground was greater than the penalty.
When the Stop Sale Notice was issued on October 6, 1982, Fleetwing officials requested a few days to consider their options, and on October 14, 1982, advised Mr. Aldridge that they elected to post bond in the penalty amount ($1,000) and would meet him at the station the next morning. When he arrived,
Mr. Aldridge met with Mr. C. W. May, Jr., a representative of Fleetwing Petroleum, who posted the required bond, and the remaining 998 gallons of super- unleaded were released.
The product in question was tested at the Florida Department of Agriculture Lab Complex in Tallahassee under the supervision of Mr. Ben W. Bowen, of the Lab Testing Section. The tests seen on the super-unleaded sample, utilizing the American Society of Testing and Materials standards adopted by the State of Florida, revealed this particular sample contained 0.15 gram of lead per gallon. Two tests were utilized. An initial field test was used to scrutinize the samples as they came in. If any sample failed this test, a second test utilizing the X-ray florescence method is used. Since the maximum allowed is 0.05 gram per gallon, this sample had three times the lead limit and was therefore subject to confiscation.
The effects of using excessively leaded gasoline in cars designed to burn unleaded gas are: (1) the calalytic converter will be ruined, and (2) damage to the engine with continued use. Replacement of a catalytic converter could run to several hundred dollars.
The contaminated gasoline was the property of, and offered for sale by, the Respondent, Fleetwing Corporation. The pumps used for dispensing were identified as to type of gasoline and bore the Fleetwing logo.
CONCLUSIONS OF LAW
The provisions of Chapter 525, Florida Statutes (1981), authorize the Department of Agriculture and Consumer Services to test petroleum products sold within the State; and Section 525.14, Florida Statutes (1981), authorizes the Department to adopt rules and regulations fixing standards for such products. Section 525.06, Florida Statutes (1981), authorizes the confiscation of products which fall below the standards set by the Department and the posting of a bond, in the maximum amount of $1,000, in lieu of confiscation.
The tests performed by the Department showed that samples of the super-unleaded gasoline, which, under Rule 5F-2.O1(1)(j), Table 1, Florida Administrative Code, may not contain more than 0.05 gram of lead per gallon, clearly in violation of the rule. In a letter to the Hearing Officer dated March 3, 1983, counsel for Respondent admits the sample in question was illegal in lead content. Therefore, Petitioner had the requisite authority and duty to confiscate the unsold gasoline. In lieu of this, Respondent posted the bond in
question and was therefore allowed to sell the gasoline remaining in the tank as regular gasoline.
In his aforementioned letter of March 3, 1983, submitted as argument in writing with the permission of the Hearing Officer, counsel for Respondent argues that the method of calculating the amount of fuel remaining in the tank on which the bond was posted was unreliable and that the evidence to that effect given at the hearing was purely hearsay. I do not concur that the Department of Agriculture inspector's, Mr. Aldridge's, testimony as to the method of his calculation was necessarily hearsay. Even if some factors were, these hearsay factors go to explain or supplement the nonhearsay portion of his testimony, and not to, by themselves, support any finding of fact. Therefore, it is clear that the amount of bond was legally and properly determined.
Respondent also alleges that Petitioner offered no admissible evidence that the load of super-unleaded fuel delivered by Fleetwing on September 3,
1982, was the last load delivered prior to the sample. The Petitioner did establish, however, that a" load `of "`super-unleaded" was delivered to the station by a Fleetwing driver from a Fleetwing truck; put into a tank, the pump for which was labeled "Fleetwing"; and dispensed as Fleetwing gasoline.
Further, it was Fleetwing Corporation, the Respondent, which posted the bond in question, thereby tacitly admitting responsibility for the gasoline, not the station owner. No issue was raised at the hearing as to ownership of the gasoline, and it is now not timely to raise in argument issues and evidentiary questions not raised at the hearing. That the Fleetwing Corporation has been in business for 26 years without a citation for improper labeling is impressive and mitigative, but not persuasive. Therefore, the evidence establishes without much question that the responsibility for the illegal product rests with the Respondent.
As was stated, the long and unblemished record of Respondent as a petroleum products supplier is impressive and constitutes substantial mitigation. It also indicates that while the illegal activity took place, it was not intentional, and mitigation of the forfeiture would be appropriate in this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That Respondent be required to forfeit $500 of the $1,000 bond posted and the unforfeited $500 be returned to the Respondent.
RECOMMENDED this 25th day of March, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1983.
Robert A. Chastain, Esquire General Counsel
Richard C. May, Esquire 4110 South Florida Avenue Suite B
