STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1272

)

PETRO-WASH, INC., d/b/a )

PAT-N-POLISH CAR WASH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Avers, held a public hearing in the above- styled case on June 27, 1983, at Clearwater, Florida.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Department of Agriculture and Consumer Services

Room 518, Mayo Building Tallahassee, Florida 32301

For Respondent: Bruce Mitchell appeared on behalf of

Respondent; however, he was found not qualified to represent Respondent.

By letter dated April 15, 1983, Petro-Wash, Inc., seeks refund of a $1,000 bond it posted to obtain the release of a tank of contaminated diesel oil. As grounds for the refund, it is alleged the problems causing the contamination have been corrected and the contaminated oil removed.

At the hearing one witness was called by Petitioner and an unsworn statement was made by Bruce Mitchell.

FINDINGS OF FACT

1. During a routine inspection on March 30, 1983, a sample diesel fuel taken from Respondent's place of business in Clearwater, Florida, was tested and was found to have a flash point of 660F. Normal flash point for diesel fuel is 1000F.

   
   

2. A Stop Sale Notice was issued March 30, 1983, and sales from this tank were stopped. On March 31, 1983, Respondent posted a $1,000 bond in lieu of having the fuel confiscated. Before the Stop Sale Notice, 1,282 gallons of

   contaminated diesel fuel had been sold from this tank at a price of $1.099 per gallon.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Section 525.06, Florida Statutes, provides that various oils and gasolines used for power sold under a distinctive name which fall below standards fixed by the Department of Agriculture and Consumer Services shall be subject to forfeiture.

   
   

5. Rule SF-2.01, Florida Administrative Code, provides the flash point of diesel fuel No. 1-D shall be not less than l00F. and for diesel fuel oil No. 2-

   0 the flash point shall be not less than 1250F.

   
   

6. The evidence was unrebutted that the fuel sold by Respondent was contaminated, and that some 1,282 gallons of this contaminated fuel had been sold by Respondent for over $1,400. Forfeiture of a $1,000 bond is a reasonable punishment for this infraction. It is therefore

RECOMMENDED that the Petition of Petro-Wash, Inc. for refund of the $1,000 bond be DENIED.

ENTERED this 18th day of July, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 18th day of July, 1983.

COPIES FURNISHED:

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

518 Mayo Building Tallahassee, Florida 32301

Mr. E. A. Lee Petro-Wash, Inc.

Post Office Box 13837, Station K Atlanta, Georgia 30324

Pat N Polish Car Wash

1430 South Missouri Avenue Clearwater, Florida 33516

Honorable Doyle Conner Commissioner of Agriculture Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 83-001272

Orders for Case No: 83-001272