STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1985

)

GAS KWIK, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tampa, Florida, on October 21, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Robert Chastain, Esquire

Mayo Building, Room 513 Tallahassee, Florida 32301

For Respondent: Tony Perrone, Comptroller

Gas Kwick, Inc.

Post Office Box 5751 Tampa, Florida 33675

This proceeding arose as a result of two stop sale notices issued by Petitioner against Respondent with respect to petroleum products being sold at Respondent's service station at 8401 North Armenia Avenue, Tampa, Florida. The stop sale notices were based on inspections of the product by Respondent's personnel which indicated the presence of suspended matter and also that the product was below regulatory standards. Respondent posted a bond in lieu of confiscation of the product in the amount of $614.25. The issue presented is whether or not forfeiture of the bond amount is warranted.

At the hearing, Petitioner presented the testimony of James Gillespie and Nancy Fisher, and submitted Petitioner's Composite Exhibit 1 in evidence.

Respondent presented the testimony of Tony Perrone.

At the commencement of the hearing, Tony Perrone, Comptroller of Respondent Gas Kwick, Inc., stated that he had been authorized to represent it in this proceeding. Mr. Perrone was advised by the Hearing Officer of its rights and the procedures to be followed in the administrative proceeding.

FINDINGS OF FACT

1. On June 2, 1983, Petitioner Department of Agriculture and Consumer Services' Inspector James Gillespie conducted an inspection of Respondent Gas Kwick, Inc.'s service station located at 8401 North Armenia Avenue, Tampa,

   Florida. He took samples of all petroleum products and observed that the Super Unleaded Ethanol contained suspended matter. He thereupon took the sample for analysis to the Department's portable laboratory for analysis on the same date. The field analysis disclosed that the product contained more than 14.2 percent of ethanol (ethylene alcohol) which exceeded the maximum allowable amount of 10 percent. Further, the 50 percent evaporated temperature of the product was 164 degrees which was less than the minimum allowable 170 degrees. The product sample was also sent to Petitioner's main laboratory for confirmation of the findings, and it was there determined that the super unleaded sample contained

   25.2 percent of ethanol. Excessive ethanol in gas9line can be corrosive and cause damage to plastic parts of the engine. It can also cause phase separation of the contents in the gas tank producing layers which can get into the carburetor and cause the vehicle to stop. Excessive ethanol also diminishes driveability of the automobile and can damage fuel pumps. (Testimony of Gillespie, Fisher, Petitioner's Exhibit 1)

   
   

2. Inspector Gillespie issued stop sale notices to Respondent on June 2 and June 3, 1983, which notified Respondent to immediately stop the sale of the super unleaded product and hold the same subject to further instructions. In order to obtain release of the product, Respondent elected to post a bond in the amount of $614.25 which represented the retail price for 394 gallons of the product that had been sold. One of the stop sale notices had been released by the installation of a new filter by Respondent to eliminate suspended matter. The release notice by which Respondent elected to post a cash bond in lieu of confiscation of the product provided that the gasoline in question should be removed from the tank and replaced by a new product. (Testimony of Gillespie, Petitioner's Exhibit 1)

   
   

3. Respondent's representative testified that the firm had tried to be careful in the use of ethanol enriched gasoline and had immediately taken corrective action with respect to the super unleaded product in question by replacement. He pointed out that the amount of gasoline found to be defective represented only about 3 percent of the total amount located at the firm's 20 service stations and that this was a first offense which was unintentional. (Testimony of Perrone)

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 525.06, Florida Statutes, provides that gasoline products which fall below standards fixed by the Department of Agriculture and Consumer Services are illegal and subject to confiscation and sale by order of the Department. The statutory provision also provides that, instead of confiscation, a refundable bond in cash in the amount of the value of the product subject to confiscation may be accepted by the Department pending legal disposition. The amount of the bond must be limited to $1,000. 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.

   
   

5. Section 526.06 permits the sale of alcohol blended fuels which contain

   90 percent unleaded gasoline and 10 percent ethyl alcohol. Petitioner's Rule 5F-2.01(.1)(c)2, Florida Administrative Code, as to the authorized distillation

   range of gasoline, provides that the 50 percent evaporated temperature shall not be less than 1700 F and shall not exceed 2400 F.

   
   

6. The evidence establishes that the super unleaded ethanol enriched product sold by Respondent violated Section 526.06, Florida Statutes, and

Respondent's above-cited rule in that the product contained in excess of 10 percent ethyl alcohol and had a depressed midfraction temperature of 164 degrees. Accordingly, Petitioner was justified in issuing the stop sale notices and subjecting the product to confiscation. In view of the fact that 394 gallons of the product had been sold in the amount of $614.25, the assessment of that amount pursuant to Section 925.06, Florida Statutes, is authorized and warranted.

RECOMMENDATION

That the bond posted by Respondent in the amount of $614.25 be retained by Petitioner as an assessment under Section 525.06, Florida Statutes.

DONE and ENTERED this 8th day of November, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 8th day of November, 1983.

COPIES FURNISHED:

Robert Chastain, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Tony Perrone, Comptroller Gas Kwick, Inc.

Post Office Box 5751 Tampa, Florida 33675

Honorable Doyle C. Conner Department of Agriculture and

Consumer Services The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-001985

Orders for Case No: 83-001985