STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2355A

)

CIRCLE K, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice on November 14, 1985 in Tampa, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the stop sale order and acceptance of a bond of $1,000.00, in lieu of confiscation of the gasoline which was mislabeled in two separate incidents.

The request for hearing was initiated by Identification and Graphic Services Company, Inc. (IGS) which had installed the labels on the subject gasoline pumps. An order to show cause was entered to clarify the standing of IGS and Circle

1. In response, Circle K represented that IGS had paid the fine assuming responsibility for the mislabeling. IGS was determined to have standing. The representative of 105 was determined at hearing to be qualified.

   
   

   APPEARANCES

   
   

   FOR PETITIONER: Ron Weaver, Esquire

   Department of Agriculture Mayo Building

   Tallahassee, Florida 32301

   
   

   FOR RESPONDENT: Patrick J. Donnelly IGS

   3331 West Main

   Tampa, Florida 33607

   ISSUES

   
   

   The parties stipulated that the quality of the gasoline was not at issue and that the sole issue was the reasonableness of the amount of the bond. The amount of the bond is based upon the price of the mislabeled gasoline sold or estimated to have been sold, not to exceed

   $1,000.00. The factual issue became how much gasoline had been sold since the tanks were mislabeled by IGS.

   
   

   FINDINGS OF FACT

   
   

   1. On June 4, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Lil General Food Store, 2099 S. Goldenrod Road, Orlando, Florida. This inspection revealed that the regular unleaded gasoline had a 10.3 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold.

      
      

   2. On June 5, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Circle K Store, 29495 S.W. 152nd Avenue, Homestead, Florida. This inspection revealed that the regular unleaded gasoline had a 9.6 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold.

      
      

   3. IGS refurbishes gasoline pumps, painting and replacing the labels on the pumps. IGS was engaged in this activity for Circle K in May 1985 and during that month refurbished both of the pumps subsequently cited by the Department of Agriculture.

      
      

   4. The Respondent was given the opportunity to present evidence regarding the date the signs on the pumps were refurbished and the amount of gasoline pumped after that date. The Respondent was unable to present evidence on the amount of gasoline actually pumped. The pumps in question had been refurbished nearly a month before the inspections.

      
      

      CONCLUSIONS OF LAW

      
      

   5. This order is issued pursuant to Chapter 120.57, Florida Statutes. The Department of Agriculture inspects fuels pursuant to Chapter 525, Florida Statutes. The Department is authorized to confiscate mislabeled fuels or in lieu thereof, a bond based upon the amount of product sold, not to exceed $1,000.00, may be accepted by the Department. See Section 525.06, Florida Statutes.

      
      

   6. The evidence, which was not controverted in this case, reflects the regular unleaded gasoline in Orlando had

      10 percent alcohol, and in Homestead it had 9.6 percent alcohol. Such gasoline may not have more than 1 percent alcohol in it unless it is labeled as containing alcohol or ethanol. These products contained nearly 10 times the allowed amount. See 5F-2.03(7), Florida Administrative Code (1985 Supp.)

      
      

   7. The Respondent, IGS, was given the opportunity to present evidence after the close of the hearing to show less than 1,000 gallons of gasoline was sold at each tank. The Respondent, IGS, presented no evidence to show that less than 1,000 gallons was sold.

      
      

   8. The bond was based upon product sold, based upon the assumed price of $1.00 per gallon. The evidence shows that the tank had been mislabeled for nearly one month. The bonds were reasonable.

RECOMMENDATION

The bonds of $1,000.00 in the two instances above were reasonable and justified, given the violations of Section 5F-2.03(7), Florida Administrative Code (1875 Supp.) and Section 525.06, Florida Statutes.

DONE AND ORDERED this 10th day of December 1985 in Tallahassee, Florida.

STEPHEN F. DEAN

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 10th day of December, 1985.

COPIES FURNISHED:

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Robert Chastain, Esquire General Counsel

Mayo Building - Room 513 Tallahassee, Florida 32301

Ron Weaver, Esquire Department of Agriculture and

Consumer Services Mayo Building

Tallahassee, Florida 32301

Patrick J. Donnelly, President IGS - Identification and Graphic

Services Company, Inc.

3331 W. Main

Tampa, Florida 33607

Docket for Case No: 85-002355

Orders for Case No: 85-002355