STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RON'S CHEVRON # 4, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3006

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Clearwater, Florida, on October 17, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Ronald Trimm

Ron's Chevron # 4 1790 North Hercules

Clearwater, Florida 33515

For Respondent: William C. Harris, Esquire

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

At the hearing, Ronald Trimm testified on behalf of Petitioner, and the Department called one witness, Nancy Fischer, Chemist III with the Department of Agriculture and Consumer Services. The Department also introduced one exhibit. No proposed findings of fact or transcript have been filed.

FINDINGS OF FACT

The following findings of fact are based upon the stipulation of the parties and the evidence presented:

1. During a routine inspection on June 11, 1986 at Ron's Chevron #4, 1790 North Hercules, Clearwater, Florida, samples of all grades of gasoline were taken. A sample was taken from each side of a pump labeled "Chevron Unleaded". Using a field method for measuring lead content, it was determined that both samples contained more than 0.11 grams of lead per gallon, which exceeds the standard of 0.05 grams per gallon.

   
   

2. The results of the field measurement were confirmed at the Department's main laboratory by Nancy Fischer on June 16, 1986.

3. A stop sale notice was issued on June 12, 1986, and the contaminated product was withheld from sale to the public. On June 17, 1986, Petitioner was required to post a bond in the amount of $1,000 in lieu of the Department confiscating 5,850 gallons of fuel. The product was released for sale as Chevron Regular, a leaded fuel. New product was placed in the tank and proved lead free.

   
   

4. Lead in gasoline is detrimental to a car designed to run on unleaded fuel. The lead can cause serious damage to the emission system and possibly the engine by stopping up the catalytic converter.

   
   

5. The parties stipulated that the sole issue in this case is the amount of the bond. There is no evidence that Petitioner intentionally contaminated the fuel for financial gain. The cause appears to have been carelessness at some point between, or at, wholesale and retail. The Department accepted a bond of $1,000 and allowed Petitioner to retain the fuel for relabeling and sale as leaded fuel. The Department's penalty imposed in this case is consistent with its past practice in factually similar cases.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The Department of Agriculture and Consumer Services has the authority to require retailers to post a refundable bond of up to $1,000 when gasoline or oil sold by retailers falls below standards adopted by the Department. Section 525.06, Florida Statutes.

   
   

7. Under the rulemaking authority conferred by Section 525.14, Florida Statutes, the Department has adopted Rule 5F-2.01, Florida Administrative Code, which in pertinent part establishes standards for lead content in unleaded gasoline. Specifically, it provides that unleaded gasoline may not contain more than 0.05 grams of lead per gallon. In this case there is no dispute that the unleaded gasoline inspected and tested from Petitioner's station exceeded this standard. The only issue is whether the amount of the bond required by the Department was reasonable.

   
   

8. Requiring Petitioner to post a bond of up to $1,000 is an administrative penalty which the Department is authorized to impose for violations of Section 525.06, Florida Statutes. Florida courts have recognized that when the penalty chosen by an agency is within the range of penalties that agency is statutorily authorized to impose, the severity of the sanction is a matter within the agency's discretion. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978), on remand 368 So.2d 456 (Fla. 3rd DCA 1979); G & B of Jacksonville v. Department of Business Regulation, 362 So.2d 951 (Fla. 1st DCA 1975); Hartnett v. Department of Insurance, 406 So.2d 1180 (Fla. 1st DCA 1951).

   
   

9. It is admitted that the facts of this case warrant the imposition of a penalty and the penalty imposed is clearly within the allowable range of sanctions available to the Department. There is no evidence that the posting of a $1,000 refundable bond under these circumstances is unreasonable, and therefore the penalty which the Department seeks to impose should be approved. This penalty is consistent with the past practice of the agency in similar situations.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department enter a Final Order requiring Petitioner to post a $1,000 refundable bond.

DONE AND ENTERED this 23rd day of October 1986 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October 1986.

COPIES FURNISHED:

Ronald Trimm Ron's Chevron #4

1790 North Hercules

Clearwater, Florida 33515

William C. Harris, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

The Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-003006

Orders for Case No: 86-003006