Judges: MARY CLARK
Agency: Department of Agriculture and Consumer Services
Latest Update: Jun. 15, 1987
Summary: $1000 fine appropriate when respondent sold mislabeled gasoline.
87-1452STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1452
)
ELEVEN STORE #26329 )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held in Orlando, Florida on May 15, 1987, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: Harry Lewis Michaels, Esquire
Florida Department of
Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810
For Respondent: William Smith
Southland Corporation, Gas Supervisor
331 Lee Road
Winter Park, Florida 32810 Background and Procedural Matters
This proceeding was initiated when Ed Fusco, a representative of 7-Eleven Stores, requested a hearing on the $1,000.00 bond penalty imposed by the Florida Department of Agriculture and Consumer Services for posting an incorrect octane decal.
At the hearing, the department presented the testimony of two witnesses and a composite exhibit consisting of forms related to the inspection of gasoline and pumps and to actions taken after the inspection.
William Smith, an employee of Southland Corporation, owner of 7-Eleven Stores, represented the Respondent and testified on its behalf. Mr. Smith works under Ed Fusco and is responsible for supervising the sale of gasoline in a three-county area, including Orange County.
After the hearing neither party submitted post-hearing briefs or proposed orders, nor was a transcript provided.
Issues
The issue in the proceeding was whether the Respondent incorrectly labeled the octane on a gasoline pump, and if so, what penalty is appropriate.
Findings of Fact
The station in question, 7-Eleven Store #26329, is located at 3605 Silver Star Road in Orlando, Florida. On October 2, 1986, the agency inspector, Michael Easter, sampled all gasoline products at that station. The samples were shipped to the testing laboratory in Tallahassee and the sample identified as R331, Citco Unleaded Plus, Ethanol Enriched, 90.0 octane was found not to contain ethanol and the octane was 87.5, 2.5 below the level indicated on the pump label.
A Stop Sale was issued by instruction from Ben Bowen, laboratory chief, based on the octane analysis. The Stop Sale was carried out by Inspector Easter on October 8, 1986. With the assistance of the store manager, Inspector Easter determined that 6,465 gallons of gasoline were still on storage and 4,446 gallons of the mislabeled gasoline had been sold. The retail value of the mislabeled gasoline sold far exceeds $1,000.00. Bond was set at the maximum,
$1000.00.
On October 8, 1986, the $1,000.00 bond was posted by Southland Corporation and the gasoline in storage was released to be sold as unleaded gasoline at the proper octane level.
Between September and October, because of consumer demand, 7-Eleven Stores converted its ethanol product to non-ethanol gasoline. In the process, in the area covered by William Smith, there were two instances of mislabeling: the case at issue and another instance resulting in a fine of $300.00, which was not contested.
7-Eleven does not dispute that the product was mislabeled. Both parties agree that the error was wholly inadvertent and the result of the switch-over of the product.
7-Eleven is an active and supportive participant in the Department of Agriculture and Consumer Services "Upgrade Program" to clean-up and monitor wells. The company calls in the Department of Environmental Regulation whenever leaks are found.
The company disputes the amount of the penalty and claims that it is excessive.
While he feels that the quantity of gasoline sold was less than stated on the Release Notice or Agreement, William Smith concedes that the store manager, John Ballary, signed the form and participated in the inspection process. The figure was obtained from the store itself. He concedes also that from the date of delivery to the date the figure was computed is nine days and sales of 500 gallons a day are about average.
A gasoline which has a low octane value has the effect of causing knocking. If the knock is prolonged and sufficiently severe, engine overheating will occur and cause damage to the pistons, rings, bearings, or other mechanical parts of the engine. The label on the pump is intended to inform the consumer of the octane of the product he is buying.
The procedures followed by the agency in this case and the bond assessed are consistent with agency practice in implementing the gasoline inspection program.
Conclusions of Law
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1) F.S.
All gasoline sold, offered or exposed for sale in the state is subject to inspection and analysis by the Department of Agriculture and Consumer Services. Sections 525.01 and 525.02 F.S.
Section 525.06 F.S. provides:
525.06 Gasoline or oil below standard, subject to confiscation.--All oils enumerated and designated in this chapter that are used or intended to be used for power, illuminating, cooking, or heating purposes, when sold under a distinctive name that shall fall below the standard fixed by the Department of Agriculture and Consumer Services, are declared to be illegal and shall be subject to confiscation and sale by order of the department. Instead of confiscation, a refundable bond in cash or by certified check in the amount of the value of the product subject to confiscation may be accepted by the department, pending legal disposition. The amount of this bond shall 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.
(emphasis added)
The relevant standard fixed by the Department is found in Rule 5F- 2.00l(1)(i) F.A.C., which provides:
Antiknock (Octane) Index -- ASTM Specification D439. The Antiknock Index shall not be more than one (1.0) less than any Antiknock Index displayed on the dispenser, and in addition not more than one (1.0) below that determined by tests of the same gasoline in the bulk tank, ship, tank car or tank truck from which such gasoline was represented to have been delivered or distributed.
The Department met its burden of proving that the product sold was below standard. The bond fixed was consistent with the Departments statutory authority. Notwithstanding the Respondents uncontested good faith, no evidence
was produced to justify a deviation in this case from the Department's prior consistent application of the law and its rules.
The $1,000.00 assessment is reasonable and an appropriate compromise in lieu of confiscation.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED:
That a final order be entered finding the Respondent committed the alleged violation and approving the penalty of $1,000.00.
DONE and RECOMMENDED this 15th day of June, 1987 in Tallahassee, Florida.
MARY CLARK
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 15th day of June, 1987.
COPIES FURNISHED:
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32399-0810
Robert Chastain, Esquire General Counsel Department of Agriculture
and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399
Mr. Ted Helms, Chief
Bureau of Licensing and Bond Department of Agriculture Lab Complex
Mayo Building, Room 418 Tallahassee, Florida 32399-1650
Harry Lewis Michaels, Esquire Senior Attorney
Florida Department of Agriculture and Consumer Services
Mayo Building, Room 513 Tallahassee, Florida 32399-0810
William Smith Southland Corporation Gas Supervisor
331 Lee Road
Winter Park, Florida 32810
Ed Fusco
Division Gasoline Manager
7-Eleven Stores, Division 1599 1300 Lee Road
Orlando, Florida
Docket for Case No: 87-001452
Orders for Case No: 87-001452
