STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN I. JONES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-1454

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted on June 1, 1987, at Lake City, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

FOR PETITIONER: Mr. Glenn I. Jones, President

Glenn I. Jones, Inc. Post Office Box 549

Lake City, Florida 32055

FOR RESPONDENT: Harry Lewis Michaels, Esquire

Senior Attorney

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32399-0800

ISSUES AND INTRODUCTION

On February 24, 1987, the Petitioner posted a bond in the amount of $844.80 in lieu of confiscation of 1600 gallons of diesel fuel that was found to be below standard. The ultimate issue in this case is whether some or all of the bond should be refunded to the Petitioner.

At the hearing the Petitioner testified on his own behalf. He did not call any other witnesses and did not offer any exhibits. The Respondent presented the testimony of two witnesses and offered one composite exhibit which was received in evidence without objection. Neither party requested a transcript of the hearing and both parties waived the right to file proposed recommended orders. Several days after the hearing, the Petitioner mailed to the Hearing Officer a copy of a letter written by an employee of the Department of Agriculture and Consumer Services regarding this matter. I have not based any findings of fact on the information in that letter because it was not received in evidence at the time of the hearing

FINDINGS OF FACT

Based on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.

1. On November 17, 1986, an employee of the Department of Agriculture and Consumer Services (hereinafter "Department") inspected various fuels offered for sale at the Mobile Service Station located at 1-75 and State Road 236. The inspection revealed that a quantity of diesel fuel offered for sale at that service station was below standards.

   
   

2. On November 18, 1986, an employee of the Department returned to the service station described above and issued a Stop Sale Notice regarding the substandard diesel fuel, placed a seal on the pump to prevent further retail sale of the substandard diesel fuel, and took a second sample of the diesel fuel for the purpose of confirmation testing. The second sample of the diesel fuel was also found to be below standards.

   
   

3. The service station described above is owned by the Petitioner. The Petitioner leases the station to an operator and delivers the fuel that is sold at the service station. On November 18, 1987, when the Stop Sale Notice was issued, the person on duty at the service station called Petitioner's office to advise Petitioner that the Stop Sale Notice had been issued and that the diesel pump had been sealed. Mr. Glenn Jones, the president of Petitioner, was not at the office at the time of that call, but was informed about the Stop Sale Notice within the next few days.

   
   

4. On February 24, 1987, another representative of the Department visited the subject service station and on that day Mr. Glenn Jones signed a Department form titled Release Notice or Agreement and posted a bond in the amount of

   $844.80. The terms and conditions of the bond are not part of the evidence in this case. Thereupon, the Department removed the seal from the diesel pump at the subject service station and the 1600 gallons of diesel fuel were released to the Petitioner. During the period between November 18, 1986, and February 24, 1987, diesel fuel could not be sold to retail customers at the subject service station because the diesel fuel pump was sealed. This inability to sell diesel fuel to retail customers for over 90 days caused the service station to lose a substantial amount of business.

   
   

5. In the normal course of events, within no more than one week from the time a Stop Sale Notice is issued the owner of substandard fuel can arrange to post a bond and have the seal removed from the fuel pump. It is very unusual for it to take more than 90 days as it did in this case. Several circumstances contributed to the unusual delays in this case. Among those circumstances were the fact that during the period from November 18, 1986, to February 24, 1987, both Mr. Glenn Jones and the Department employee who was supposed to follow up on this matter suffered from serious illnesses. The matter was further complicated by the fact that the fuel samples were taken by a mobile testing unit and the mobile testing unit moved on to another area shortly after the samples in this case were taken.

   
   

6. There is no competent substantial evidence in the record of this case regarding the retail price of the substandard diesel fuel which was the subject of the Stop Sale Notice on November 18, 1986, nor is there any evidence as to the amount of such fuel, if any, that was sold to the public.

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

8. Section 525.02, Florida Statutes, provides for the Department of Agriculture and Consumer Services to periodically collect and analyze samples of fuels offered for sale in this state. And Section 525.06, Florida Statutes, provides:

   
   

   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.

   
   

9. The foregoing statutory provision provides that the bond is "refundable. The Petitioner clearly seeks a refund of the bond and the Department has not presented evidence of any basis upon which it should continue to retain the bond. Specifically, the Department has not presented any competent substantial evidence of the terms of the bond. Absent evidence of such terms, there is no record basis upon which to conclude that the Department is entitled to estreat the bond or declare a forfeiture of the bond. Further, there is no competent substantial evidence that any of the substandard diesel fuel was sold to retail customers. Therefore, there is no factual foundation for the Department to make the assessment authorized by the last sentence of Section 525.06, Florida Statutes.

RECOMMENDATION

Based on all of the foregoing, it is recommended that the Department of Agriculture and Consumer Services issue a final order in this case to the effect that the petitioner, Glenn I. Jones, Inc., is entitled to a refund of the full amount of the bond it posted on February 24, 1987, in the amount of $844.80.

DONE AND ENTERED this 9th day of June, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 9th day of June, 1987.

COPIES FURNISHED:

Mr. Glenn I. Jones Glenn I. Jones, Inc. Post Office Box 549

Lake City, Florida 32055

Harry Lewis Michaels, Esquire Senior Attorney

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32399-0800

The Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Robert Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Docket for Case No: 87-001454

Orders for Case No: 87-001454