STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSHINE-JR. FOOD STORES, )

INC., 214, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5316

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on January 29, 1991.

APPEARANCES

For Petitioner: Milton Lawrence, pro se

P.O. Box 2498

Panama City, Florida 32402

For Respondent: Clinton H. Coulter, Jr., Esquire

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner is entitled to a refund of the $1,000 bond it posted in lieu of confiscation pursuant to Section 525.06, Florida Statutes.

PRELIMINARY STATEMENT

At the hearing, Respondent offered into evidence one composite exhibit consisting of the lab report, stop sale notice, and the release agreement. Petitioner did not appear at the hearing.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Sunshine Jr. Stores, Inc., #214 is a service station in the business of selling regular leaded, regular unleaded, and unleaded premium gasoline to the public. Store # 214's place of business is located at the intersection of East Avenue and U.S. Highway 98 in Panama City, Florida.

2. On August 6, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps.

   
   

3. Mr. Wood took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline.

   
   

4. The Departmental testing revealed that the regular-leaded gasoline did not contain any lead. The pumps had been mislabeled at the station and the station was in fact selling regular leaded gasoline as regular-unleaded gasoline. Since the leaded gasoline did not contain any lead, it fell below Departmental standards for leaded gasoline. The store had sold 2467 gallons of the mislabeled product.

   
   

5. In light of the above facts, the Department elected to allow the Sunshine-Jr. Store, #214, to post a $1,000 bond in lieu of confiscation of the gasoline. The bond was posted on August 9, 1990.

   
   

6. The Department assessed Sunshine-Jr. Stores, Inc., #214 the retail value of the product sold, which is equal to the posted bond. The assessment is reasonable and conforms to the amount of assessments imposed by the Department in similar cases.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

8. Section 525.06(1), Florida Statutes, states:

   
   

   All oils . . . that shall fall below the standard fixed by the Department of Agriculture and Consumer Services, are declared 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 burden is on the Petitioner, Sunshine-Jr. Stores, to prove that it is entitled to a refund of the bond it posted. Conversely, the burden is on the Department to prove that the assessment or penalty which it seeks to impose is appropriate. In this case, the Department is seeking to retain the bond as the assessment.

10. In attempting to apply the law to the facts, it is clear that Sunshine-Jr. Food Stores, Inc., #214 violated Section 525.06, Florida Statutes,

by selling mislabeled gasoline and that the Department has entered an assessment which is authorized by that section. The Petitioner has not proven that it is entitled to a refund of the bond. The Department has proven that it has made an assessment that is authorized and is inconsistent with the terms of the statute.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That the request of Sunshine Jr. Food Stores, #214 for refund of the bond posted be DENIED and that the assessment by the Department of Agriculture and Consumer Services in the amount of $1,000 be sustained.

DONE and ORDERED this 16th day of March, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1991.

COPIES FURNISHED:

Milton Lawrence

P. O. Box 2498

Panama City, Florida 32402

Clinton H. Coulter, Jr., Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel

515 Mayo Building

Tallahassee, Florida 32399-0800

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

SUNSHINE-JR. FOOD STORES, INC., #214,

Petitioner,

vs. DOAH CASE NO. 90-5316

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Respondent.

/

FINAL ORDER

THIS CAUSE, arising under Florida's "Petroleum Inspection Law"-- Chapter 525, Florida Statutes ("F.S."), and Chapter 5F-2, Florida Administrative Code ("F.A.C.")--came before the Commissioner of Agriculture of Florida for consideration and final agency action. On August 14, 1990 the Petitioner retailer of gasoline timely filed a request for a formal administrative hearing from the Department's proposed assessment pursuant to Section 525.06, F.S., for Petitioner's sale of gasoline which allegedly had been mislabeled and, therefore, was below standard: selling "regular (connoting leaded) gasoline" which was really unleaded gasoline. This matter was heard in accordance with provisions of Section 120.57(1), F.S., as reflected in the Hearing Officer's Recommended Order rendered March 18, 1991, a copy of which is attached hereto as Exhibit, to which no written exceptions were filed.

Upon consideration of the foregoing and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED:

1. The Hearing Officer's findings of fact are adopted as this agency's findings of fact EXCEPT the latter half of the second sentence of Finding of Fact No. 3, which is a clerical error and should read as follows: "...and the station was in fact selling unleaded gasoline as regular leaded gasoline."

   
   

2. The Hearing Officer's conclusions of law are all adopted as this agency's conclusions.

   
   

3. The Hearing Officer's recommendation--that the Petitioner's request for a refund of the $1,000 bond be denied and that the Department's

$1,000 assessment be sustained--is approved and adopted as the appropriate disposition of this matter.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, Room 514, Mayo Building, 407 South Calhoun Street, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 14th day of May, 1991.

BOB CRAWFORD

Commissioner of Agriculture

ANN WAINWRIGHT

Assistant Commissioner

FILED with the Agency Clerk this 17th day of May, 1991.

Julie Snow, PLS, CLA, Agency Clerk

Copies furnished to:

Sunshine-Jr. Food Stores, Inc. #214 Post Office Box 2498

Panama City, FL 32402 ATTENTION: Milton Lawrence

Clinton H. Coulter, Jr., Esquire Room 513, Mayo Building Tallahassee FL 32399-0800

Florida Administrative Law Reports Gainesville, FL

Diane Cleavinger, Hearing Officer DOAH

Docket for Case No: 90-005316

Orders for Case No: 90-005316