STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D & H OIL AND GAS COMPANY, ) INC., dba OASIS FOOD STORE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6468

)

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 March 21, 1991.

APPEARANCES

For Petitioner: C. B. Faile

141 John Sims Parkway Valparaiso, Florida 32580

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 called two witnesses and offered into evidence five exhibits. Petitioner called two witnesses and offered one exhibit into evidence.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, D & H Oil and Gas Company, Inc., dba Oasis Food Store, owns and operates an Oasis Food Store located at 2521 Thomas Drive in Panama City Beach, Florida. As part of the operation of that store, Petitioner operates a gasoline station which sells regular unleaded, unleaded plus, and unleaded premium gasoline to the public.

   
   

2. On September 14, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Petitioner 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 Petitioner. 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 unleaded plus gasoline contained 9.3% alcohol. The pump for the unleaded plus gasoline did not have a label or sticker on it indicating that it contained alcohol. Since the pump did not have such a sticker on it, the sale of any unleaded plus gasoline from that pump would be in violation of Departmental standards for such gasoline. 1/ The store placed the appropriate sticker on the unleaded plus pump as soon as it was possible.

   
   

5. In light of the above facts, the Department elected to allow the Petitioner to post a $1,000 bored in lieu of confiscation of the gasoline. The bond was posted on September 17, 1990.

   
   

6. No evidence of the amount of gasoline sold while the label was absent was submitted at the hearing. 2/

   
   

7. The Department assessed Petitioner $1000.00, which is equal to the amount of the posted bond. This amount was not based on any evidence of the amount of gasoline sold from the unleaded plus pump during the time the label was not on the pump. Such an assessment is clearly outside the Department's authority. See Section 525.06, Florida Statutes. Therefore, Petitioner is entitled to a refund of its bond.

CONCLUSIONS OF LAW

1. 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).

   
   

2. 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.

   
   

3. The burden is on the Petitioner, D & H. Oil and Gas Company, Inc., 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.

   
   

4. In this case, the Department has not proven that it made an assessment against Petitioner that is authorized by Section 525.06, Florida Statutes. Therefore, the Petitioner is entitled to a refund of its bond.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That the request of D & H Oil and Gas Company, Inc., for refund of the bond posted be GRANTED.

DONE and ORDERED this 23rd day of May, 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 23rd day of May, 1991.

ENDNOTES

1/ All of the store's other unleaded plus pumps, as well as the premium pumps had the alcohol stickers on them.

2/ The Department had requested that Mr. Faile supply them with that information before he posted the bond. Mr. Faile did not bring the information with him when he posted the bond. No further demands were made on Mr. Faile to supply the information and he was allowed to post the bond. The Department did not conduct any discovery in preparation for this hearing and did not subpoena the records it would need to establish the quantity of unlabeled gasoline which had been sold. Section 525.06, Florida Statutes does not permit the Department to formulate a presumption that Petitioner had sold the maximum amount the

Department could assess when such information is not supplied by the Petitioner after a request by the Department. To permit such a presumption to be made would be unconstitutional since noncompliance with a request of the Department is simply not probative of the quantity of gasoline sold, if any. This is especially true on the facts of this case where no good faith effort was made to ascertain the information the Department was seeking and the statutes clearly afford the Department the authority to subpoena such records.

COPIES FURNISHED:

C. B. Faile

D & H Oil and Gas Company, Inc.

141 John Sims Parkway Valparaiso, Florida 32580

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-006468

Orders for Case No: 90-006468