STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURAL ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2190

) TEXGAS CORP., S. B. DONATI, )

District Manager, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on March 25, 1977, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Leslie McLeod, Jr.

Florida Department of Agriculture and Consumer Services

Tallahassee, Florida

For Respondent: John Unzicker Texas Corporation Palatka, Florida

By letter dated December 7, 1976, the Department of Agriculture and Consumer Services informed Texgas Corporation that 3100 gallons of its gasoline being offered for sale at a service station in Palatka, Florida, was subject to confiscation pursuant to the provisions of Florida Statutes, Section 525.06.

The Department offered to accept a $1,000 penalty from Texgas in settlement of the matter. By letter dated December 13, 1976, Texgas Corporation requested an administrative hearing. The final hearing was scheduled by notice dated January 6, 1977.

The Department called the following witnesses: John Whitton, Jr., the Chief of the Department's Bureau of Petroleum Inspection; Paul Rheaume, a petroleum inspector employed by the Department; Robert L. Boland, a chemist employed by the Respondent; Ben W. Bowen, the Laboratory Chief in the Department's Bureau of Petroleum Inspection; and Russell A. Brown, a chemist employed by the Department. John Unzicker, the Branch Manager of Texgas Corporation, appeared as the only witness on behalf of Texgas Corporation.

Hearing Officer's Exhibits 1 and 2, and Petitioner's Exhibit 1 were offered into evidence and were received.

FINDINGS OF FACT

1. During October, 1976, and up until the present date, Texgas Corporation has operated a service station in Palatka, Florida, at which motor fuels are offered for sale to the public at large. On October 7, 1976, Paul Rheaume, a petroleum inspector, took a sample of gasoline from one of the pumps at the station in accordance with the Department's regular inspection procedures. The sample was delivered to the Department's mobile chemical laboratory. The sample was found to have a fifty percent evaporated temperature of 246 degrees. A second sample was taken from the tank at the service station. Tests conducted at the mobile laboratory determined that the fifty percent evaporated temperature of that sample was 245 degrees.

   
   

2. The sample taken from the tank at the service station was forwarded to the Department's main laboratory in Tallahassee. Tests conducted at that laboratory found the fifty percent evaporated temperature to be 247 degrees.

   
   

3. There was no evidence offered at the hearing from which it could be determined that Texgas Corporation knew that the fifty percent evaporated temperature of motor fuel that it was offering for sale to the public was not within the standards set out in the Department's rules and regulations. Texgas Corporation has purchased its fuel for resale from Charter Oil International in Jacksonville, Florida. Texgas Corporation did no intentionally adulterate fuel which it received from Charter Oil. Texgas Corporation offered the fuel for resale in good faith, believing that the fuel was within the Department's standards.

   
   

   CONCLUSIONS OF LAW

   
   

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

5. Florida Statutes, Section 525.06 provides in pertinent part as follows: "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. "

   
   

   The Department has adopted a procedure whereby a seller of fuels can receive a release of confiscated fuels through the posting of a bond in the amount of the retail value of substandard fuel that was sold. Once the bond is posted the fuel can be released back to the dealer, but must be withheld from sale to the public until brought up to standard. In the instant case Texgas Corporation posted a bond in the amount of $1,732.90.

   
   

6. Specifications which apply to all gasolines offered for sale in Florida are set out in Rule 5F-2.01(1) of the rules of the Department of Agriculture and Consumer Services. Rule 5F-2.01(1)(c)(2) provides that the fifty percent

   evaporated temperature of gasoline offered for sale shall not be less than 170 degrees Fahrenheit, nor more than 240 degrees Fahrenheit.

   
   

7. Texgas Corporation was offering gasoline for sale which was greater than the maximum permissible fifty percent evaporated temperature. The Stop- Sale Order issued by the Department was therefore valid. In view of the fact that Texgas Corporation did not know that it was offering substandard fuel, and had no practical means of discovering that it was offering substandard fuel for sale, it is appropriate that a minimal fine be levied. A fine in the amount of

$250 would be appropriate.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered finding that the Stop-Sale Order issued by the Florida Department of Agriculture and Consumer Services was valid, and imposing a $250 fine upon Texgas Corporation.

RECOMMENDED this 28th day of March, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Jack Shoemaker, Esquire Resident Counsel

Florida Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32304

John Unzicker Branch Manager Texgas Corporation

P.O. Box 1337

Palatka, Florida 32077

Leslie McLeod, Jr., Esquire Department of Agriculture Room 513 Mayo Building Tallahassee, Florida 32304

Docket for Case No: 76-002190

Orders for Case No: 76-002190