STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEAPARTMENT OF ) AGRICULTURE & CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2499

) PIONEER OIL COMPANY, INC. AND ) 1900 GALLONS OF GASOLINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 18 January 1979 at Sarasota, Florida.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

General Counsel

Florida Department of Agriculture and Consumer Services

513 Mayo Building Tallahassee, Florida 32304

For Respondent: Patricia Petruff, Esquire and

Dewey Dye, Esquire Post Office Box 9480

Bradenton, Florida 33506

This proceeding involves the proposed confiscating of 1900 gallons of gasoline at Grooms 76 Station in Bradenton, Florida because the sample taken from the unleaded pump on 4 October 1978 contained a lead content in excess of

1. grams per gallon. Two witnesses were called by Petitioner, three witnesses were called by Respondent and four exhibits were admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. On 4 October 1978 a petroleum inspector for Petitioner, in carrying out a routine inspection, took a gasoline sample from Grooms 76 Service Station's unleaded tank for analysis. When this sample was delivered to Petitioner's mobile laboratory the same day, It was chemically analyzed and found to conform to all requirements except the metal content exceeded .05 grams per gallon.

      
      

   2. The mobile laboratory test to determine lead content of gasoline is not approved by the American Society of Testing Materials because other metals, such as molybdenum, cannot be distinguished from lead by this test. Accordingly, when a sample is tested in the mobile lab and shows greater metal content than

      authorized for unleaded gasoline, the sample is deemed suspect and forwarded to Tallahassee where Petitioner's lab has the proper equipment to determine the lead content of gasoline samples.

      
      

   3. On 10 October 1978, the Tallahassee lab advised the mobile lab that the sample from Grooms Station had a lead content of .223 grams per gallon, well In excess of the .05 grams per gallon allowed.

      
      

   4. The inspector was notified and he immediately went to the station to place a stop-sale on the tank and advise the station operator of the procedures to follow to restore the pump to operation. These included notifying his supplier, who in this case was Pioneer Oil Company. Since it was late in the afternoon when the station was advised of the nonconforming gasoline, the station operator did not advise his supplier until the morning of 11 October.

      
      

   5. At the time the stop-sale order was issued by the inspector, there were 1900 gallons of gasoline in the unleaded tank. On 5 October, the day following the taking of the initial sample, 2400 gallons of unleaded gasoline were pumped into this tank. The remaining 1900-gallon mixture in the tank on 10 October, 1978, when tested, showed a lead content of .065 grams per gallon.

      
      

   6. The tank in question is a 4000-gallon tank, and the station sells 150-

      200 gallons of unleaded gasoline per day. The tank was last filled before 4 October 1978 on 21 September 1978 when 3100 gallons of gasoline were added to this tank. This gasoline added to the not more than 900 gallons in the tank on September 21 comprised the mixture from which the October 4 sample was taken which tested .223 gram of lead per gallon.

      
      

   7. Between the September 21 addition to the tank and the October 4 test, between 2000 and 2800 gallons of gas with this excess lead content was sold and the following day 2400 gallons of unleaded gas was added to this tank. If 1000 gallons of gas with a lead content of .223 gram per gallon was in the tank on' 5 October, the 2400 gallons added to the tank on that date would have a lead content of less than zero to reduce the mixture to .065 gram per gallon. [The total lead content of 1000 gallons containing .223 gram per gallon is 223 grams, while the lead content of a tank with 3400 gallons containing .065 gram per gallon is 221 grams]. The only conclusion that can be drawn from these calculations is that on 4 October the lead content of the gas was less than .223 gram per gallon (contrary to the lab report) or on 5 October there was less than 1000 gallons of gas in the tank and this gas polluted the 2400 gallons added.

      
      

   8. When advised that the stop-sale order had been placed on this pump, Respondent, Pioneer Oil Company, contacted Petitioner's representatives and was advised that lie could remove this gas and sell as regular gas if he posted a bond for the retail value of the 1900 gallons of gas and request a hearing, or, in lieu of a hearing, could forfeit $1000 of the bond posted. His other alternative was to leave the pump inoperative while awaiting the results of the test of the sample that had been taken on 10 October.

      
      

   9. The first information received by Respondent, Pioneer Oil Company, or Grooms 76 Station, that the 4 October sample was out of tolerance and therefore illegal was on 11 and 10 October, respectively.

      
      

   10. Had he been advised on 4 October that the sample of unleaded gas taken that day had excess metal content and was therefore suspect, the President of Pioneer Oil Company testified he would have removed the suspect gasoline before adding the 2400 gallons of unleaded gasoline to the tank on 5 October.

   11. No evidence of wilful violation of the statute or regulations was presented.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

       
       

   13. Section 525.06, Florida Statutes, provides in pertinent part:

       
       

       All oils enumerated and designated in this chapter that are used or intended to be used

       for power, . . . 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.

       
       

   14. Chapter 5F-2, Florida Administrative Code, contains rules pertaining to gasoline and oil inspections.

       
       

   15. Rule 5F-2.01(1)(j) Table 2 contains requirements for designation of lead content in gasoline and establishes that unleaded [has]

       
       

       No intentional addition of lead compounds. May not contain more than 0.05 gram of lead per gallon.

       
       

   16. Rule 5F-2.02(1) FAC provides for the disposition of below standard gasoline but unless lead constitutes suspended matter in gasoline no provision is there made for the disposition of unleaded gasoline containing more than 0.05 gram per gallon. Subsection (a) provides:

       
       

       Gasoline found below the standard by reason of containing water, sediment, or suspended

       matter shall not be confiscated by the Depart- ment of Agriculture' and Consumer Services, but shall be withheld from sale to the public

       until brought up to standard.

       
       

   17. While no evidence was presented respecting the physical quality of lead when added to gasoline, it is not believed to constitute the type of suspended matter contemplated by the rule above quoted.

       
       

   18. It is common knowledge that leaded gasoline is harmful to the catalytic converters installed on most modern American-made automobiles. Accordingly, there is a valid basis for stopping the sale of gasoline designated as unleaded which contains a lead content in excess of the prescribed standard.

       
       

   19. Here Respondent was responsible for the sale of gasoline designated as unleaded which gasoline did not meet the established standards. It is to stop this practice, even when inadvertent, that the Department of Agriculture and Consumer Services has been given the authority to confiscate gasoline that fails to meet the designated standard for the name under which the gasoline is sold.

   20. By failing to notify Respondent that the gasoline sample taken on 4 October was suspect, Petitioner allowed Respondent to contaminate additional gasoline as well as to continue to sell the suspect gasoline to the public. While it is recognized that a stop-sale order would have been inappropriate and unauthorized at the time the mobile lab determined the gasoline to be suspect, it is believed the primary intent of the law, i.e., to protect the public, would be enhanced if the station was advised at the time the mobile lab test showed the gas to be suspect in order that the contamination of additional gasoline could be prevented. The alternative to this procedure would seem to be to provide the mobile lab with the necessary equipment to test gasoline for lead content and thereby be able to take prompt action to protect the consumer from buying illegal gasoline.

       
       

   21. From the foregoing it is concluded that the gasoline at Grooms 76 Station being sold as unleaded on 4 October 1978 contained a lead content of

.223 gram per gallon and was subject to confiscation. It is further concluded that the 2400 gallons of unleaded gasoline meeting the standards for unleaded gasoline were added to this tank on 5 October 1978 and this gasoline became contaminated by being mixed with the higher lead content gasoline in the tank so the resulting mixture contained .065 gram per gallon which was in excess of the

0.05 gram of lead per gallon authorized for unleaded gasoline.

Since the statutes provide that gasoline which does not meet the prescribed standard is subject to confiscation, discretion is given to the Department of Agriculture and Consumer Services to confiscate the gas or to take less drastic measures, if appropriate, under the circumstances of the particular case. Here the Respondent has posted a bond which stands in the place of the gasoline subject to confiscation. In view of the circumstances surrounding the delay between the taking of the sample and the issuance of the stop-sale notice which resulted in the contamination of additional gasoline, the forfeiture of the full amount of the bond posted for the gasoline should not be invoked. It is therefore

RECOMMENDED that upon payment by Respondent of $250 the bond be cancelled and the case closed.

Done and entered this 6th day of February, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Robert A. Chastain, Esquire General Counsel

Florida Department of Agriculture and Consumer Services

513 Mayo Building Tallahassee, Florida 32304

Patricia Petruff, Esquire and

Dewey Dye, Esquire

P. O. Box 9480 Bradenton, Florida 33506

Docket for Case No: 78-002499

Orders for Case No: 78-002499