STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-556

) SUNCOAST OIL COMPANY OF FLORIDA, )

)

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 24 May 1979 at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Leslie McLeod, Esquire

Staff Attorney

Department of Agriculture Mayo Building

Tallahassee, Florida 32301 For Respondent: not present

By letter dated March 6, 1979 Respondent, by E. M. Dunn, requested a hearing on the posting of a $1007.68 bond to release to Respondent gasoline containing an excessive lead content for unleaded gasoline. Prior to issuing Notice of Hearing dated March 22, 1979, the undersigned Hearing Officer contacted Suncoast Oil Company by telephone to inquire if the data of 24 May 1979 was satisfactory for hearing. Upon receiving an affirmative response the Notice of Hearing was forwarded by U. S. Mall to Respondent at the address shown on its letter dated March 6, 1979.

At the hearing on 24 May 1970 attempts were made to contact E. M. Dunn and his office advised that he was then engaged in another matter. When the hearing then commenced, four witnesses were called by Petitioner and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. At a routine inspection conducted on December 27, 1978 at Suncoast's Fine Station 45 at 825 49th Street, St. Petersburg, Florida, a sample of gasoline taken from the unleaded pump was returned to the mobile laboratory for testing. This test showed the lead content to exceed .110 grams per gallon. A stop sale order was placed on the pump from which the sample was taken and the sample was forwarded to Tallahassee for further testing to ascertain the exact

   lead content. The laboratory test conducted at Tallahassee showed the sample to have a lead content of .312 grams per gallon.

   
   

2. In lieu of having the gasoline, on which the stop sale order was entered, confiscated, Respondent posted a bond in the amount of $1007.68 and the gasoline was released to be sold as regular gasoline.

   
   

3. At the time the stop sale was placed on the tank it was determined that some 1441 gallons of excess lead gasoline had been sold from this tank since the tank was last filled. In lieu of confiscating the remainder of the gasoline in this tank, Petitioner was given the option of posting a bond in the amount of

   $1007.68, which represented the retail price of the gasoline sold from that tank. It is the forfeiture of this bond which Petitioner is contesting, and no evidence was submitted by Petitioner why the bond should not be forfeited.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

5. Section 525.06, Florida Statutes, provides that various oils and gasoline used or intended to be used for power when sold under a distinctive name which fail below standards fixed by Department of Agriculture and Consumer Services shall be subject to forfeiture.

   
   

6. Rule 5F-2.01(1)(j), Florida Administrative Code, establishes the standard for unleaded gasoline which provides such gasoline may not contain more than .05 grams of lead per gallon of gasoline.

   
   

7. The sample taken from Respondent's tank at Suncoast Fina Station number

   5 contained considerably higher lead content than is authorized for unleaded gasoline, and the gasoline in that tank was therefore subject to forfeiture. In lieu of confiscating the gasoline, Respondent, pursuant to an agreement between Respondent and Petitioner, posted the bond in question and was thereafter allowed to sell the gasoline remaining in the tank as regular gasoline.

   
   

8. From the foregoing it is concluded that the posting of the bond by Respondent for which the nonconforming gasoline was released to him was proper and that no evidence was presented to show why this bond should not be forfeited. In view of Petitioner's policy not to require the forfeiture of a bond in an amount exceeding $1000, it is

RECOMMENDED that Respondent`s bond be forfeited and the remaining $7.68 be returned to Respondent.

Entered this 8th day of June, 1979.

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

(904) 488-9675

COPIES FURNISHED:

Leslie McLeod, Esquire Staff Attorney

Department of Agriculture Mayo Building

Tallahassee, Florida 32301

Suncoast Oil Company of Florida Attention: Mr. E. M. Dunn

Post Office Box 13095

St. Petersburg, Florida 33733

Docket for Case No: 79-000556

Orders for Case No: 79-000556