STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-995

) PAY-LESS OIL COMPANY, INC., )

)

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 June 20, 1979 at Tampa, Florida.

APPEARANCES

For Petitioner: Leslie McLeod, Esquire

Staff Attorney

Department of Agriculture Mayo Building

Tallahassee, Florida 32301

For Respondent: Scott B. Meister, V.P.

Pay-Less Oil Company, Inc. 6205 North Dale Mabry Highway Tampa, Florida 33614

By letter dated April 26, 1979 Scott B. Meister, Vice President of Pay-Less Oil Company, Inc., Respondent, requested a hearing on the posting of a $1,000 bond to release to Respondent gasoline containing an excessive load content for unleaded gasoline.

At the commencement of the hearing Respondent stipulated that on April 19, 1979 a sample of gasoline was taken from no lead pump G 44328 at Pick-Kwik station located at 9694 Ulmerton Road, Largo, Florida by an agent of Petitioner, and that Petitioner's witnesses would testify that this sample had a lead content of .083 grams of lead per gallon. Thereafter Respondent's witness testified in mitigation.

FINDINGS OF FACT

1. On Thursday April 19, 1979 an inspector for the Department of Agriculture and Consumer Services, Petitioner, took a sample of gasoline that had been supplied by Pay-Less Oil Company, Inc. from a no-lead pump at the Pick- Kwick station located at 9694 Ulmerton Road, Largo, Florida.

2. This sample was shipped to Tallahassee for analysis on Friday, April 20, 1979 and on Tuesday, April 24, 1979 Respondent was notified that the product in the tank had an excess lead content and a Stop Sale Order was placed on this tank.

   
   

3. To release the gas and free the tank for further use Respondent posted a $1,000 bond. The tank from which the sample was taken had been filled a short time before. By the following day (one day after the sample had been taken) 442 gallons of gasoline had been sold from this tank. By the time Respondent was notified on April 24, 1979, 1,780 gallons of gasoline with the excess lead content had been sold.

   
   

4. Following notification from Petitioner that his gas was bad Respondent, after posting the bond and moving the gas to a leaded gas pump, investigated the incident. This investigation revealed that a new driver had some 250 gallons of leaded gas left in his tank wagon after filling the tank at another station and in dumping this gas at the Umberton Road Station, by mistake, dumped the gas in the no-lead tank. Because he was afraid of being fired he failed to disclose his mistake until after the sample had been taken, the lead content verified and the drivers confronted with explaining how it could have happened.

   
   

5. Petitioner's policy in these contaminated gasoline cases is to allow the gasoline supplier to post a bond equal to the retail price of contaminated gasoline that had been sold from the tank but not to exceed $1,000, upon which if the gas can be sold as another grade the Stop Sale will be lifted. This is the amount forfeited by the supplier rather than have the gasoline confiscated.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

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

   
   

9. The sample taken from Respondent's Pick-Kwik station contained considerably higher lead content than is authorized far 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.

   
   

10. Here there was a lapse of some five days from the time the sample was taken and Respondent advised that his gas was out of standard. Had the mobile lab been available to test the sample Respondent would have been advised of the lead content several days earlier. While this is not an excuse for the Respondent's actions which resulted in the excess lead being added to the tank, it is a matter in mitigation of the forfeiture to be extracted from Respondent.

11. In view of the delay of some five days between the date of the sample and Respondent's notification that his tank was outside standards some reduction in the amount of the forfeiture is warranted.

    
    

12. From the foregoing it is concluded that the sample taken from Respondent's tank on April 19, 1979 had an excessive lead content for unleaded gasoline as alleged and that this gasoline was subject to forfeiture. It is therefore

RECOMMENDED that Respondent, Pay-Less Oil Company, Inc., be required to forfeit $500 of the $1,000 bond posted and the unforfeited $500 be returned to Respondent.

DONE and ENTERED this 11th day of July, 1979, in Tallahassee, Florida.

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

Scott B. Meister, Vice President Pay-Less Oil Company, Inc.

6205 N. Dale Mabry Highway Tampa, Florida 33634

Docket for Case No: 79-000995

Orders for Case No: 79-000995