STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C & K OIL COMPANY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2357

) STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE and CONSUMER )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in West Palm Beach, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on January 29, 1980. The parties were represented by:

APPEARANCES

For Petitioner: Mr. Carl McKinney, Pro Se

C & K Oil Company

U.S. 27 and Second Streets Post Office Box 1086

Moore Haven, Florida 33471

For Respondent: Robert A. Chastain, Esquire

General Counsel, Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301

On October 11, 1979, the Department of Agriculture and Consumer Services (hereafter Department) stop-saled 2,400 gallons of gasoline because the gasoline allegedly contained an excessive amount of lead. The gasoline was released for sale the next day when the Petitioner's representative, Mr. Carl McKinney, posted a bond in the amount of $1,000.00.

The Petitioner requested an administrative hearing in order to contest the forfeiture of the $1,000.00 bond by the Department. At the final hearing, the facts were essentially agreed to. The remaining issue is whether the Petitioner is entitled to the return of the $1,000.00 bond.

A Proposed Recommended Order was submitted by the Department and has been considered by the Hearing Officer. Mr. McKinney submitted a letter outlining his position on this matter. Findings of Fact not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.

FINDINGS OF FACT

1. The Petitioner is a gasoline distributor that provided the gasoline in question to the South Bay Arrow Service Station in South Bay, Florida, which is operated by an independent contractor.

   
   

2. On October 10, 1979, a petroleum inspector, Fen Frederick, took a gasoline sample for analysis of unleaded gasoline from the South Bay Arrow Service Station at South Bay, Florida. This sample was tested by the state gasoline laboratory at Port Everglades in Fort Lauderdale, Florida, and on October 11, 1979, the laboratory notified Mr. Frederick that the unleaded gasoline did not meet state standards, in that it contained 2.24 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the respondent department's rule. On the basis of this information, Mr. Frederick went to the South Bay Arrow Service Station and placed a stop-sale notice on the tank that dispensed the unleaded gasoline. The tank in question at the time had a remaining 2,400 gallons of gasoline. Since the independent owners of South Bay Arrow Service Station could not post a cash bond for the release of the

   stop-sale, Petitioner, Carl McKinney, agreed to post a bond of $1,000.00 for the release of the stop-sale of the impounded gasoline.

   
   

3. The gasoline which Petitioner sold to the service station met state standards at the time of delivery and Petitioner has no direct knowledge of how the gasoline came to be substandard.

   
   

4. Petitioner has not challenged the authority of the Department to utilize cash bonds in lieu of confiscation and sale of substandard gas.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 525.06, Florida Statutes, 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 confiscation

   and sale by order of the Department. "

   
   

6. Rule 5F-2.01, Florida Administrative Code, which sets standards for unleaded gasoline, provides that:

   
   

   1. GASOLINE. The following specifica- tions apply generally to all gasolines offered for sale in Florida

      
      

      (j) Lead -- ASTM D526. For levels below

      .05 grams per gallon D2547 and D2599. For all levels Atomic, Absorption Spectros- copy, Kashike, Yamazoe, and Oshima.

      Maximum limitations for lead content designated are shown in Table 2.

      Table 2. REQUIREMENTS FOR DESIGNATION OF LEAD CONTENT IN GASOLINE.

      
      

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

      Low Lead May contain lead compounds not to exceed 0.5 gram of lead per gallon.

      
      

7. There is no dispute that the gasoline sold as unleaded did not meet the standards set forth above. In posting the bond for the station operators, the Petitioner stands in the shoes of the operators insofar as the bond is concerned.

   
   

8. Accordingly, based upon the present record, the Petitioner is not entitled to the relief requested.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department deny Petitioner's request for the return of the

$1,000.00 bond posted in lieu of confiscation of substandard unleaded gasoline.

DONE and ORDERED this 20th day of May, 1980, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

Mr. Carl McKinney

C & K Oil Company, Inc.

U.S. 27 and Second Street Post Office box 1086

Moore Haven, Florida 33471

Mr. John Whitton Division of Standards

Bureau of Petroleum Inspection Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 79-002357

Orders for Case No: 79-002357