STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNMARK INDUSTRIES, THOMPSON ) SERVICE STATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-161

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

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in the above styled case on June 26, 1980, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Arthur Weyant

Maintenance Supervisor Sunmark Industries Post Office Box 13135

Fort Lauderdale, Florida 33316

For Respondent: Robert A. Chastain, Esquire

General Counsel Department of Agriculture

and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301

By letter dated January 14, 1980, Arthur Weyant Maintenance Supervisor of Sunmark Industries, Petitioner, requested a formal administrative hearing on the posting of a $1,000 bond which was required by the Respondent, Department of Agriculture and Consumer Services, in order to release leaded gasoline for public sale.

The issue in this case is whether the Petitioner is entitled to the return of the $1,000 posted to obtain the release of 3,180 gallons of gasoline taken from the unleaded pump at the Thompson Service Station, 4001 South Olive Avenue, West Palm Beach, Florida, on December 28, 1979, which contained a load content in excess of .05 gram per gallon. The Petitioner did not dispute the allegation that the gas contained an excessive amount of lead but rather that the company was entitled to a refund of the money due to mitigating circumstances.

Proposed Recommended Orders have been submitted by the parties. Those findings not included in this Recommended Order were net 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. On December 25, 1979, Garden Oliver, a petroleum inspector with the Department of Agriculture and Consumer Services (hereafter Department) took a gasoline sample from the number one storage tank at Thompson Service Station, 4001 South Olive Avenue, West Palm Beach, Florida. This sample was shipped to Port Everglades, Ft. Lauderdale, Florida, for analysis and on January 8, 1980, the Petitioner was notified that the unleaded gasoline in the storage tank was illegal in that it contained .55 gram of lead per gallon, which is in excess of

   .05 gram of lead per gallon allowable under the Department rules governing the sale of unleaded gasoline to the public.

   
   

2. On the basis of the laboratory analysis, Mr. Oliver placed a stop sale notice on the tank which dispensed the illegal unleaded gasoline. However, in the interim period between the original sampling and posting of the stop sale notice, an additional delivery of unleaded gasoline was placed in storage tank number one which necessitated a second sample. The laboratory analysis was performed in Port Everglades and again showed a lead content in excess of that allowed by Department rules. The Petitioner was permitted to post a $1,000 bond to secure the release of 3,160 gallons of leaded gasoline remaining in tank number one which was then sold by the service station as regular gasoline.

   
   

3. The Petitioner attempted to discover the cause of the contamination and found that during the course of renovation of the service station an existing line running' between storage tanks was overlooked. The lime ran between a leaded and unleaded storage tank which had recently been converted from leaded and permitted the leaded gasoline to flow into and contaminate the unleaded tank.

   
   

4. The contamination was not deliberate and the problem has now been corrected by sealing off the line.

   
   

5. There is no dispute as to the facts as set forth above. The only dispute is whether Petitioner is entitled to the refund of the $1,000 bond because of the unusual circumstances surrounding this case.

   
   

6. In mitigation, the Petitioner has asserted that Sunmark Industries has am unblemished record of serving the public and that the cause of the contamination was accidental.

   
   

7. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   All oils enumerated and designated in this Chapter that are used or in-

   tended to be used for power, illumina- ting, 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....

   
   

10. Pursuant to Rule 53-2.01, Florida Administrative Code, the lead content in unleaded gasoline may not contain more than 0.05 gram of lead per gallon.

    
    

11. The facts establish and the Petitioner did not dispute, that the gasoline in question was illegally sold as unleaded. Neither the statute nor the rule require the Department to prove that a vendor intended to sell leaded gasoline as unleaded or had knowledge of such occurrence in order to how a violation.

    
    

12. However, as noted by the parties, Sunmark Industries has a long standing record of compliance with state standards. Additionally, because of the time lag between the original test and the posting of the stop sale notice, another shipment of gasoline in an undetermined amount was placed in the contaminated tank. Under such circumstances, it is appropriate for Sunmark to receive a reimbursement of half of its $1,000 bond or $500.00.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department return to the Petitioner $500.00 of the $1,000 bond required to be posted in lieu of confiscation of 3,160 gallons of leaded gasoline.

DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida.

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981.

COPIES FURNISHED:

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32301

Arthur Weyant Maintenance Supervisor Sunmark Industries Post Office Box 13135

Fort Lauderdale, Florida 33318

John Whitton

Chief, Bureau of Petroleum Inspection

Division of Standards Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 80-000161

Orders for Case No: 80-000161