STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUDSON OIL COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-463

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 19, 1980, in the small conference room at the City Hall, Clearwater, Florida. The issue for determination at the hearing was whether the petitioner violated the standards for gasoline offered for sale in Florida and, if so, was subject to the confiscation of the product and the posting of a bond in the amount of

$1,000.00 prior to the product's release for sale.

APPEARANCES

For Petitioner: No appearance 1/ For Respondent: Robert A. Chastain

General Counsel

Room 513, Mayo Building Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found.

1. On January 15, 1980, Nick Pappas, a petroleum inspector with respondent's Division of Standards, took samples of regular and no lead gasoline from petitioner's station No. 582 located at 3130 Gulf to Bay Boulevard in Clearwater, Florida. An analysis of the samples was performed in the Tallahassee lab showing lead contents in the amount of 0.56 grams per gallon in the no lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon.

   
   

2. A second sampling and analysis was performed approximately eleven days later because more gasoline had been dumped into the tank since the first sampling. Test results indicated essentially the same level of lead content in the unleaded gasoline. The respondent thereupon issued a "stop sale notice" on January 26, 1980, due to the high content of lead in the product.

3. Tom Nestor, the station manager, was informed that he had several alternatives, including confiscation of the product, with the petitioner posting a bond in the amount of $1,000.00 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on January 28, 1980. Respondent received a bond in the amount of $1,000.00 from Petitioner, and this amount was deposited into the Gasoline Trust Fund.

   
   

4. Tom Nestor admitted the truth of the above facts and admitted that he did not check the product after it was dumped into the tank. He stated that the driver of the delivery truck delivered the product to the wrong gasoline tank. According to Mr. Nestor, the tanks at his station were not properly marked at the time the delivery was made. The "premium" tank was being used to dispense "unleaded" gas, and the deliverer dumped "regular" gasoline into the "unleaded" tank.

   
   

   CONCLUSIONS OF LAW

   
   

5. Gasoline products falling below the standards fixed by the respondent are illegal and subject to confiscation and sale by the respondent. Florida Statutes, Section 525.06. Apparently, it is the policy of the respondent to allow the illegal product to be released under a bond and to be resold by the station from which it was confiscated as regular gasoline.

   
   

6. Here, the respondent has sufficiently demonstrated that the product being sold as unleaded gasoline fell below the standards fixed by the respondent. Florida Administrative Code, Rule 5F-2.01(1)(j) provides that the lead per gallon in unleaded gasoline may not exceed 0.05 gram. The petitioner's sample was found to contain lead in an amount which equals over ten times that amount. The petitioner having offered no evidence to rebut this finding, the action of the respondent is justified.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request for a return of the cash bond be DENIED.

Respectfully submitted and entered this 28th day of July, 1980, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301

ENDNOTE

1/ A notice of hearing dated May 6, 1980, was mailed to Tom Raimo, General Counsel for petitioner in Kansas City, Kansas. Mr. Raimo requested the hearing in this proceeding. When no one appeared for petitioner at the scheduled hearing on June 19, 1980, a telephone call was placed to the Hudson Oil station #582, 3130 Gulf to Bay Boulevard in Clearwater to inform its manager of the

hearing. Mr. Tom Nestor, the station manager, then came to the hearing and testified.

COPIES FURNISHED:

Tom Raimo, General Counsel Hudson Oil Company

Post Office Box 3100 Kansas City, Kansas 66103

Robert A. Chastain, General Counsel Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Tom Nestor

3130 Gulf to Bay Boulevard Clearwater, Florida

Honorable Doyle Conner Commissioner of Agriculture State of Florida

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 80-000463

Orders for Case No: 80-000463