STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1601

) SAVEWAY OIL, INC. t/a SHAMROCK ) SERVICE STATION )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, R. T. Carpenter, on October 16, 1980. The Petitioner was represented by Robert A. Chastain, Esquire, Department of Agriculture and Consumer Services, May Building, Tallahassee, Florida 32301.

This matter arose from a stop-sale order issue by Petitioner against Respondent on gasoline which allegedly exceeded the lead content allowable for sale as unleaded fuel. The gasoline was released to Respondent upon the posting of bond in lieu of confiscation. Respondent requested an administrative hearing on Petitioner's action, but did not appear at the duly scheduled hearing.

FINDINGS OF FACT

1. On July 10, 1980, Respondent's fuel inspector took a sample of gasoline being sold as unleaded from Respondent's service station in Mascotte, Florida. This sample was subsequently analyzed at Petitioner's mobile laboratory in Mineola and at its permanent facility in Tallahassee. Both tests indicated a lead content in excess of .084 grams per gallon, which exceeds the maximum permissible lead content of .05 grams per gallon established by Rule 5F- 2.01(1)(j), Florida Administrative Code.

   
   

2. Petitioner's inspector then returned to Respondent's service station where he issued a stop-sale order on the substandard gasoline. The inspector offered the station manager the option of losing the 1,500 gallons of remaining fuel through confiscation or the posting of a $1,000 cash bond. The $1,000 figure was based on station records which indicated that over $1,000 of the substandard fuel had been sold.

   
   

3. Respondent's station manager elected to post the $1,000 cash bond and retain the substandard fuel, which was subsequently pumped into another tank and sold as leaded regular gasoline.

   CONCLUSIONS OF LAW

   
   

4. Section 525.06 Florida Statutes (1979), provides in part:

   
   

   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 be illegal, and shall be subject to confiscation and sale

   by order of the department. . . .

   
   

5. Rule 5F-2.01(1)(j), Florida Administrative Code, provides that unleaded gasoline "may not contain more than 0.05 gram of lead per gallon." Since the fuel discussed herein exceed exceeded this standard, it was subject to stop-sale order and confiscation. In accepting the bonding arrangement, Respondent avoided the greater financial loss associated with confiscation, and is now bound by this agreement.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That Petitioner enter its order declaring forfeiture of Respondent's $1,000 bond posted in lieu of confiscation of substandard gasoline.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of October, 1980.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

M. H. McNeilly, President Saveway Oil, Inc.

2605 N. 50th Street Tampa, Florida 33619

John Whitton, Chief Gasoline and Oil Section Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 80-001601

Orders for Case No: 80-001601