STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-2035

)

PINNER OIL CO., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted in Room 212, Carlton Building, Tallahassee, Florida. The hearing commenced at 10:30 a.m., December 23, 1980.

APPEARANCES

For Petitioner: Leselie McCloud, Esquire

Department of Agriculture and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 32301

For Respondent: Mr. Arthur Pinner

Pinner Oil Company Post Office Box JJ

Cross City, Florida 32628

ISSUE

The question presented here concerns the Petitioner, State of Florida, Department of Agriculture and Consumer Services' Stop Sale Notice placed against Respondent, Pinner Oil Company under the alleged authority of Section 525.06, Florida Statutes (1980), by the process of requiring a refundable bond in the amount of $471.34, pending the outcome of this dispute in which it is contended that the Respondent supplied gasoline for sale which failed to comply with Rule Subsection 5F-2.01(1)(j), Florida Administrative Code, dealing with the allowed lead content in gasoline.

FINDINGS OF FACT

1. The Petitioner, State of Florida, Department of Agriculture and Consumer Services is an agency of government which has, among other responsibilities, the requirement to establish and enforce standards related to maximum allowable lead content in unleaded gasoline offered for sale to the general public. This regulation is designed to avoid the destruction of

   catalytic devices found in the exhaust systems of certain cars, in which the destruction of a catalyst would bring about problems, with the exhaust system causing its replacement and more importantly, lead to adverse effects on the environment due to an increase in undesired emission from the exhaust system.

   
   

2. The Respondent, Pinner Oil Company of Cross City, Florida, is a jobber which supplies gasoline to retail outlets who in turn sales the gasoline to members of the motoring public.

   
   

3. The facts reveal that on October 6, 1980, an official with the Petitioner made a routine inspection of the unleaded gasoline reservoir at the

   B. F. Goodrich-Texaco at 210 Rogers Boulevard, Chiefland, Florida, a customer of Pinner Oil Company. This gasoline was subsequently analyzed and on October 7, 1989, a Stop Sale Notice was served based upon a determination that the unleaded gasoline found in the reservoir at that station contained more than 0.05 grams of lead per U.S. gallon.

   
   

4. The gasoline in question was provided to the B. F. Goodrich outlet by an employee of Pinner Oil Company as a part of his duties with the Respondent.

   
   

5. In lieu of the total confiscation of the gasoline found in the reservoir tank at the station In question, the Respondent was allowed to post a refundable bond in the amount of $471.34 which represented the price for the number of gallons sold at a retail price since the time of the prior delivery to that station.

   
   

6. (By Stipulation entered into between the parties, it was agreed that a finding of fact would be made to the effect that the Respondent, during the course of the last two years, had not been cited for a violation of the Florida Statutes pertaining to contaminated fuels.)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

8. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent supplied gasoline to its customer at 210 Rogers Boulevard, Chiefland, Florida, i.e. the B. F. Goodrich-Texaco, and that gasoline sold as unleaded contained more than 0.05 grams of lead per gallon within the meaning of Rule Subsection 5F-2.01(1)(j), Florida Administrative Code. Therefore, under the authority of Section 525.06, Florida Statutes (1980), the Petitioner was entitled to accept a refundable bond equal to the retail price of the unleaded gasoline sold to the general public since the time of the last delivery to that station. Furthermore, it having been determined that the gasoline as tested exceeded the standards for lead content in an unleaded fuel, the Petitioner is entitled to collect the bond proceeds through the general inspection trust fund of said agency. This result must pertain in view of the fact that the prior good record of the Respondent will not allow a reduction of this penalty, when considered in the face of the statutory requirements.

In summary, having considered the facts set forth and the conclusions of law as reached, it is,

RECOMMENDED:

That the Petitioner accept into the general inspection trust fund $471.34, that amount being constituted of the bond proceeds which have been posted by the Respondent on this occasion.

DONE and ENTERED this 20th day of January, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 20th day of January, 1981.

COPIES FURNISHED:

Leselie McCloud, Esquire Department of Agriculture and Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32301

Mr. Arthur Pinner Pinner Oil Company Post Office Box JJ

Cross City, Florida 32628

Docket for Case No: 80-002035

Orders for Case No: 80-002035