C. PENNY COMPANY GAS STATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, in Clearwater, Florida, on May 21, 1981.
APPEARANCES
For Petitioner: Robert A. Chastain, Esquire
Mayo Building, Room 513 Tallahassee, Florida 32301
For Respondent: Donald E. Ford
J. C. Penny Company, Inc.
27 Sunshine Mall Clearwater, Florida 33510
On February 4, 1981, the Department of Agriculture and Consumer Services stop-saled 4,222 gallons of gasoline of Respondent because the gasoline allegedly contained an excessive amount of lead. The gasoline was subsequently released when the Respondent's representative, Mr. John F. Phelps, posted a bond in the amount of $1,000.
The Respondent requested a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, to contest the forfeiture of the $1,000 bond required by the Department. The matter was forwarded to the Division of Administrative Hearings on March 16, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated April 16, 1981, the final hearing was scheduled for May 21, 1981, in Clearwater, Florida.
At the final hearing, Petitioner called James C. Gillespie, Charles M. Morris and Ben Bowen as its witnesses and offered petitioner's Composite Exhibit 1, which was received into evidence. The Respondent called Donald E. Ford, auto center manager, as its witness.
The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their right to do so.
The issue for determination herein is whether Respondent violated the standards for gasoline offered for sale, and if so, was subject to the confiscation of the product and the posting of a $1,000 bond prior to the product's release for sale.
Based on the evidence, the following facts are determined:
FINDINGS OF FACT
The Respondent, J. C. Penny Company, Inc., operates an automobile service center at its store in the Sunshine Mall in Clearwater, Florida. The service center has a gas station which sells gasoline products to the general public.
On or about February 4, 1981, a petroleum inspector of the Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of unleaded gasoline from the Respondent's gasoline station at the Sunshine Mall. This sample was tested in the Tallahassee laboratory and was found to contain lead contents in the amount of 0.60 gram 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. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on February 5, 1981 (Petitioner's Exhibit 1)
The station manager was informed that he had several alternatives, including confiscation of the product, with the Respondent posting a bond in the amount of $1,000 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 February 5, 1981 (Petitioner's Exhibit 1). Petitioner received a bond in the amount of $1,000 from Respondent and this amount was deposited into the Gasoline Trust Fund.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.
Section 525.06, Florida Statutes, provides in part:
All oils enumerated and designated in this chapter that are used or intended to be used for power, il- luminating, cooking or heating pur- poses, 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.
Table 1 of Rule 5F-2.01(3)(j), Florida Administrative Code, provides that unleaded gasoline "may not contain more than 0.05 gram of lead per gallon."
There is no dispute that the confiscated gasoline failed to meet the standard set forth above. Therefore, Petitioner had the requisite authority and duty to confiscate the unsold gasoline. In lieu of this, Respondent posted the bond in question and was therefore allowed to sell the gasoline remaining in the tank as regular gasoline.
Respondent's actions were not intentional, and were believed to be the result of an error by the driver of the gasoline delivery truck who loaded leaded gasoline into the wrong tank. Respondent intends to more closely supervise this activity in the future to avoid any further recurrence of the problem. While this is not an excuse for the Respondent's actions which resulted in the excess lead being added to the tank, it is a matter in mitigation of the forfeiture to be extracted from Respondent.
