STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTHROP OIL COMPANY, INC., AND ) UNION SERVICE STATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1423

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 14, 1981, in Pensacola, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon entry of a Stop Sale Notice by the Department of, Agriculture and Consumer Services on unleaded gasoline sold by Union Service Station No. 166191 located on US Highway 29 North in Century, Florida, because it contained a contaminant. Northrop Oil Company, Inc., who was responsible for the fuel in question, paid a $1,000 bond in lieu of confiscation of the fuel and requested an administrative hearing.

APPEARANCES

For Petitioner: James W. Ash, President, pro se

Northrop Oil Company, Inc. c/o Union Service Station US Highway 29 North Century, Florida 32535

For Respondent: Leslie McLeod, Jr., Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Prior to commencement of the hearing the parties entered into a stipulation, hereinafter set out as Findings of Fact Nos. 1 through 7, which was read into the record and acknowledged by both parties. Testimony was then received from Mr. Ash, Haywood Nixon, John Gardner and John Whitton.

In summary, Petitioner admitted that the test results indicated a contaminant but asserted that it was most probably from contaminants remaining in the bottles used to take the samples. The Department's witness, Mr. Whitton, testified regarding tests which the Department had run to determine the effects of residue from other samples in the sample bottles.

The Department requested that the Hearing officer officially notice Chapter 525, Florida Statutes, and Chapter 5F-2, Florida Administrative Code. The Hearing Officer advised Mr. Ash of his intention to take official notice of the statutes and rules above and of Mr. Ash's right to respond within ten days.

ISSUE

Are test results skewed by the use of sample bottles containing residue from earlier samples?

FINDINGS OF FACT

1. The Department of Agriculture and Consumer Services took unleaded gasoline samples from the Union Service Station No. 166191 located on US Highway

   29 North in Century, Florida. The petroleum products provided this station were supplied by Northrop Oil Company, Inc., whose president is James W. Ash.

   
   

2. The Department analyzed the samples taken in its mobile laboratory.

   
   

3. The unleaded gasoline samples were found to have an elevated End Point,

i.e. the maximum boiling point allowed by the rules of the Department for unleaded gasoline, which is 437 degrees Fahrenheit. Sample No. 1 had an End Point of 482 degrees Fahrenheit, and Sample No. 2 had an End Point of 464 degrees Fahrenheit.

4 The elevated End Point means that the samples contained contaminants in excess of the amounts permitted by the Department's rules.

1. A Stop Sale Notice was issued by the Department.

   
   

2. A bond of $1,000 was paid by Petitioner in lieu of confiscation of the remaining unleaded gasoline and as a precedent for the formal hearing.

   
   

3. Petitioner requested and received a formal hearing.

   
   

4. It was agreed that the contaminant did not contain lead and was most probably diesel fuel or kerosene.

   
   

5. Mr. Ash testified concerning deliveries to the station in question and other deliveries made by the same truck. On the Monday the samples were taken, the gasoline transport delivered unleaded gasoline to Davis' Grocery, the Union Service Station, and Ross', in that order. The Department also tested the unleaded gasoline at Davis' and Ross' but found no contaminants in their unleaded gasoline tanks. On the preceding Friday, the truck delivered unleaded gasoline to the Union Service Station and two Alabama stations. The Alabama authorities checked the unleaded gasoline at those stations and found no contaminants; however, Mr. Ash did not know how much additional gasoline had been delivered to those stations before their testing.

   
   

6. The Union Service Station in question keeps its unleaded gasoline tanks locked, and its diesel fuel tank is located on the opposite side of the station. Petitioner uses separate trucks to deliver diesel fuel and gasoline and does not mix loads.

   
   

7. It would have been highly unlikely that the diesel truck driver and the station's operators would have permitted the introduction of diesel fuel into the unleaded gasoline storage tanks.

8. The percentage of contaminant necessary to raise the End Point the amount it was raised in this instance would have been three to five percent of the total volume.

   
   

9. The sample bottles used by the Department are approximately the size of a quart milk bottle. The inspector separates the bottles he uses to take diesel fuel samples from those he uses to take gasoline samples. He stores the bottles upside dawn. This was the procedure he followed in taking the samples involved in this case.

   
   

10. Tests conducted by the Department to determine the effects of residue in sample bottles indicated that the residue from earlier samples is an insignificant factor in elevating the End Point test results. An inverted sample bottle could not retain the three-to-five percent of the bottle's total volume necessary to raise the test, results of the samples in question approximately 40 degrees Fahrenheit.

    
    

11. The contaminant was not introduced into the samples from the bottles used to take the samples.

    
    

12. The Department calculated that 570 gallons of contaminated unleaded gasoline were sold at $1.40 per gallon.

    
    

    CONCLUSIONS OF LAW

    
    

13. The provisions of Chapter 525, Florida Statutes, authorize the Department of Agriculture and Consumer Services to test petroleum products sold within the state, and Section 525.14, Florida Statutes, authorizes the Department to adopt rules and regulations fixing standards for such products. Section 525.06, Florida Statutes, authorizes the confiscation of products which are below the standards set by the Department. Rule 5F-2.01(1)(c)4, Florida Administrative Code, provides that the End Point of unleaded gasoline shall not exceed 437 degrees Fahrenheit (225 degrees Celsius). The tests performed by the Department showed that the samples of unleaded gasoline in question had End Points of 482 degrees Fahrenheit and 464 degrees Fahrenheit respectively.

    
    

14. Petitioner's only defense was that given the good test results from the two stations to which unleaded gasoline was delivered before and after the delivery to the Union Service Station on Monday, it was unlikely the fuel was contaminated when delivered, and the contaminant was more probably introduced from the sample bottles. Given the testimony concerning the percentage of contaminant necessary to raise the End Point 40 degrees Fahrenheit, it is improbable, if not impossible, for the contaminant to have come from the sample bottles.

    
    

15. If one assumes that delivery drivers and station operators exercised due diligence and did not introduce diesel fuel into both unleaded gasoline tanks, the contaminant was not introduced on Monday but on the preceding Friday. The Friday delivery went to the Union Service Station and to two Alabama stations. If the contaminant was introduced from bulk storage or in the loading of the transport, the exercise of due care by the operators of the Union Service Station would not have prevented its introduction into the unleaded gasoline storage tanks.

16. Petitioner correctly advised the Alabama authorities and asked them to check the unleaded gasoline at the two Alabama stations. However, by the time these stations were checked additional "pure" unleaded gasoline had been introduced into their storage tanks. Dependent upon how much contaminated unleaded gasoline was pumped out and how much "pure" product was introduced, the later tests would not have revealed a problem. The laboratory personnel testified that after two refills of bulk storage a contaminant would be diluted sufficiently to test within normal limits.

    
    

17. The Department's data indicated the Union Service Station sold 570 gallons of the contaminated unleaded gasoline at $1.40 per gallon. The Department permits the payment of the value of the amount sold in lieu of the forfeiture of the $1,000 bond by Petitioner. Upon payment of $722.84 to the Department, Petitioner would be entitled to receive his $1,000 bond back.

    
    

18. The fuel in question was contaminated and did not meet minimum standards established by the Department. It is subject to confiscation; however, Petitioner may avoid confiscation and obtain refund of his $1,000 bond by payment of $722.84 to the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends release of the contaminated fuel in question and return of the $1,000 bond by the Department of Agriculture and Consumer Services upon payment by Petitioner to the Department of $722.84.

DONE and ORDERED this 30th day of July, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981.

COPIES FURNISHED:

Mr. James W. Ash, President Northrop Oil Company, Inc. c/o Union Service Station US Highway 29 North Century, Florida 32535

Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services

Mayo Building, Room 513 Tallahassee, Florida 32301

Doyle Conner, Commissioner Department of Agriculture and consumer Services

Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 81-001423

Orders for Case No: 81-001423