STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2590

) CIGAR CITY AUTO/TRUCK PLAZA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on December 21, 1981, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

General Counsel Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

For Respondent: Gerald Taylor, Esquire

3224 Bay to Bay Boulevard Tampa, Florida 33609

The issue for determination in this case is whether the Respondent, Cigar City Auto/Truck Plaza is entitled to the return of a $1,000 cash bond posted to obtain the release of approximately 1,500 gallons of gasoline taken from an unleaded pump at the Cigar City Auto/Truck Plaza located at far 6804 East Hillsborough Avenue, in Tampa, Florida, on September 16, 1981, and which was allegedly contaminated by leaded gasoline. At the administrative hearing the Respondent did not dispute the allegation that the gasoline was illegal, but rather that Cigar City was entitled to a partial refund because the contamination was caused by a person not associated with Cigar City and remedial steps have been taken so that the problem will not reoccur.

At the final hearing, Petitioner's Composite Exhibit 1(a)-(d) was admitted into evidence. Robert Lawson, General Manager of Cigar City, testified on behalf of the Respondent.

FINDINGS OF FACT

1. On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline.

   
   

2. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981.

   
   

3. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 gram of lead per gallon and, therefore, violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon.

   
   

4. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular.

   
   

5. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur.

   
   

6. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. Section 525.06, Florida Statutes, 1980 Supplement, provides in pertinent part as follows:

   
   

   All oils enumerated and designated in this chapter that are used or intended to be used for power . . . when sold under a

   distinctive name that shall fall below the standard fixed by the Department . . . are declared to be illegal and shall be subject to confiscation and sale . . .Instead of confiscation, a refundable bond . . . in the amount of the value of the product subject to confiscation may be accepted by the Department, pending legal disposition.

   The amount of the bond shall be limited to

   $1,000 . . .

9. Pursuant to Rule 5F-2.01(1)(j), Florida Administrative Code, the amount of lead contained in unleaded gasoline shall not exceed 0.05 gram of lead per gallon as established by lead ASTM standards - method 2599, 3229 or 3237.

   
   

10. The facts establish and the Respondent did not dispute that the gasoline in question exceeded the ASTM standards set forth in Rule 5F- 2.01(1)(j), Florida Administrative Code, and therefore, was illegally offered for sale to the public. Neither the statute nor rule require the Department to prove that a vendor intended to sell illegal leaded gasoline as unleaded or had knowledge of how the gasoline was contaminated in order to prove a violation.

    
    

11. However, in this case it appears that the Respondent has made good faith efforts to ascertain how the contamination occurred and insure that the problem will not repeat itself. This is the first action taken against the station and no testimony was presented that any injury to a third party occurred as a result of this isolated incident.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted.

DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982.

COPIES FURNISHED:

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609

Docket for Case No: 81-002590

Orders for Case No: 81-002590