STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2831

) EMMETT C. WEVER, D/B/A ORMOND ) MALL 66 SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the City Hall Auditorium, 22 South Beach Street, Ormond Beach, Florida, on December 14, 1981.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

General Counsel Florida Department of

Agriculture and Consumer Services Mayo Building

Tallahassee, Florida 32301

For Respondent: Emmett C. Wever

1204 Ocean Shore Boulevard Ormond Beach, Florida 32074

ISSUE

The issue here presented concerns the alleged violation of Rule Subsection 5F-2.01(1)(j) , Florida Administrative Code, related to allowable amounts of lead per gallon in gasoline which is dispensed under the distinctive name "Unleaded Gasoline." This alleged violation of the Rule potentially subjects the Respondent to the penalty set forth in Section 525.06, Florida Statutes (1980).

The particular facts of this allegation are that on September 15, 1981, a sample of gasoline from the pump at the Respondent's station marked "Unleaded Premium Gasoline" was extracted and a test conducted revealing .31 grams per gallon of lead content and a further test was conducted on September 25, 1981, at the same station and pump revealing .23 grams of lead per gallon, in violation of the maximum allowable .05 grams per gallon.

FINDINGS OF FACT 1/

1. This case was presented for hearing based upon the request for a formal Subsection 120.57(1), Florida Statutes, hearing, made by the Respondent, Emmett

   C. Wever. The matters to be considered are as set forth in the Issues provision of this Recommended Order. The hearing was conducted on December 14, 1981, in keeping with the Respondent's request.

   
   

2. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State Government which has the obligation of gasoline and oil inspection pursuant to the provisions of Chapter 525, Florida Statutes. The Respondent is the proprietor of a station which dispenses gasoline, at 1204 Ocean Shore Boulevard, Ormond Beach, Florida.

   
   

3. On September 15, 1981, an employee of the Petitioner made a check of the unleaded premium gasoline pump from which the Respondent had been selling that product. The sample extracted was analyzed on September 22, 1981, and this analysis revealed a lead content in the sample of .31 grams of lead per gallon.

   
   

4. The results of that report were made known to the Petitioner's employee on September 25, 1981, and a further check of the aforementioned gasoline pump was made on that same date.

   
   

   Subsequent testing of that sample revealed .23 grams of lead per gallon.

   
   

5. In the face of these revelations of lead content in the gasoline, a Stop Sale Notice was given to the station owner. The effect of the Stop Sale Notice would allow the confiscation of gasoline remaining in the unleaded premium tank at the Respondent's station or in lieu of the posting of a bond, not to exceed $1,000.00. The Respondent elected to post a bond of $953.30 which was equal to the 657 gallons which had been dispensed from the subject gas pump during the questioned period. The Respondent was allowed to sell the remaining 1,046 gallons in the tank, which was associated with the gasoline pump, as regular gasoline.

   
   

6. Excessive lead, when introduced into those automobiles which are required to use unleaded gasoline, can damage the catalytic converter, and it is estimated that this damage would occur after burning approximately five (5) tanks of contaminated unleaded gasoline. In addition, lead in the fuel tends to foul the engine.

   
   

7. There was no showing in the course of the hearing that the Respondent had knowledge of the lead content discovered on September 15 and 25, 1981, which amounts were in excess of the standards set forth in Rule Subsection 5F- 2.01(1)(j), Florida Administrative Code, calling for no more than .05 grams of lead per gallon in gasoline sold as unleaded fuel.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Rule Subsection 5F-2.01(1)(j), Florida Administrative Code, establishes that unleaded fuel offered for sale in Florida, may not contain more than .05 grams of lead per gallon. In the instance of the samples that the Petitioner took on September 15 and 25, 1981, the tests revealed .31 and .23 grams her gallon respectively in the pump from which the Petitioner had been selling

   unleaded fuel. These amounts of lead per gallon were in excess of the standards set forth in the Rule and in keeping with the provisions of Section 525.06, Florida Statutes (1980), the Petitioner was allowed to confiscate the amount of gasoline remaining in the tank on September 25, 1981, or accept a refundable bond in cash or certified check in the amount of the value of the product subject to confiscation or equal to the retail value of the product sold in the critical period, not to exceed $1,000.00. In this instance, the Petitioner accented a bond in the amount of $953.30, equal to the retail value of the 657 gallons of gasoline dispensed in the critical period.

   
   

10. The Petitioner, in law, was allowed to require the bond amount and there remains only the question of whether any portion of that bond amount should be refunded in this given instance. In that regard, the Petitioner had no specific recommendation as to the proper amount of fine through the bond process. The Petitioner, through counsel, did indicate that there were cases in which the entire bond amount was not claimed. Under the present facts, and in particular, the facts indicating that the Respondent was without knowledge of the contamination; the Petitioner's neutral position on the proper amount of fine and the fact that there was no showing of damage to consumers' automobiles through the introduction of this high lead content gasoline into automobiles using catalytic converters, it is

RECOMMENDED:

That a final order be entered finding the Respondent in violation of Rule Subsection 5F-2.01(1)(j), Florida Administrative Code, and subject to the penalties set forth in Section 525.06, Florida Statutes (1980), and taking

$400.00 of the bond amount posted and refunding $553.30 of that bond amount posted to the Respondent.

DONE and ENTERED this 18th day of December, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS

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 18th day of December, 1981.

ENDNOTE

1/ The facts as reported herein are based upon stipulations of fact entered into between the parties, except for those facts related to the effect of the introduction of lead particles into the catalytic converter of automobiles.

COPIES FURNISHED:

Robert A. Chastain, Esquire Emmett C. Wever

General Counsel 1204 Ocean Shore Boulevard

Florida Department of Ormond Beach, Florida 32074 Agriculture and Consumer Services

The Mayo Building Tallahassee, Florida 32301

Docket for Case No: 81-002831

Orders for Case No: 81-002831