STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3102

) ROMACO, INC., d/b/a MAJIK MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on January 15, 1982, in Panama City, Florida. The following appearances here entered:

APPEARANCES

For Petitioner: Leslie McLeod, Jr., Esquire

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32301

For Respondent: Jack G. Williams, Esquire

Post Office Box 426

Panama City, Florida 32401 PROCEDURAL BACKGROUND

These proceedings began on October 30, 1981 when Petitioner issued a stop- sale notice to Respondent which ordered the Respondent to immediately stop the sale of allegedly contaminated gasoline in Lynn Haven, Florida. On that same date the Respondent posted a bond in the amount of $1,000. As a result of that posting Petitioner issued a notice which released the allegedly contaminated gasoline. By a letter dated November 9, 1981 Respondent requested an administrative hearing to determine whether or not the gasoline which was the subject of the stop-sale notice was actually contaminated. On December 3, 1981 the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. At the final hearing Petitioner presented as its witnesses, Mr. John C. Whitton, Mr.

Haywood Nixon and Mr. Patrick Flannigan. Exhibits 1, 2 and 3 were offered by Petitioner and were received into evidence. Respondent offered no exhibits or witnesses. At the conclusion of the hearing the parties were informed of their right to file proposed findings of fact and proposed recommended orders.

Neither party wishes to do so.

FINDINGS OF FACT

1. Respondents operating as a Majik Market, sells gasoline at 415 West Tennessee Avenue, Lynn Haven, Florida. On October 30, 1981 Mr. Haywood Nixon who is a petroleum inspector with the Department of Agriculture and Consumer Services took a sample of regular leaded gasoline from Respondent's fuel pump designated "WAY 1232" at the above location. The sample was deposited in a glass bottle and delivered to Mr. Patrick Flannigan who is a chemist for the Petitioner. On October 30, 1981 Mr. Flannigan performed certain prescribed tests on the gasoline sample.

   
   

2. The final boiling point temperature of the sample was found by Mr. Flannigan to be 484 degrees Fahrenheit. This figure does not comply with the standards set out in Section 5F-2.01(1)(c)4. Florida Administrative Code which provides that the end point (final boiling point) of leaded gasoline shall not exceed 446 degrees Fahrenheit. The high end boiling point reading of the sample indicates that it was probably contaminated by another fuel such as diesel oil. The exact nature of the contaminant is however impossible to determine from the tests made.

   
   

3. After receiving the results of the analysis made-by Mr. Flannigan Mr. Nixon returned to the Majik Market and issued a stop-sale notice. This notice prohibited the sale of the 4,435 gallons of contaminated gasoline remaining in Respondent's storage tank. As a result of that stop-sale notice Respondent posted a bond in the amount of $1,000. Subsequently the Petitioner issued a release notice allowing the contaminated gasoline to be removed from the State of Florida and disposed of by Respondent. Prior to the issuance of the stop- sale notice Respondent had sold 2063 gallons of gasoline from that tank since the last fuel delivery.

   
   

4. There is no indication that the contamination discovered by the Department's test was the result of any willful or deliberate act by Respondent of Respondent's agents.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), Florida Statutes (1981).

   
   

6. Chapter 525, Florida Statutes (1981) provides that gasoline sold in the State of Florida shall be inspected by the Department of Agriculture and Consumer Services. Specifically, Section 525.06 requires:

All oils enumerated and designated in this chapter that are used or intended to be used for power, illuminating, cooking, or heating purposes, 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.

Instead of confiscation, a refundable bond in cash or by certified check in the amount of the value of the product subject to

confiscation may be accepted by the department, pending legal disposition.

The amount of this bond shall be limited to $1,000. If any of the product has been

sold to retail customers, the department is authorized to make an assessment equal to the retail value of the product sold, not to exceed $1,000.

1. Pursuant to the authority of Chapter 525, Florida Statutes, the Department has promulgated Section 5F-2.O1, Florida Administrative Code which requires:

   
   

   1. GASOLINE. The following specifi cations apply generally to all gasolines offered for sale in Florida. Specific variations or exemptions may be made for gasolines designated for special equipment or service, and for which it can be demonstrated that the distribution will be restricted to such uses.

      * * *

      (c) Distillation Range--ASTM Method D86.

      * * *

      (4) The End Point shall not exceed 437 degrees far (225 degrees Celsius) for unleaded gasoline and 446 degrees far

      (230 degrees Celsius) for leaded gasoline.

      
      

2. The preponderance of the evidence establishes that Respondent both sold and offered for sale regular leaded gasoline on October 30, 1981, which did not meet the standards for final boiling point under Section 5F-2.01. Northrop Oil Company v. Department of Agriculture and Consumer Services, 3 FALR 1727A (Florida, Final Order, Department of Agriculture and Consumer Services August 12, 1981). No evidence was presented of prior violations of Chapter 525 by Respondent. In argument at the close of the final hearing Respondent represented through counsel that it will begin semi-annual testing for contamination of all its gasoline offered for sale to the public and will monthly check the gasoline lead content. These foregoing factors weigh in favor of mitigating the assessment made against Respondent for its violation of Section 525.06, Florida Statutes (1981). Sunmark Industries v. Department of Agriculture and Consumer Services, 3 FALR 415A (Florida Final Order, Department of Agriculture and Consumer Services February 12, 1981).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department remit to the Respondent $500 of the $1,000 bond required to be posted in lieu of confiscation of 4,435 gallons of substandard gasoline.

DONE and RECOMMENDED this 20th day of January, 1982, in Tallahassee, Florida.

MICHAEL P. DODSON

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 20th day of January, 1982.

COPIES FURNISHED:

Leslie McLeod, Jr., Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32301

Jack G. Williams, Esquire Post Office Box 426

Panama City, Florida 32401

Docket for Case No: 81-003102

Orders for Case No: 81-003102