STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3218

)

PAY-LESS OIL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 9, 1982, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

General Counsel Department of Agriculture

and Consumer Services

513 Mayo Building Tallahassee, Florida 32301

For Respondent: Mark Ordway, Supervisor

Pay-Less Oil Company, Inc. 6205 North Dale Mabry Highway Tampa, Florida 33614

ISSUE

The issue here presented concerns an alleged violation of Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code, related to the permissible ten percent (10 percent) evaporated temperature for which gasoline shall not exceed 140F, and penalties to be imposed for such violations, in keeping with Section 525.06, Florida Statutes (1980), and Rule Subsection

5F-2.01(1)(c)1, Florida Administrative Code.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

2. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980).

   
   

3. The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 3411 U.S. 19 North, Pasco County, Tarpon Springs, Florida.

   
   

4. On November 23, 1981, a sample of the petroleum product, super unleaded gasoline (which was offered for sale) was taken from the Respondent's facility as indicated above. A subsequent analysis of that product by Petitioner's mobile laboratory revealed that the ten percent (10 percent) evaporated temperature was 153F. This reading exceeded the ten percent (10 percent) evaporated temperature of 140F as set forth in Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code. Petitioner's inspector, Jamie Gillespie, advised Respondent's agent that the premium unleaded gasoline was illegal due to its "stale" condition and the Respondent was given an option of either confiscation of the product or posting of a bond. The product is presently under a Stop Sale Notice and is under seal. (Petitioner's Composite Exhibit No. 1.)

   
   

5. A subsequent analysis by Petitioner's laboratory in Tallahassee revealed that the evaporation level of the product was found to be approximately 163F. Ben Bowen, Petitioner's Assistant Bureau Chief in charge of petroleum inspection, indicates that the discrepancy in the evaporation levels as analyzed by the two laboratories was most probably due to the seal which was on the product and the approximate seven (7) day delay in the transfer of the product from Tarpon Springs to the laboratory in Tallahassee.

   
   

6. Respondent's supervisor, Mark Ordway, 1/ was shown how the product could possibly become stale due to a "venting" problem from the roof of the storage tank where the product was stored.

   
   

7. Sam Puleo, a lab technologist employed in Petitioner's mobile laboratory, analyzed the sample of the product taken from Respondent's facility. According to Mr. Puleo, "stale" products such as that taken from Respondent's tanks would make it difficult to start an automobile engine.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner is derived from Chapter 525, Florida Statutes, and Rule Chapter 5F-2, Florida Administrative Code.

    
    

11. Chapter 5F-2.01(1)(c)1, Florida Administrative Code, makes it a violation to offer for sale in Florida gasoline which the ten percent (10 percent) evaporated temperature exceeds 140F. The Respondent offered, and in fact sold, super unleaded gasoline with a ten percent (10 percent) evaporated temperature which exceeded 140F. Accordingly, Respondent violated Rule Chapter 5F-2.01(1)(c)1, Florida Administrative Code.

12. This violation subjects the Respondent to the confiscation of the product in accordance with the penalty provisions set forth in Rule Subsection 5F-2.02, Florida Administrative Code.

    
    

13. Respondent's supervisor, Mark Ordway, related that it was difficult for him to determine how the subject product was tested and analyzed to be "stale" inasmuch as he was of the opinion that the storage facility was adequate and that Respondent had not engaged in any negligence toward the sale of this product. However, Respondent recognizes that a violation herein is one which does not require proof of "intent" in order to be found responsible for such violation.

Based on a full consideration of the facts and conclusions of law herein, it is

RECOMMENDED:

That a final order be entered finding the Respondent in violation of Rule Section 5F-2.01(1)(c)1, Florida Administrative Code, which subjects Respondent to the penalties set forth in Section 525.06, Florida Statutes (1980).

Accordingly, it is, thus, recommended that the Respondent be ordered to pay a fine of $500.00 and the subject product not be offered for sale, but rather be used, if at all, in Respondent's own vehicles.

RECOMMENDED this 15th day of April, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1982.

ENDNOTE

1/ Supervisor Ordway, based upon inquiry by the undersigned, appeared qualified to represent the Respondent herein. In addition, Supervisor Ordway indicated that he was authorized to represent Respondent in this proceeding.

COPIES FURNISHED:

Robert A. Chastain, Esquire Department of Agriculture and Consumer Services

513 Mayo Building Tallahassee, Florida 32301

Mark Ordway, Supervisor Pay-Less Oil Company, Inc.

6205 North Dale Mabry Highway Tampa, Florida 33614

Docket for Case No: 81-003218

Orders for Case No: 81-003218