vs. ) CASE NO. 82-2146
Respondent. )
This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on November 29, 1982. The parties were represented by counsel:
For Petitioner: Robert A. Chastain, Esquire
In order to secure the release of certain gasoline that had been mixed with alcohol, respondent posted a thousand dollar ($1,000.00) bond and petitioner withdrew its stop sale notice. The issues are whether the gas-alcohol mix violated petitioner's "50 percent evaporated temperature" standard, Rule 5F- 2.O1(1)(c)(2), F.A.C., when impounded and what disposition to make of the bond respondent posted.
On July 14, 1982, Jimmy Haywood Nixon, an employee of petitioner, took samples of gasoline offered for sale at respondent's Beacon Store No. 7 in Milton, Florida, including a sample of regular gasoline mixed with alcohol, known as "regularhol." Pat Flanagan, a chemist employed by petitioner, performed various tests on the sample of regularhol, including ASTM method 86, and determined that the 50 percent evaporated distillation temperature of the mix as a whole was 150 F. His testimony to this effect was uncontroverted. When he learned the test results, Mr. Nixon locked the regularhol pump at respondent's store in Milton, only unlocking the pump to release the mixture when a thousand dollar bond was posted on July 16, 1982.
Respondent began mixing regular gasoline with ethanol and selling it as regularhol in 1978 at the same price as regular gasoline. Until recently, Mocar made less on regularhol sales than on sales of regular gasoline. It originally offered regularhol as its way of helping to reduce the national consumption of petroleum.
The Phillips' terminal in Pensacola was respondent's source of the regular gasoline it mixed to make regularhol. This gasoline reached Pensacola by barge, and petitioner's employees sampled and tested each barge's cargo. The
50 percent evaporated distillation temperature of the regular gas Mocar bought from Phillips varied over a range of more than 30 degrees Fahrenheit upwards from 180 F. Mixing ethanol with the gasoline lowered its distillation temperature, but until the batch sampled on July 14, 1982, Mocar's regularhol had passed the testing petitioner has regularly conducted.
CONCLUSIONS OF LAW
Although not specifically named in Chapter 525, Florida Statutes (1981)
, "regularhol," or regular gasoline mixed with ethanol, falls within the category of "gasoline, naphtha, kerosene, benzine, or other like products of petroleum under whatever name designated, used for illuminating, heating, cooling or power purposes," Section 525.01, Florida Statutes (1981), and is therefore subject to confiscation, if it is shown to "fall below the standard fixed by the Department of Agriculture and Consumer Services." Section 525.06, Florida Statutes (1981). Although petitioner's rules do not fix standards for regularhol as such, guidelines for "gasoline" do exist.
The sale of "gasohol" or unleaded gasoline mixed with ethanol is specifically authorized by statute:
Alcohol-blended fuels which contain 90 percent unleaded gasoline and 10 percent ethyl alcohol of a minimum of 198 proof and a maximum 50 parts per million of acetic acid, commonly known as "gasohol," may be sold at retail service stations for use in motor vehicles, as long as the gasoline component complies with current state specifications, until the American Society for Testing and Materials approves specifications for gasohol. Section 526.06, Florida Statutes (1981) (emphasis supplied.)
There is no such specific statutory authorization for the sale of regular gasoline blended with alcohol, nor is there any statutory basis for separating regular gasoline from the alcohol with which it is blended, before testing.
Compare Department of Agriculture and Consumer Services v. Delta Oil Co., No. 82-2131 (DOAH, Recommended Order entered December 29, 1982).
"Regularhol" must conform to the minimum standards prescribed for "all gasolines offered for sale in Florida." Rules 5F-2.01(1), Florida Administrative Code. Among those standards is one pertaining to distillation range, which refers to "ASTM Method D 86," Rule 5F-2.01(1)(c), Florida Administrative Code, and requires:
The 50 percent evaporated temperature shall not be less than 170 F (77 C) and shall not exceed 240 F (116 C). Rule 5F-2.01(1) (c)(2), F.A.C.
The "regularhol" sampled at Beacon No. 7 had a 50 percent evaporation temperature of 150 F., twenty degrees less than the minimum allowed. For that
reason, respondent's "regularhol" is subject to confiscation and sale by order of the department." Section 525.06, Florida Statutes (1981).
In the present case, petitioner seeks not confiscation but retention of the thousand dollar bond posted by respondent, proceeding under Section 525.06, Florida Statutes (1981), which provides:
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 produce sold, not to exceed $1,000.
Petitioner has the burden of proof whether it proposes to confiscate, make an assessment or retain money posted as a bond. Such proceedings are closely analogous to disciplinary proceedings by state agencies against licensees.
Although there is no requirement to prove scienter or intent, Cf. Division of Pari-Mutual Wagering, Department of Business Regulation v. Caple, 362 So.2d 1350 (Fla. 1978), confiscation of private property or levying an administrative fine makes these cases, even more than license revocation cases, 'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla.
1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) reh. den. 1980).
At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent's regularhol was nonstandard as alleged in the stop sale notice. See Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1974); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). The alleged deviation from standards must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Petitioner has met its burden here; the rule and the evidence are clear.
The question remains as to how to dispose of the bond respondent has posted. Although the statute might be interpreted to authorize petitioner to retain the whole sum, a long line of cases reflects petitioner's consistent interpretation of the statute to allow the return of part of the bond to the owner of the nonstandard gasoline. E.g., Department of Agriculture and Consumer Services v. Big "S" Oil Co., No. 81-3217, 4 FALR 1319-A Final Order entered May 10, 1982); State of Florida Department of Agriculture and Consumer Services v. One Stop Oil Co., No. 82-342, 4 FALR 1320-A (Final Order entered April 30, 1982); Department of Agriculture and Consumer Services v. Romaco, Inc. d/b/a Majik Market, No. 82-3102, 4 FALR 818-A (Final Order entered February 24, 1982); State of Florida, Department of Agriculture and Consumer Services v. Emmett C. Wever d/b/a Ormond Mall 66 Service, No. 81-2831, 4 FALR 823-A (Final Order entered February 2, 1982). In construing the statute, deference should be given to the agency's consistent interpretation, in the circumstances of the present case.
Respondent has not been shown to be more blameworthy than any of the fuel owners involved in the cases cited above, each of whom regained part of the bond that had been posted.
That petitioner retain four hundred dollars ($400.00) and return six hundred dollars ($600.00) to the respondent.
DONE and ENTERED this 19th day of December, 1982, in Tallahassee, Florida.
ROBERT T. BENTON
Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1982.
Robert A. Chastain, Esquire Department of Agriculture and Consumer Services
The Honorable Doyle Conner Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32301
