Judges: WILLIAM B. THOMAS
Agency: Department of Agriculture and Consumer Services
Latest Update: Jul. 03, 1990
Summary: Respondent sold illegal fuel and made much more than $1000 on the sale before the confiscation. Petitioner is entitled to retain bond.
83-0414.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF AGRICULTURE and ) CONSUMER SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 83-414
)
K & S IMPORTS, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on April 26, 1983, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Robert A. Chastain, Esquire
General Counsel
Department of Agriculture and Consumer Services
Mayo Building
Tallahassee, Florida 32301
For Respondent: Mark Klein, President as a witness for K & S Imports, Inc.
K & S Imports, 3955 North Andrews Avenue
Inc. Fort Lauderdale, Florida 33309
On January 14, 1983, the Petitioner issued its stop-sale notice to K & S Imports, Inc., for retailing to the public gasoline which had an evaporation rate exceeding the allowable limit. The Respondent posted a bond in the amount of $1,000, which represented approximately 44 percent of the revenue derived from the sale of the product prior to the stop-sale order. By request dated January 28, 1983, the Respondent petitioned for a hearing to obtain a refund of the bond, and to determine if the stop-sale order was properly issued.
The Petitioner presented two witnesses, the inspector who drew the gasoline sample from the Respondent's pump and submitted it for testing, and the manager of the testing laboratory which performed the analysis of the gasoline sample.
One exhibit was offered and received in evidence.
The Respondent's president testified on behalf of the company after electing to proceed without legal counsel, and presented his secretary as a second witness. One exhibit was offered and received in evidence.
FINDINGS OF FACT
On January 13, 1983, an inspector from the Department of Agriculture and Consumer Services drew a sample of the gasoline in one of the pumps at the station of K & S Imports, Inc., in Fort Lauderdale, Florida, and submitted the sample for laboratory testing.
This test determined that the evaporation rate for the sample was too high, having a 10 percent evaporated temperature of 155 degrees, instead of less than the allowable 140 degrees.
Based on these test results, the Petitioner issued its stop-sale order to the Respondent on January 14, 1983.
The tested sample came from a tank containing Cam 2 racing fuel. This is a special product distributed by Sun Oil Company, and it is not generally available to the public at gasoline stations.
Cam 2 racing fuel performs well in engines designed for racing because racing cars often are pushed off in order to start the engines. However, the high evaporation rate of this fuel lessens the starting power of ordinary engines.
The racing fuel tested at the Respondent's station came from a pump which was in the same location as the pumps containing other gasolines for sale to the public, and there was no obvious identification on the pump notifying purchasers that the product was a racing fuel not generally suitable for use in standard-use cars.
Subsequent to the issuance of the stop-sale order, Sun Oil Company delivered another load of product, and added to the subject tank enough gasoline with a lower evaporation temperature to bring the sample at the pump down to an acceptable level.
During the two to three month period prior to the issuance of the stop- sale order on January 14, 1983, the Respondent had sold 645 gallons of the Cam 2 racing fuel at a price of $3.50 per gallon.
The Respondent contends that it informed the office of Consumer Services when it decided to market the Cam 2 fuel, and was advised that this fuel could be sold if the pump dispensing it was separated from other pumps, and if this pump was clearly marked to show that the fuel therein was sold as racing fuel not generally suitable for use in ordinary engines. However, there is not sufficient credible evidence to support a finding of fact that this instruction was implemented.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of Agriculture and Consumer Services is empowered to collect and test samples of gasoline offered for sale in Florida. Section 525.02, Florida Statutes.
Pursuant to Section 525.06, Florida Statutes, gasoline that tests below the standard fixed by the Department of Agriculture and Consumer Services is illegal, and subject to confiscation and sale by the Department. Section
525.14, Florida Statutes, authorizes the Department to promulgate rules and regulations to fix the standards and specifications for gasoline and petroleum products.
Accordingly, Section 5F-2.01(1)(c)1. Florida Administrative Code, specifies as the allowable distillation range for gasoline, that the 10 percent evaporated temperature shall not exceed 140 degrees (60 degrees Centigrade).
Section 5F-2.01(1), Florida Administrative Code, provides that specific exemptions from the specifications may be made for gasolines designed for special equipment or service, when it can be demonstrated that the distribution will be restricted to such uses.
The racing fuel known as Cam 2 gasoline sold by the Respondent is not within the allowable distillation range set by the Department; thus, it is illegal, and may not be sold to the general public unless exempted as a fuel designed for special equipment or service. In order to obtain an exempt status, it must be demonstrated that the distribution of this racing fuel will be restricted to such a use. The evidence presented does not show that the Respondent segregated the Cam 2 fuel from other gasolines available for sale to the public, or that the pump was clearly marked to indicate to the public that it is a fuel designed for special equipment and service, and is not generally suitable for use in ordinary engines. Its confiscation by the Department was, therefore, proper.
The Respondent derived total revenue of $2,257.50 from the sale of the illegal fuel prior to its confiscation, and posted only a $1,000 bond. In these circumstances, the return of the bond is not appropriate.
RECOMMENDATION
From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the request of K & S Imports, Inc., for a return of the
$1,000 bond posted by it to secure the release of the fuel confiscated by the
Department, be DENIED.
THIS RECOMMENDED ORDER ENTERED this 24 day of May, 1983, in Tallahassee, Florida.
WILLIAM B. THOMAS
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 24 day of May, 1983.
COPIES FURNISHED:
Robert A. Chastain, Esquire General Counsel
Department of Agriculture and Consumer Services
Mayo Building
Tallahassee, Florida 32301
Mark Klein, President K & S Imports, Inc.
3955 North Andrews Avenue
Fort Lauderdale, Florida 33309
The Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Docket for Case No: 83-000414
Orders for Case No: 83-000414
| Issue Date |
Document |
Summary |
|
Jul. 06, 1983 |
Agency Final Order
|
|
|
May 24, 1983 |
Recommended Order
|
Respondent sold illegal fuel and made much more than $1000 on the sale before the confiscation. Petitioner is entitled to retain bond.
|
