STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

v. ) CASE NO. 84-1185

)

ZIPPY MART #145, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. See Section 120.57(1), Florida Statutes. This hearing was conducted on July 24, 1984, in Jacksonville, Florida. The parties have waived the opportunity to submit proposed recommended orders.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

Florida Department of Agriculture & Consumer Services

Mayo Building

Tallahassee, Florida 32301

For Respondent: Kenneth Drake

c/o The Convenience Store Group Post Office Box 95133

Raleigh, North Carolina 27625 ISSUES

Petitioner's efforts to take action against the operation of Zippy Mart Convenience Store #145 in Duval County, Florida, for offering alleged contaminated gasoline to the consuming public. See Section 525.06, Florida Statutes.

FINDINGS OF FACT

1. On March 14, 1984, an inspector for the Petitioner, examined gasoline storage facilities from which Respondent, Zippy Mart #145 was dispensing gasoline. This store is found at 12524 San Juan Boulevard, Jacksonville, Duval County, Florida, (This product that was being dispensed by the Respondent at this location was the subject of consumer complaint.)

   
   

2. Subsequent testing of the product known as Zippy Unleaded, as taken from the storage tank, revealed a 90 percent evaporated temperature of 376 degrees Fahrenheit and an end point of 493 degrees Fahrenheit. This was in

   keeping with laboratory procedures of the Petitioner. These matters were retested showing 90 percent evaporated temperature of 379 degrees and a 489 degree Fahrenheit end point.

   
   

3. In lieu of the confiscation of the three thousand gallons which remained in the subject tank, related to the unleaded fuel at the store location, Respondent was allowed to post a bond in the amount of a thousand dollars and to remove the product from the premises and place new product in the tank.

   
   

4. The reason for the values as shown in the sample pertaining to the 90 percent evaporated temperature and end point was due to the presence of diesel fuel within the tank designated for unleaded gasoline. The product as dispensed from that tank would cause engine damage to the automobile using that fuel, as evidenced by knocking and poor acceleration.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Petitioner is empowered to regulate Respondent on the subject of the sale of gasoline and other oil products. This authority is found in Chapter 525, Florida Statutes. Section 525.06, Florida Statutes, allows the Petitioner to establish standards for products sold under distinct names. The language of the provision states:

"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 he 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 pro- duct 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.

In furtherance of the responsibility for establishing standards, the Petitioner has enacted Rule SF.201, Florida Administrative Code. At Section 5F-2.01(1)(c)

3. Petitioner has established that the distillation range for unleaded gasoline related to the 90 percent evaporated temperature shall never exceed 365 degrees Fahrenheit. The testing relating to the sample from Respondent's unleaded gasoline, which had been offered for consumption by the public, showed a range

in the initial test and on the further retest in excess of 365 degrees Fahrenheit, thereby violating the established standard. In addition, in violation of Section 5F-2.01(1)(c) 4., Florida Administrative Code, the end point upon the initial test and further retest exceeded 437 degrees Fahrenheit.

7. In keeping with Section 525.06, Florida Statutes, Petitioner decided to accept a bond in lieu of confiscation and sale of the remaining product in the tank and in view of the contamination is entitled to keep some or all of the bond proceeds.

Upon consideration of the facts found in the conclusions of law reached it

is,

RECOMMENDED:

That a final order be entered which imposes a fine of $500.00 to be exacted

from the bond proceeds.

DONE and ENTERED this 27th day of July, 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 27th day of July, 1984.

COPIES FURNISHED:

Robert A. Chastain, Esquire Florida Department of Agriculture

& Consumer ServicesMayo Building Tallahassee, Florida 32301

Mr. Phillip W. Tomczyk Convenience Store Group

3109 Poplarwood Court, Suite 120 Raleigh, North Carolina 27625

Honorable Doyle A. Conner Commissioner of Agriculture

& Consumer Services The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-001185

Orders for Case No: 84-001185