STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORAL WAY MOBIL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2654

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

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 August 19, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Rafael E. Ruiz, pro se

c/o Coral Way Mobil 3201 Coral Way

Miami, Florida 3145

For Respondent: Clinton H. Coulter, Jr., Esquire Senior Attorney

Office of General Counsel Department of Agriculture and Consumer Services

Room 514, Mayo Building Tallahassee, Florida 32399-0800

ISSUE PRESENTED

The issue presented for decision herein is whether or not Petitioner's Antiknock (octane) Index number of its petroleum product was below the Index number displayed on its dispensing pumps.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compile herein, I make the following relevant factual finding.

1. Rafael Ruiz is the owner/operator of Coral Way Mobil, an automobile gasoline station, situated at 3201 Coral Way in Coral Gables, Florida. Ruiz has operated that station in excess of ten (10) years.

   
   

2. On or about May 13, 1987, Respondent, Department of Agriculture and Consumer Services, received a customer complaint alleging that the fuel obtained

   from Petitioner's station made her automobile engine ping. Respondent dispatched one of its petroleum inspectors to Petitioner's station at 3201 Coral Way on May 14, and obtained a sample of Respondent's unleaded gasoline.

   Inspector Bill Munoz obtained the sample and an analysis of the sample revealed that the produce had an octane rating of 86.9 octane, whereas the octane rating posted on the dispenser indicated that the octane rating of the product was 89 octane.

   
   

3. On that date, May 14, 1987, Respondent issued a "stop sale notice" for all of the unleaded product which was determined to be 213 gallons.

   
   

4. Petitioner was advised by Inspector Munoz that the unleaded produce should be held until he received further instructions from the Respondent respecting any proposed penalty. On May 15, 1987, Petitioner was advised by John Whittier, Chief, Bureau of Petroleum Inspection, Florida Department of Agriculture and Consumer Services, that the Antiknock Index number of the sampled product was 2.1 percent below the octane rating displayed on the dispenser and that an administrative fine would be levied in the amount of $200 based on the number of gallons multiplied times by the price at which the product was being sold, i.e., 213 gallons times 93.9 cents per gallon.

   
   

5. Petitioner did not dispute Respondent's analysis of the product sample, but instead reported that he had been advised that three of the five tanks at his station were leaking and that this is the first incident that he was aware of wherein the product tested below the octane rating displayed on the dispenser.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

8. The authority of the Respondent is derived from Chapter 525, Florida Statutes, and Chapter 5F, Florida Administrative Code.

   
   

9. Petitioner, by selling a product with an Antiknock Index number 2.1 percent below the Antiknock Index number displayed on its dispenser, engaged in conduct within the purview of s. 525.06, Florida Statutes and section 5F-2.01(i) Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED:

That the Respondent, Department of Agriculture and Consumer Services, enter a Final Order imposing an administrative fine in the amount of $200 payable by Petitioner to Respondent within thirty (30) days after entry of the Respondent's Final Order entered herein.

RECOMMENDED this 7th day of October, 1987, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1987.

COPIES FURNISHED:

Rafael E. Ruiz

c/o Coral Way Mobil 3201 Coral Way

Miami, Florida 33145

Clinton H. Coulter, Jr., Esquire Senior Attorney

Office of General Counsel Department of Agriculture and Consumer Services

Room 514, Mayo Building Tallahassee, Florida 32399-0800

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Robert Chastain, Esquire General Counsel

Department of Agriculture, and Consumer Services

Room 513, Mayo Building Tallahassee, Florida 2399-0800

Docket for Case No: 87-002654

Orders for Case No: 87-002654