STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3583

)

THE GOLDEN LARIAT - GRAND )

RIDGE - JACKSON COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Marianna, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on April 27, 1988. Petitioner was represented by Clinton H. Coulter, Jr., Florida Department of Agriculture and Consumer Services, Mayo Building, Tallahassee, Florida, 32399-0800. Respondent did not appear at the hearings.

The issue addressed in this proceeding is whether respondent is entitled to a refund of the $1,000 bond it posted in lieu of confiscation pursuant to Section 525.06, Florida Statutes.

Petitioner offered the testimony of John Whitten, petitioner's chief of the Bureau of Petroleum Inspection and James Hall, petitioner's field inspector, and offered one composite exhibit consisting of the lab report, stop sale notice, and the bond. Petitioner filed a proposed recommended order on May 13, 1988.

Petitioner's proposed findings of fact have been considered and utilized in the preparation of this recommended order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, subordinate. Specific rulings on the Petitioner's proposed findings of fact are contained in the appendix to this recommended order.

FINDINGS OF FACT

1. The Golden Lariat is a service station in the business of selling regular, regular unleaded, and unleaded premium gasoline to the public. Each type of gasoline is stored in separate underground tanks by the Golden Lariat at its place of business at the intersection of State Road 69 and Interstate 10 in Jackson County, Florida.

   
   

2. On July 23, 1987, James Hall visited the station to do an unannounced routine inspection of the premises. When he pulled up in his vehicle, he saw a hose running from the unleaded regular tank to the unleaded premium tank. The hose was connected to a small pump which in turn was hooked to Respondent's 12 volt battery. The pump was not running at the time Mr. Hall conducted his inspection.

3. In view of what he had witnessed, Mr. Hall decided to check the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Hall was particularly interested in the results the lab would obtain on the premium-unleaded gas. He took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline.

   
   

4. The antiknock index or octane rating that the premium unleaded gasoline tested at was 88.6 or 2.4 units lower than departmental requirements. The premium unleaded should have had an octane rating of 91 or higher in order to meet departmental standards. The results strongly indicated that the unleaded premium had been mixed with a lower octane gas such as regular unleaded, thereby yielding a lower average octane rating for the premium unleaded. The regular unleaded gasoline had an octane rating of 87.3.

   
   

5. When Mr. Hall questioned one of the owners of the Golden Lariat, Mr. Bowan, Mr. Bowan indicated he was pumping water with the pump. Mr. Hall testified that pumping water would not be unusual since the station had had problems with water infiltration into its gasoline storage tanks in the past. However, an owner would not pump water from one tank into another tank as was indicated by what Mr. Hall had seen.

   
   

6. The evidence clearly establishes that the Golden Lariat intentionally mixed its unleaded premium with its unleaded regular gasoline. This was done in an attempt to sell an otherwise cheaper and lower grade gasoline to the consuming public compared to the gasoline the Golden Lariat represented the consumer was buying. In light of the above facts the Department elected to allow the Golden Lariat to post a $1,000 bond in lieu of confiscation of the 1,700 gallons of gas in the unleaded premium tank. The bond was posted on August 24, 1987, and the gasoline was subsequently removed.

   
   

7. No evidence was presented by petitioner as to the amount of gasoline sold by respondent out of the unleaded premium gasoline tank. However, Respondent did not appear at the hearing after notice was mailed to him on March 22, 1988. The notice was mailed well in advance of the hearing and afforded Respondent adequate warning of the upcoming hearing. By failing to appear at the hearing after adequate notice, Respondent is deemed to have abandoned its claim to a refund; and therefore, Respondent is not entitled to a refund of any portion of the bond it posted in lieu of confiscation. Rule 22I-6.022, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Rule 22I-6.022, Florida Administrative Code, provides that the failure to appear of one of the parties, after notice, shall be grounds to enter a recommended order of dismissal. Respondent failed to appear at the hearing scheduled for April 27, 1988, in Marianna, Florida, after adequate notice had been given.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing the Respondent's claim for refund of the bond posted and estreating the bond.

DONE and ENTERED this 1st day of June, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 1st day of June, 1988.

COPIES FURNISHED:

Clinton H. Coulter, Jr., Esquire Florida Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida, 32399-0800

Mike Adkins

The Golden Lariat Route 2, Box 710

Grand Ridge, Florida 32442

Honorable Doyle Connor Commissioner of Agriculture Florida Department of Agriculture

and Consumer Services The Capitol

Tallahassee, Florida 32399-0810

Ben Pridgeon, Chief

Bureau of Licensing & Bond Florida Department of Agriculture

and Consumer Services Lab Complex

Tallahassee, Florida 32399-1650

Docket for Case No: 87-003583

Orders for Case No: 87-003583