Judges: K. N. AYERS
Agency: Department of Agriculture and Consumer Services
Latest Update: Feb. 16, 1988
Summary: Found guilty of selling contaminated gasoline.
87-5568STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5568
)
BALM GROCERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on February 4, 1988, at Tampa, Florida.
APPEARANCES
For Petitioner: Robert A. Chastain, Esquire
Department of Agriculture and Consumer Services
Mayo Building
Tallahassee, Florida 32399-0800
For Respondent: Respondent was not present or represented.
Prior to the commencement of the hearing, and at the request of the Hearing Officer, a representative of Petitioner's telephoned Respondent to inquire if a representative would be present at the hearing. During that conversation, Respondent disclaimed receiving notice that the time of the hearing had been changed from 1 p.m. to 9 a.m. on February 4, 1988.
The file in this case reveals that on December 28, 1987, this case was scheduled for hearing to commence at 1 p.m. on February 4, 1988, and was forwarded by U.S. Mail to the address given by Respondent in its request for hearing. Respondent acknowledged receipt of this notice. On January 15, 1988, an Amended Notice of Hearing was issued which changed only the time of day for which the hearing was scheduled from 1 p.m. to 9 a.m. This Amended Notice of Hearing was sent by U.S. Mail to the same address the original Notice of Hearing was sent, and was not returned by the post office as undelivered. Respondent contends that this Amended Notice was not received and, when asked on the morning of the hearing if a representative could come to the hearing forthwith, Respondent said that no representative could arrive before noon.
Thereafter the hearing was commenced, Petitioner called one witness, and three exhibits were admitted into evidence. No transcript of the proceedings was ordered, and Petitioner waived the right to submit a proposed recommended order.
FINDINGS OF FACT
On October 6, 1987, a petroleum inspector from the Department of Agriculture and Consumer Services conducted a routine inspection of the gas pumps at Balm Grocery at Balm, Florida.
When a sample was taken from the Chevron unleaded, the inspector immediately noticed an unusual color for unleaded gasoline. A subsequent analysis of this sample showed the sample contained 3.3 grams of lead per gallon.
Upon receipt of the lab report, the inspector placed a stop sale order on the pump and locked the pump. Shortly thereafter, the owner of Balm Grocery posted a bond of $1000 to get the stop sale lifted and commenced selling gas from this tank as leaded gasoline.
Prior to the stop sale posted on this pump, more than 1000 gallons of polluted gasoline had been sold by Respondent as unleaded plus gasoline.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 525.06, Florida Statutes, provides that various oils and gasolines used or intended to be used for power sold under a distinctive name which falls below standards fixed by the Department of Agriculture and Consumer Services shall be subject to forfeiture. Rule 5F-2.001(1)(j), Florida Statutes, provides unleaded gasoline may not contain more than .05 grams of lead per gallon, and leaded gasoline may contain lead compounds not to exceed 4.2 grams of lead per gallon.
Since the sample taken from Respondent's tank contained a lead content associated with leaded gasoline, the product clearly was subject to forfeiture. In lieu of confiscating the gasoline, Petitioner, pursuant to an agreement with Respondent, accepted a bond in the amount of $1000 and thereafter allowed Respondent to sell the product as unleaded gasoline.
From the foregoing, it is concluded that Respondent sold more than 1000 gallons of contaminated unleaded gasoline from the Chevron unleaded plus tank at Balm Grocery before the stop sale notice was posted. It is Recommended that Balm Grocery be required to forfeit the $1000 bond posted.
ENTERED this 16th day of February, 1988, in Tallahassee, Florida.
K. N. AYERS 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 16th day of February, 1987.
COPIES FURNISHED:
Robert A. Chastain, Esquire
Department of Agriculture and Consumer Services Mayo Building
Tallahassee, Florida 32399-0800
Mrs. Tom Winglong Balm Grocery
Post Office Box 646 Balm, Florida 34253
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32399-0810
Ben Pridgeon, Chief
Bureau of Licensing & Bond Department of Agriculture Lab Complex
Tallahassee, Florida 32399-1650
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,
Complainant,
vs. Case No. 87-5568
BALM GROCERY,
Respondent.
/
FINAL ORDER
This matter came before the Department for a determination upon submission of the Hearing Officer's Recommended Order on February 2, 1988. No exceptions to the Recommended Order were filed. Having fully considered the matter, the undersigned hereby adopts the Recommended Order, a copy of which is attached, as the Department's Final Order in this matter; except for the typographical error in the last line of Page 3 where the word "unleaded" should be "leaded" and is amended to read same.
Based upon the foregoing, it is
ORDERED that the respondent, Balm Grocery, pay as penalty the sum of $1,000 and that the $1,000 bond is hereby applied to payment of the penalty.
DONE AND ORDERED this 17th day of March, 1988.
DOYLE CONNER
Commissioner of Agriculture
COPIES FURNISHED TO:
K.N. Ayers, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Mrs. Tom Wingler Harry L. Michaels
Palm Grocery Department of Agriculture and
Post Office Box 66 Consumer Services
Balm, Florida 324253 Room 513, Mayo Building Tallahassee Florida 32399-0800
Docket for Case No: 87-005568
Orders for Case No: 87-005568
