STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1145

)

HUDSON OIL COMPANY, )

)

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 July 20, 1990, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Clinton H. Coulter, Jr., Esquire

Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: John H. Newburn

1000 Ninth Street North

St. Petersburg, Florida 33705 STATEMENT OF THE ISSUE

Whether or not Respondent's $1,000.00 bond posted in lieu of confiscation of its petroleum products should be refunded.

PRELIMINARY STATEMENT

On August 31, 1989, Petitioner charged Respondent with selling polluted gasoline and failing to prominently display on its pumps the fact that its unleaded and premium unleaded gasoline contained ethanol. Petitioner and Respondent entered into a release agreement whereby Respondent posted a

$1,000.00 bond in lieu of confiscation of its gasoline. Respondent here seeks a refund of its bond contending that the fine is excessive and/or was inappropriately levied.

At the hearing, Petitioner presented the testimony of its inspector, Henry

1. Crafa and Respondent presented the testimony of John H. Newburn.

   FINDINGS OF FACT

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

   
   

   1. Respondent, Hudson Oil Company, is the owner of a retail gasoline outlet located at 1000 Ninth Street North, St. Petersburg, Florida. John H. Newburn is the manager of Respondent's retail station.

      
      

   2. On August 25, 1989, Petitioner, Department of Agriculture and Consumer Services' inspector, Henry J. Crafa, made a routine inspection of Respondent's retail gasoline station and took a sample of the unleaded, regular and premium unleaded gasolines.

      
      

   3. Inspector Crafa submitted the samples taken from Respondent's facility to Petitioner's laboratory for analysis.

      
      

   4. The results of Petitioner's laboratory analysis revealed that the unleaded and premium gasoline contained ethanol.

      
      

   5. Additionally, the lab analysis revealed that Respondent's regular gasoline contained water.

      
      

   6. The lab analysis revealed that Respondent's premium unleaded had an Antiknock Index of 91.6, whereas the posted Antiknock Index was 93.0. This indicates that the Antiknock Index of the premium unleaded fuel was 1.4% less than the Antiknock Index which was displayed on the dispensing tank.

      
      

   7. The lab analysis also revealed that the Respondent's unleaded gasoline contained 10.5% ethanol and the premium unleaded gasoline contained 8.8% ethanol.

      
      

   8. At the time of Petitioner's inspection on August 25, 1989, there were approximately 8,000 gallons of unleaded gasoline and approximately 2,000 gallons of premium unleaded gasoline in Respondent's dispensing tanks, and for both grades of gasoline, the retail price per gallon was in excess of $1.00. More than 2,000 gallons of gasoline was sold to retail customers at a price in excess of $1.00 per gallon.

      
      

   9. At the time of Inspector Crafa's inspection, Respondent's fuel tanks failed to display on the upper one-half of the front panel, in a position clear and conspicuous from the driver's position, that its unleaded and premium unleaded gasoline contained ethanol.

      
      

   10. On August 31, 1989, Petitioner issued a "Stop Sale Notice" for Respondent's unleaded and premium unleaded gasoline.

       
       

   11. In lieu of confiscation, and in order to gain release and possession of its unleaded and premium unleaded gasoline, Respondent entered into a release notice and/or agreement with Petitioner whereby Respondent posted a $1,000.00 bond in lieu of confiscation of its gasoline.

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. The authority of the Petitioner is derived from Chapter 525, Florida Statutes and Rule Chapter 5F-2, Florida Administrative Code.

       
       

   14. Subsection 525.06, Florida Statutes, authorizes the Department to confiscate and/or sell gasoline fuels which are declared to be illegal or substandard.

       
       

   15. Petitioner presented clear and convincing evidence which indicated that Respondent sold or offered for sale, gasoline which was below standard because it was found to have an Antiknock Index more than 1% below the posted specification. By so doing, Petitioner engaged in proscribed conduct within the purview of Subsection 5F-2.002(1)(b), Florida Administrative Code.

       
       

   16. Petitioner established, by clear and convincing evidence, that Respondent failed to properly display the fact that its unleaded and premium unleaded gasoline contained ethanol. Respondent thereby engaged in conduct in violation of Subsections 5F-2.003(7)(a) and (b), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a Final Order denying Respondent's request for a refund of the $1,000.00 bond that it posted in lieu of confiscation or its fuel products.1

DONE and ENTERED this 2nd day of November, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this

2nd day of November, 1990.

Copies furnished:

Clinton H. Coulter, Jr., Esquire Department of Agriculture

and Consumer Services Mayo Building

Tallahassee, Florida 32399-0800

John H. Newburn

1000 Ninth Street North

St. Petersburg, Florida 33705

Mary Hudson

Hudson Energy Corporation Post Office Box B

Kansas City, Kansas 66103

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Mallory Horne, Esquire General Counsel Department of Agriculture

and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Ben Pridgeon, Chief Bureau of License & Bond Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-001145

Orders for Case No: 90-001145