STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUWANNEE SWIFTY # 262, )

)

Petitioner, )

)

v. ) CASE NO. 90-5027

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 21, 1990, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Calvin Huff, Representative

Suwannee Swifty Stores, Inc. Post Office Box 311

Quitman, Georgia 31643-0311

For Respondent: Clinton H. Coulter, Jr.

Senior Attorney

Department of Agriculture and Consumer Services

Room 510, Mayo Building Tallahassee, FL 32399-0800

STATEMENT OF ISSUES

The issue is whether Suwannee Swifty is entitled to a refund of the bond posted on August 10, 1990.

PRELIMINARY STATEMENT

The Petitioner, Suwannee Swifty Store No. 262, presented the testimony of Marcus Sapp and Calvin L. Huff. The Respondent, Department of Agriculture and Consumer Services (the Department), presented the testimony of John Whitten and had Exhibit 1 admitted in evidence.

The parties waived the filing of a transcript and of proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. On August 7, 1990, the Department performed a routine inspection of the gasoline pumps at the Suwannee Swifty Store No. 262 in Tallahassee, Florida.

   The tests performed showed that the gasoline being pumped from the tank and pump labeled "Regular" in fact contained no lead.

   
   

2. Suwannee Swifty was switching the tank from regular leaded gasoline to unleaded gasoline. As part of the switching process, they were pumping unleaded gasoline through the regular leaded gasoline pump to clear out the lines.

   
   

3. There is no dispute that on the day in question Suwannee Swifty Store No. 262 was pumping and selling unleaded gasoline through a pump labeled for regular leaded gasoline.

   
   

4. As a result of the testing, the Department returned to the store on August 10, 1990, and seized the gasoline. In order to gain the release of the gasoline, the store posted a bond of $622.03.

   
   

5. The amount of the bond was calculated by multiplying the number of gallons sold at the mislabeled pump (566 gallons) times the price per gallon at which the gasoline was sold ($109.9).

   
   

6. After the bond was posted and the gasoline released, Suwannee Swifty was permitted to sell the gasoline as unleaded gasoline.

   
   

7. The Department assessed Suwannee Swifty the retail value of the product sold, which is equal to the bond posted. The assessment is reasonable and conforms to the amount of assessments imposed by the Department in similar cases.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

   Section 525.06, Florida Statutes, states:

   
   

   All oils . . . that shall fall below the standard fixed by the Department of Agriculture and Consumer Services, are declared illegal and shall be 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 product 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.

9. The burden is on the Petitioner, Suwannee Swifty, to prove that it is entitled to a refund of the bond posted. Conversely, the burden is on the Department to prove that the assessment or penalty which it seeks to impose is appropriate. However, in this case the Department is seeking to retain the bond as the assessment.

   
   

10. In attempting to apply the law to the facts, it is clear that Suwannee Swifty Store No. 262 violated Section 525.06 by selling mislabeled gasoline and that the Department has entered an assessment which is authorized by that section. The Petitioner has not proven that it is entitled to a refund of the bond. The Department has proven that it has made an assessment that is authorized and is consistent with the terms of the statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the request of Suwannee Swifty Store No. 262 for refund of

the bond posted be DENIED and that the assessment by the Department of

Agriculture and Consumer Services in the amount of $622.03 be sustained.

DONE and ENTERED this 17th day of October, 1990, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1990.

Copies furnished:

Calvin Huff, Representative

Marion M. Folsom, Chief Executive Officer Suwannee Swifty Stores, Inc.

Post Office Box 311

Quitman, Georgia 31643-0311

Clinton Coulter, Jr.

Senior Attorney

Department of Agriculture and Consumer Servic

Room 510, Mayo Building Tallahassee, Florida 32399-0800

Hon. Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

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: 90-005027

Orders for Case No: 90-005027