STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRANDMA'S PANTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5315

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

) GRANDMA'S PANTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6164

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on October 29, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles E. Lineberger, pro se

Grandma's Pantry of Florida, Inc. Post Office Box 8189

Lakeland, Florida 33802

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

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUES

Was a mislabeled product sold by the Petitioner?

PRELIMINARY STATEMENT

Neither party filed proposed findings of fact, and neither party ordered a transcript of the proceedings. The only exhibit introduced was Grandma's Exhibit No. 1.

FINDINGS OF FACT

1. On June 19, 1990, samples of leaded regular gasoline were taken from Chiefland Oil Company, a/k/a Grandma's Pantry ("Grandma's"), at two different locations in Chiefland, Florida. Analysis of these samples revealed that there was less than .01 percent lead additive in the product.

   
   

2. In each instance, the Respondent accepted a $1,000.00 bond in lieu of confiscation of the product.

   
   

3. Grandma's subsequently was cited for violation of the product labeling laws and noticed that the Respondent intended to assess a fine on this case for the lesser of the amount of the product sold at retail or $1,000.00.

   
   

4. The notice of violation advised Grandma's of its right to a formal hearing on the allegations. Grandma's made a timely request for hearing and these cases resulted.

   
   

5. At hearing, the Respondent admitted the allegations but stated in explanation that the offense arose during the changeover by manufacturers from leaded to unleaded regular gasoline.

   
   

6. The dealer had attempted to contact the Respondent's local representative without success in an effort to determine how to handle this problem, which was common to all dealers at this time.

   
   

7. In locations where it could, the dealer pumped the leaded gasoline out of the storage tanks and consolidated it in one tank at one station where it sold the product as leaded until the tank was almost empty and then added unleaded to the leaded gasoline until it met unleaded standards and then changed the labeling.

   
   

8. The dealer was attempting to dilute leaded with unleaded gasoline but had not yet replaced the leaded labels with unleaded labels when the sample was taken. The dealer could not pump these tanks dry because of the nature of their construction.

   
   

9. The gasoline tested met the octane requirements but did not contain the lead additives. The lead additives lubricate the valves of older cars designed to burn leaded fuels. Modern unleaded fuels do not provide such additives. The law prohibits the sale of leaded products as unleaded products imposing sizeable fines for this violation.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, pursuant to Chapter 120, Florida Statutes.

    
    

11. The dealer admits that the product was mislabeled. See Chapter 5F- 2.001, Florida Administrative Code. The dealer's only defense is that this problem was universal, and the dealer attempted to obtain from the Respondent's representative a solution, without success. The following was the situation depicted at the hearing:

12. The dealer appears to have been caught in a Catch 22 situation in which the manufacture of leaded gasoline was stopped by manufacturers. This is generally good for the environment; however, older cars benefited from the lead additives. The Respondent was aware of this changeover but did nothing to facilitate the orderly changeover of product.

    
    

13. Because of the laws against selling leaded gasoline as unleaded gasoline and the disposal/dumping of gasoline, the options available to dealers were narrow. While the dealer admits that the gasoline was mislabeled, he argues that the Respondent would not provide him with advice or how to proceed and that it was better to sell the unleaded regular gasoline as leaded regular gasoline than to sell mislabeled unleaded gasoline with some lead content or to dump the gasoline.

    
    

14. The Respondent's argument was that in a shrinking leaded gasoline market, the advertised availability of leaded gasoline was a material violation of the law. This seems questionable when the next tank of gas which the customer bought would be unleaded gasoline; and this was universally true, as leaded regular gasoline became a thing of the past. The formulation of the new product is generally compatible with the requirements of the older vehicles but does not contain lead.

    
    

15. This is a technical violation of the statute and rules. It is also one which, by its nature, is not reoccurring. Although the product admittedly was mislabeled, there was a period during which the choices for labeling presented a Hobson's choice to dealers. Dumping the product is environmentally damaging. The choice taken by the dealer was logical and less harmful to the environment than dumping the product or ruining catalytic converters with leaded products.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Respondent exercise discretion as requested by the dealer and return the two bonds in the amount of $1,000.00 each.

DONE AND ENTERED this 5th day of December, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1990.

COPIES FURNISHED:

The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and

Consumer Services The Capitol

Tallahassee, FL 32399-0810

Mallory Horne, Esq.

General Counsel

Department of Agriculture and Consumer Services

515 Mayo Building Tallahassee, FL 32399-0800

Charles E. Lineberger

Grandma's Pantry of Florida, Inc.

P.O. Box 8189 Lakeland, FL 33802

Clinton H. Coulter, Jr., Esq. Department of Agriculture and

Consumer Services

515 Mayo Building Tallahassee, FL 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: 90-005315

Orders for Case No: 90-005315