STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1729

)

FRANK HAMPTON, d/b/a )

HAMPTON'S GULF STATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on May 20, 1991 in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Clinton H. Coulter, Jr., Esquire

Department of Agriculture and Consumer Services

510 Mayo Building Tallahassee, FL 32399-0800

FOR RESPONDENT: (Mrs.) Willa Dean Hampton,

as qualified representative Hampton Villa Apartments

3190 West Edgewood Avenue Jacksonville, FL 32209

STATEMENT OF THE ISSUE

Whether or not the agency may, pursuant to Section 525.06, F.S. enter an assessment for sale of substandard product due to a violation of the petroleum inspection laws and also set off that amount against Respondent's bond.

PRELIMINARY STATEMENT

At the commencement of formal hearing, Willa Dean Hampton was examined pursuant to statute and rule and accepted as the qualified representative to conduct Respondent's case.

The parties orally entered into numerous factual stipulations on the record. Joint Exhibits A and B were admitted in evidence by stipulation.

Petitioner Department of Agriculture and Consumer Services presented the oral testimony of Nancy Fischer and Willa Dean Hampton and had one exhibit admitted.

Willa Dean Hampton also testified on behalf of Respondent.

No transcript was provided. Both parties waived the opportunity to file proposals.

FINDINGS OF FACT

1. Frank Hampton, d/b/a Hampton's Gulf Station, has operated at 2610 North Myrtle Avenue, Jacksonville, for many years and has had no prior complaints against it by the Petitioner. Respondent is in the business of selling kerosene, among other petroleum products. The facts in this case are largely undisputed.

   
   

2. On November 28, 1990, Bill Ford, an inspector employed with the Department of Agriculture and Consumer Services, visited the Respondent's premises to conduct an inspection of the petroleum products being offered for sale to the public.

   
   

3. Ford drew a sample of "1-K" kerosene being offered for sale, sealed it, and forwarded it to the agency laboratory in Tallahassee where John Anderson, under the supervision of Nancy Fischer, an agency chemist, tested it to determine whether the sample met agency standards.

   
   

4. The testing revealed that the sampled kerosene contained .21% by weight of sulfur. This in excess of the percentage by weight permitted by Rule 5F- 2.001(2) F.A.C. for this product, but it would qualify as "2-K" kerosene.

   
   

5. A "Stop Sale Notice" was issued, and on the date of that notice (November 30, 1990) the tank from which the test sample had been drawn contained 3887 gallons of product. It was determined from Respondent's records that 4392 gallons had been sold to the public since the last delivery of 5500 gallons on November 16, 1990. The product was sold at $1.58 per gallon. The calculated retail value of the product sold was determined to be in excess of $1,000.00, and the agency permitted the seller to post a bond for $1,000.00 (the maximum legal penalty/bond) on December 3, 1990. The assessment is reasonable and conforms to the amount of assessments imposed in similar cases.

   
   

6. On this occasion, Respondent had purchased the kerosene in question from a supplier which is not its usual wholesale supplier. This was the first time Respondent had ever ordered from this supplier and it is possible there was some miscommunication in the order, but Respondent intended to order pure "1-K" kerosene. Respondent only purchased from this supplier due to the desperate need in the community for kerosene during the unusually cold weather that occurred during the fall of 1990. Respondent ordered "1-K" kerosene and believed that "1-K" had been delivered to it by the new wholesale supplier up until the agency inspector sampled Respondent's tank.

   
   

7. After posting bond, Respondent originally intended to send the unused portion of "2-K" kerosene back to its supplier, but instead was granted permission by the agency to relabel the remaining product so that the label would correctly reflect that the product was "2-K." Respondent accordingly charged only the lesser rate appropriate to "2-K" kerosene for sale of the remaining 3887 gallons.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

   
   

9. Section 525.05 F.S. 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.

   
   

10. Rule 5F-2.001(2) F.A.C. sets the standard for sulfur in kerosene as

    .04% by weight. The seller here was clearly in violation of that standard, and the assessment and bond were reasonable. The agency has borne its initial burden to prove the legitimacy and amount of the assessment.

    
    

11. Respondent did not dispute any of the material facts as found, but suggested that some of the $1,000.00 bond should be refunded by the agency because he claimed to be the unwitting victim of his supplier. The law does not provide for such a setoff.

    
    

12. Alternatively, Respondent suggested that his supplier should be forced to refund Respondent the cost either of the product or the bond. There is no procedure at law before the Division of Administrative Hearings to effect such restitution from a nonparty.

    
    

13. Although the facts are undisputed, the agency made clear at formal hearing that it does not view this case as an issue of bad intent and has the highest regard for Respondent's character. This is, purely, a distributorship fine case which the agency is charged by law to administer.

    
    

14. The agency is entitled to retain the maximum amount of bond permissible for the penalty.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Cnsumer Services enter a final order approving the $1,000.00 maximum penalty and offsetting the bond against it.

DONE and ENTERED this 20th day of June, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 20th day of June, 1991.

COPIES FURNISHED TO:

FRANK HAMPTON

HAMPTON VILLA APARTMENTS 3190 WEST EDGEWOOD AVENUE JACKSONVILLE, FL 32209

CLINTON COULTER, JR. ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES (LEGAL)

MAYO BUILDING, ROOM 510 TALLAHASSEE, FL 32399-0800

HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810

RICHARD TRITSCHLER, GENERAL COUNSEL 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 consult with 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: 91-001729

Orders for Case No: 91-001729