Findings Of Fact The Petitioner is an agency of the state of Florida charged, in pertinent part, with regulating purveyors of gasoline sold at retail in the state of Florida, to ascertain if gasoline meets appropriate quality standards including the standards, embodied in the Department's rules for lead additive content. The Respondent is a corporation doing business in the state of Florida which engages in the retail sale of gasoline, including sale of such product at the Suwanee Swifty Store #265 at 1971 West Silver Springs Boulevard in Ocala, Florida. An agent of the Petitioner agency performed a routine inspection on a pump connected to a storage tank operated by the Respondent on September 12, 1990. The pump add storage tank contained gasoline offered for sale and some of which had been previously sold to the general motoring public. The gasoline contained in the storage tank was a mixture of unleaded gasoline and lead- containing regular gasoline (leaded regular). The pump which pumped the gas from that tank was labeled "regular", meaning that it was labeled for a gasoline containing lead. There is no dispute that the Respondent was selling gasoline which did not meet the standard for leaded regular gasoline because it contained an insufficient amount of lead. This situation arose because the Respondent had placed an order of unleaded regular gasoline from its supplier into the tank in order to begin converting that tank and pump from the sale of regular leaded gasoline to unleaded gasoline. As part of the switching process, unleaded gasoline was being added to the regular gasoline remaining in the pump or tank in order to convert the contents of the tank over to gasoline which could be legally sold as unleaded gasoline. Until the conversion process for the tank contents was complete the Respondent intended to and did sell the gasoline as leaded regular, because selling the gasoline at below the actual lead content of leaded regular during the conversing process would not harm customers and the price was set at below the current market price for leaded regular. If, on the other hand, the Respondent had sold the product in the tank and through that pump as unleaded gasoline, by re-labeling the pump before the actual contents of the tank served by it had been converted completely to unleaded gasoline, the labeling might have been strictly legal because the contents of the tank were below the legal standard for leaded regular authorized in Rule 5F-2.001(1)(j), Florida Administrative Code, but the selling of such gasoline which still contains some lead might harm the vehicles of the motoring public using it for vehicles designed to use only unleaded gasoline. In any event, because the Department's investigation revealed that the Respondent was selling gasoline through the pump labeled for regular leaded gasoline which did not meet the lead content standard for regular leaded gasoline, the Department seized the gasoline and immediately allowed the Respondent to post a bond in the amount of $1.26.9 per gallon times the number of gallons sold, for a total bond of $696.68. The Department seeks to assess an identical amount against the Respondent in this proceeding. Upon on the posting of the bond, the product was released back to the possession of the Respondent the next day and allowed to be sold after the pump was relabeled to indicate "unleaded plus". In fact, the allowing of the Respondent to resume sales of the product under the label "unleaded plus" may not be strictly legal either, because, in fact, the product when the resale of the product began still contained some lead content when resale began. In any event, however, the product being sold at the time the inspection was made was not of a quality equivalent to the appropriate standard in the above rule for "leaded regular" and therefore under the authority cited below the Department has the authority to make the assessment it seeks to impose against the bond posted by the Respondent. The assessment would be reasonable under circumstances prevailing under other similar cases in which the Department has imposed a similar amount of assessment. However, in the instant case, the Respondent established with unrefuted testimony that it was making an honest attempt to convert the gasoline in its tank and the pump to unleaded and that during the transition from the same tank of leaded regular to unleaded gasoline from that tank and pump it is normal and accepted in the industry for the product to contain some lead, albeit not enough to be truly in conformance with the above standard. Likewise it would have been inaccurate to label the pump at that point in the conversion process as "unleaded" because some residuum of lead remained in the product in the tank. The point is that the manner in which the Respondent sold the gasoline, by continuing to label it as regular, instead of unleaded, was less harmfully misleading to the public because the use of such gasoline in cars requiring leaded regular would not be harmful to the mechanical components of those vehicles. Because the pump at the time of the sales in question was labeled regular (meaning leaded regular) cars requiring unleaded gasoline would not have been filled at that pump with such drivers being aware of the necessity to only fill their car at pumps labeled "unleaded", etc. Thus the harm which can be posed to mechanical components of cars requiring unleaded gas by the fueling of the car with leaded gasoline was least likely to occur by the conversion method followed by the Respondent involving keeping the old regular leaded label until the gasoline in the tank was entirely converted over to a content and quality which equated to the legal standard for unleaded gasoline. Because of this, although it is undisputed that Respondent was selling gasoline from the pump in question which did not meet the legal standard for leaded regular, the Department should exercise its discretion in favor of returning the amount of the bond posted to the Respondent.
Recommendation That a final order be entered by the Department of Agriculture and Consumer Services granting the request of the Respondent for refund of the bond posted and that the Department elect to rescind its assessment-in the amount of $696.68. DONE and ENTERED this 25th day of April, 1991, in Tallahassee, Florida. COPIES FURNISHED: R. Bruce Sheets, Manager Lewis Oil Company, Inc. Post Office Box 1282 Gainesville, FL 32602 Clinton H. Coulter, Jr., Esq. Department of Agriculture and Consumer Affairs 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford, Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 P. MICHAEL RUFF 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 26th day of April, 1991. Richard Tritschler, General Counsel Department of Agriculture and Consumer Services 515 Mayo Bldg. Tallahassee, FL 32399-0800
Findings Of Fact On June 2, 1983, Petitioner Department of Agriculture and Consumer Services' Inspector James Gillespie conducted an inspection of Respondent Gas Kwick, Inc.'s service station located at 8401 North Armenia Avenue, Tampa, Florida. He took samples of all petroleum products and observed that the Super Unleaded Ethanol contained suspended matter. He thereupon took the sample for analysis to the Department's portable laboratory for analysis on the same date. The field analysis disclosed that the product contained more than 14.2 percent of ethanol (ethylene alcohol) which exceeded the maximum allowable amount of 10 percent. Further, the 50 percent evaporated temperature of the product was 164 degrees which was less than the minimum allowable 170 degrees. The product sample was also sent to Petitioner's main laboratory for confirmation of the findings, and it was there determined that the super unleaded sample contained 25.2 percent of ethanol. Excessive ethanol in gas9line can be corrosive and cause damage to plastic parts of the engine. It can also cause phase separation of the contents in the gas tank producing layers which can get into the carburetor and cause the vehicle to stop. Excessive ethanol also diminishes driveability of the automobile and can damage fuel pumps. (Testimony of Gillespie, Fisher, Petitioner's Exhibit 1) Inspector Gillespie issued stop sale notices to Respondent on June 2 and June 3, 1983, which notified Respondent to immediately stop the sale of the super unleaded product and hold the same subject to further instructions. In order to obtain release of the product, Respondent elected to post a bond in the amount of $614.25 which represented the retail price for 394 gallons of the product that had been sold. One of the stop sale notices had been released by the installation of a new filter by Respondent to eliminate suspended matter. The release notice by which Respondent elected to post a cash bond in lieu of confiscation of the product provided that the gasoline in question should be removed from the tank and replaced by a new product. (Testimony of Gillespie, Petitioner's Exhibit 1) Respondent's representative testified that the firm had tried to be careful in the use of ethanol enriched gasoline and had immediately taken corrective action with respect to the super unleaded product in question by replacement. He pointed out that the amount of gasoline found to be defective represented only about 3 percent of the total amount located at the firm's 20 service stations and that this was a first offense which was unintentional. (Testimony of Perrone)
Recommendation That the bond posted by Respondent in the amount of $614.25 be retained by Petitioner as an assessment under Section 525.06, Florida Statutes. DONE and ENTERED this 8th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983. COPIES FURNISHED: Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Tony Perrone, Comptroller Gas Kwick, Inc. Post Office Box 5751 Tampa, Florida 33675 Honorable Doyle C. Conner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
Findings Of Fact Sunshine Jr. Stores, Inc., #214 is a service station in the business of selling regular leaded, regular unleaded, and unleaded premium gasoline to the public. Store # 214's place of business is located at the intersection of East Avenue and U.S. Highway 98 in Panama City, Florida. On August 6, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Wood took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline. The Departmental testing revealed that the regular-leaded gasoline did not contain any lead. The pumps had been mislabeled at the station and the station was in fact selling regular leaded gasoline as regular-unleaded gasoline. Since the leaded gasoline did not contain any lead, it fell below Departmental standards for leaded gasoline. The store had sold 2467 gallons of the mislabeled product. In light of the above facts, the Department elected to allow the Sunshine-Jr. Store, #214, to post a $1,000 bond in lieu of confiscation of the gasoline. The bond was posted on August 9, 1990. The Department assessed Sunshine-Jr. Stores, Inc., #214 the retail value of the product sold, which is equal to the posted bond. The assessment is reasonable and conforms to the amount of assessments imposed by the Department in similar cases.
Recommendation It is accordingly, RECOMMENDED: That the request of Sunshine Jr. Food Stores, #214 for refund of the bond posted be DENIED and that the assessment by the Department of Agriculture and Consumer Services in the amount of $1,000 be sustained. DONE and ORDERED this 16th day of March, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 18th day of March, 1991. COPIES FURNISHED: Milton Lawrence P. O. Box 2498 Panama City, Florida 32402 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The question presented here concerns the Petitioner, State of Florida, Department of Agriculture and Consumer Services' Stop Sale Notice placed against Respondent, Pinner Oil Company under the alleged authority of Section 525.06, Florida Statutes (1980), by the process of requiring a refundable bond in the amount of $471.34, pending the outcome of this dispute in which it is contended that the Respondent supplied gasoline for sale which failed to comply with Rule Subsection 5F-2.01(1)(j), Florida Administrative Code, dealing with the allowed lead content in gasoline.
Findings Of Fact The Petitioner, State of Florida, Department of Agriculture and Consumer Services is an agency of government which has, among other responsibilities, the requirement to establish and enforce standards related to maximum allowable lead content in unleaded gasoline offered for sale to the general public. This regulation is designed to avoid the destruction of catalytic devices found in the exhaust systems of certain cars, in which the destruction of a catalyst would bring about problems, with the exhaust system causing its replacement and more importantly, lead to adverse effects on the environment due to an increase in undesired emission from the exhaust system. The Respondent, Pinner Oil Company of Cross City, Florida, is a jobber which supplies gasoline to retail outlets who in turn sales the gasoline to members of the motoring public. The facts reveal that on October 6, 1980, an official with the Petitioner made a routine inspection of the unleaded gasoline reservoir at the B. F. Goodrich-Texaco at 210 Rogers Boulevard, Chiefland, Florida, a customer of Pinner Oil Company. This gasoline was subsequently analyzed and on October 7, 1989, a Stop Sale Notice was served based upon a determination that the unleaded gasoline found in the reservoir at that station contained more than 0.05 grams of lead per U.S. gallon. The gasoline in question was provided to the B. F. Goodrich outlet by an employee of Pinner Oil Company as a part of his duties with the Respondent. In lieu of the total confiscation of the gasoline found in the reservoir tank at the station In question, the Respondent was allowed to post a refundable bond in the amount of $471.34 which represented the price for the number of gallons sold at a retail price since the time of the prior delivery to that station. (By Stipulation entered into between the parties, it was agreed that a finding of fact would be made to the effect that the Respondent, during the course of the last two years, had not been cited for a violation of the Florida Statutes pertaining to contaminated fuels.)
Findings Of Fact The Petitioner, the State of Florida, Department of Agriculture and Consumer Services, is an agency of state government charged, among other responsibilities, with establishing and enforcing standards related to quality of motor fuels, as pertinent hereto, the standard for volatility contained in Rule 5F-2.01(1)(c) 2, Florida Administrative Code. The Petitioner has charged that the Respondent has technically not met this standard with fuel sold at the two stores, one in Tampa and one in Winter Haven, Florida, because the subject product (which contained ethanol) does not comply with that standard which states that the fuel should be 50 percent evaporated at a temperature of not less that 1700. There is no dispute that the fuel involved did not meet this standard because it was ethanol enriched and was intended to be sold as such by the Respondent. The notice of stop sale was filed herein because this product, which did not comply with the standard for regular or unleaded gasoline, was not labeled to disclose that it was other than unleaded gasoline, that is gasoline containing ethanol. The Petitioner however withdrew its allegation that "super unleaded gasoline" enriched with ethanol was sold in an unlabeled fashion. The Respondent is a corporation authorized to do business in Florida, headquartered in Dallas, Texas. It recently elected to convert many of its gasoline outlets to sell ethanol enriched gasoline, which is characterized by a higher per gallon profit-margin and a higher octane than regular unleaded gasoline. Thus, a memorandum was sent from the Respondent's home office in Dallas, Texas, to all the Respondent's district managers and zone managers providing them with detailed instructions for conversion of stations from selling non-enriched unleaded gasoline to ethanol enriched gasoline, including detailed instructions on preventing adulteration by water in underground tanks, as well as detailed instructions regarding proper labeling and disclosure of the contents of the new type fuel to consumers. Some 130 retail outlets in Florida were converted to sell the ethanol product and booklets were published and distributed to be provided to customers to explain the characteristics of the ethanol fuel to customers. There is no dispute that a good faith effort was consistently followed to adequately disclose the characteristics of the fuel to customers and to properly label the pumps. The Respondent's Tampa store converted to ethanol product on March 26, 1983, and received its first load of ethanol enriched gasoline that day. It was cited or notified to stop sale by the Petitioner on March 29, 1983, because the pumps through which the product was dispensed were mislabeled. The parties agree that this was due to a communication failure between the regional office in Orlando and that station and that the clerk at that Tampa store simply did not get notified to change the labeling on the pumps before the Petitioner observed the violation some two days later and ordered sale of the product stopped. A similar situation is true of the Winter Haven retail outlet which sold ethanol enriched products without disclosure labeling on the pumps. In this instance the labeling had been placed on the pumps, but had been torn off by person unknown and the notice to stop sale was issued against the Respondent with regard to that store before new labeling could be properly placed on the pumps. There is no question, and indeed the parties have stipulated, that the two violations which occurred were inadvertent, and due, with regard to the Tampa instance, to a lack of communication between the Respondent's regional management office and the retail outlet involved, such that proper labeling did not get placed on the pumps timely. With regard to the Winter Haven facility, there is no dispute that the labeling was timely and properly done when the first load of fuel was placed in the underground tanks for sale, but that persons unknown wrongfully removed the labeling. There is no evidence to establish that any such violations have been committed by the Respondent in the past. There is no question that enough of the product was sold to the public to exceed the $1,000 bond posted in lieu of confiscation. It was also established that the violations were inadvertent and were not perpetrated through any intent or scheme to defraud the consuming public.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be required to forfeit $250 of the $1,000 bond posted and that the remaining $750 be returned to the Respondent. DONE and ENTERED this 28th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983. COPIES FURNISHED: Frank Graham, Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32301 Debbie Hunn, Esquire 5500 Diplomat Circle Suite 105 Orlando, Florida 32810 The Honorable Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner, D & H Oil and Gas Company, Inc., dba Oasis Food Store, owns and operates an Oasis Food Store located at 2521 Thomas Drive in Panama City Beach, Florida. As part of the operation of that store, Petitioner operates a gasoline station which sells regular unleaded, unleaded plus, and unleaded premium gasoline to the public. On September 14, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Wood took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met Departmental standards for each type of gasoline. The Departmental testing revealed that the unleaded plus gasoline contained 9.3% alcohol. The pump for the unleaded plus gasoline did not have a label or sticker on it indicating that it contained alcohol. Since the pump did not have such a sticker on it, the sale of any unleaded plus gasoline from that pump would be in violation of Departmental standards for such gasoline. 1/ The store placed the appropriate sticker on the unleaded plus pump as soon as it was possible. In light of the above facts, the Department elected to allow the Petitioner to post a $1,000 bored in lieu of confiscation of the gasoline. The bond was posted on September 17, 1990. No evidence of the amount of gasoline sold while the label was absent was submitted at the hearing. 2/ The Department assessed Petitioner $1000.00, which is equal to the amount of the posted bond. This amount was not based on any evidence of the amount of gasoline sold from the unleaded plus pump during the time the label was not on the pump. Such an assessment is clearly outside the Department's authority. See Section 525.06, Florida Statutes. Therefore, Petitioner is entitled to a refund of its bond.
Recommendation It is accordingly, RECOMMENDED: That the request of D & H Oil and Gas Company, Inc., for refund of the bond posted be GRANTED. DONE and ORDERED this 23rd day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 23rd day of May, 1991.
The Issue The issue presented for decision herein is whether or not Petitioner's Antiknock (octane) Index number of its petroleum product was below the Index number displayed on its dispensing pumps.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compile herein, I make the following relevant factual finding. Rafael Ruiz is the owner/operator of Coral Way Mobil, an automobile gasoline station, situated at 3201 Coral Way in Coral Gables, Florida. Ruiz has operated that station in excess of ten (10) years. On or about May 13, 1987, Respondent, Department of Agriculture and Consumer Services, received a customer complaint alleging that the fuel obtained from Petitioner's station made her automobile engine ping. Respondent dispatched one of its petroleum inspectors to Petitioner's station at 3201 Coral Way on May 14, and obtained a sample of Respondent's unleaded gasoline. Inspector Bill Munoz obtained the sample and an analysis of the sample revealed that the produce had an octane rating of 86.9 octane, whereas the octane rating posted on the dispenser indicated that the octane rating of the product was 89 octane. On that date, May 14, 1987, Respondent issued a "stop sale notice" for all of the unleaded product which was determined to be 213 gallons. Petitioner was advised by Inspector Munoz that the unleaded produce should be held until he received further instructions from the Respondent respecting any proposed penalty. On May 15, 1987, Petitioner was advised by John Whittier, Chief, Bureau of Petroleum Inspection, Florida Department of Agriculture and Consumer Services, that the Antiknock Index number of the sampled product was 2.1 percent below the octane rating displayed on the dispenser and that an administrative fine would be levied in the amount of $200 based on the number of gallons multiplied times by the price at which the product was being sold, i.e., 213 gallons times 93.9 cents per gallon. Petitioner did not dispute Respondent's analysis of the product sample, but instead reported that he had been advised that three of the five tanks at his station were leaking and that this is the first incident that he was aware of wherein the product tested below the octane rating displayed on the dispenser.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, Department of Agriculture and Consumer Services, enter a Final Order imposing an administrative fine in the amount of $200 payable by Petitioner to Respondent within thirty (30) days after entry of the Respondent's Final Order entered herein. RECOMMENDED this 7th day of October, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 7th day of October, 1987. COPIES FURNISHED: Rafael E. Ruiz c/o Coral Way Mobil 3201 Coral Way Miami, Florida 33145 Clinton H. Coulter, Jr., Esquire Senior Attorney Office of General Counsel Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture, and Consumer Services Room 513, Mayo Building Tallahassee, Florida 2399-0800
Findings Of Fact On February 27, 1980, Respondent converted one of its service station fuel tanks from gasoline to diesel. The tank was cleaned by Garrison Petroleum Equipment Company at Pinellas Park. Respondent paid $67.08 for this service. That same day, Respondent received 5,176 gallons of No. 2 diesel fuel from Jack Russell Oil Company, Inc., of Clearwater, a Union 76 dealer. On March 18, 1980, a standards inspector employed by Petitioner took samples from the Respondent's gasoline and diesel pumps. These samples were delivered to Petitioner's portable laboratory in Clearwater where they were analyzed. The gasoline was found to be satisfactory, but the diesel sample showed fuel contamination. The tests were conducted in accordance with the methods and standards established by Rule 5F-2.01(4)(b), Florida Administrative Code. Specifically, the "flash point" of the diesel sample was 88 degrees F, but must be 125 degrees F or above to meet the established standard. Petitioner's inspector then returned to the Pronto Car Wash station where he issued a stop-sale order to Respondent. Subsequently, the inspector accepted Respondent's cash bond in lieu of fuel confiscation. This procedure, agreed to by both parties, allowed Respondent to pay $865.36 to the State of Florida and retain the contaminated fuel. Respondent originally paid $5,286.25 for 5,176 gallons of diesel fuel. He had sold 736 gallons of this amount at the time of the stop-sale order on March 18, 1980. Total sales of this diesel fuel amounted to $865.36, which was the amount of bond demanded by Petitioner. Respondent paid $200 to Patriot Oil, Inc., to remove the contaminated fuel, but received a $3,225 credit for this fuel. Respondent does not deny that the fuel was contaminated, but seeks to establish that he acted in good faith. Respondent had the tank cleaned prior to the diesel changeover and dealt with established tank cleaning and fuel wholesaling companies. In addition, he kept the tank locked at all times after delivery of the fuel. Respondent does not contest forfeiture of his bond, but seeks refunds of state and federal taxes paid on the unsold fuel. However, Respondent was correctly informed that refund of tax payments will require him to communicate with agencies which are not parties to this proceeding.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its order declaring forfeiture of Respondent's $865.36 bond posted in lieu of confiscation of contaminated diesel fuel. RECOMMENDED this 7th day of August, 1980, in Tallahassee, Florida. COPIES FURNISHED: Stephenson Anderson Pronto Car Wash 220 34th Street North St. Petersburg, Florida 33713 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-8584
Findings Of Fact Frank Gish operates Gish's Exxon service station, which is located at 400 Ridgewood Avenue, Holly Hill, Florida. Gish's Exxon service station purchases all of its gasoline from the Respondent, Widmaier Oil Company. On or about February 17, 1982, one of the Department's employees performed a routine inspection at Gish's Exxon service station. Samples were taken from each of the station's gasoline pumps and forwarded to a mobile laboratory. One of the samples taken was from the pump labeled "Exxon Unleaded." An examination of this sample was performed on the same date. The lead content of the sample was found to be .09 grams per gallon. After this analysis was performed, the remainder of the sample was forwarded to the Department's laboratory in Tallahassee for more detailed examination. Personnel at the Department's laboratory in Tallahassee performed a precise X-ray examination of the sample. American Society for Testing Materials standards were applied in conducting the examination. The lead content of the sample was found to be .098 grams per gallon. The Department's rules require that gasoline sold as unleaded gasoline may not contain more than .05 grams of lead per gallon Rule 5F-2.01(1)(j), Florida Administrative Code. The Department's testing techniques have a "reproducibility factor" or error factor of up to .034 grams per gallon. Thus, the Department does not take action based upon tests that it runs unless the tests reveal a lead content of more than .084 grams per gallon. The samples taken from Gish's Exxon service station exceeded this amount, and a "Stop Sale" order was issued. Widmaier Oil Company posted a bond in the amount of one thousand dollars ($1,000) with the Department, so that the gasoline could be sold as "leaded gasoline." Widmaier Oil Company has agreed to accept responsibility for the selling of any illegal product as might be determined in this proceeding. No evidence was offered at the hearing from which it could be determined how the unleaded gasoline being sold at Gish's Exxon service station came to have an excessive lead content. Respondent contended that the gasoline may have been contaminated by the Petitioner's agents wrongly placing samples of gasoline that had been taken from a leaded pump into the unleaded tank. This contention is not supported by any evidence, and it appears that the samples taken by the Respondent's agents were not sufficient in volume to have raised the lead content in the unleaded tank to a level that would have violated the Department's standards.
The Issue On February 24, 1987, the Petitioner posted a bond in the amount of $844.80 in lieu of confiscation of 1600 gallons of diesel fuel that was found to be below standard. The ultimate issue in this case is whether some or all of the bond should be refunded to the Petitioner. At the hearing the Petitioner testified on his own behalf. He did not call any other witnesses and did not offer any exhibits. The Respondent presented the testimony of two witnesses and offered one composite exhibit which was received in evidence without objection. Neither party requested a transcript of the hearing and both parties waived the right to file proposed recommended orders. Several days after the hearing, the Petitioner mailed to the Hearing Officer a copy of a letter written by an employee of the Department of Agriculture and Consumer Services regarding this matter. I have not based any findings of fact on the information in that letter because it was not received in evidence at the time of the hearing
Findings Of Fact Based on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. On November 17, 1986, an employee of the Department of Agriculture and Consumer Services (hereinafter "Department") inspected various fuels offered for sale at the Mobile Service Station located at 1-75 and State Road 236. The inspection revealed that a quantity of diesel fuel offered for sale at that service station was below standards. On November 18, 1986, an employee of the Department returned to the service station described above and issued a Stop Sale Notice regarding the substandard diesel fuel, placed a seal on the pump to prevent further retail sale of the substandard diesel fuel, and took a second sample of the diesel fuel for the purpose of confirmation testing. The second sample of the diesel fuel was also found to be below standards. The service station described above is owned by the Petitioner. The Petitioner leases the station to an operator and delivers the fuel that is sold at the service station. On November 18, 1987, when the Stop Sale Notice was issued, the person on duty at the service station called Petitioner's office to advise Petitioner that the Stop Sale Notice had been issued and that the diesel pump had been sealed. Mr. Glenn Jones, the president of Petitioner, was not at the office at the time of that call, but was informed about the Stop Sale Notice within the next few days. On February 24, 1987, another representative of the Department visited the subject service station and on that day Mr. Glenn Jones signed a Department form titled Release Notice or Agreement and posted a bond in the amount of $844.80. The terms and conditions of the bond are not part of the evidence in this case. Thereupon, the Department removed the seal from the diesel pump at the subject service station and the 1600 gallons of diesel fuel were released to the Petitioner. During the period between November 18, 1986, and February 24, 1987, diesel fuel could not be sold to retail customers at the subject service station because the diesel fuel pump was sealed. This inability to sell diesel fuel to retail customers for over 90 days caused the service station to lose a substantial amount of business. In the normal course of events, within no more than one week from the time a Stop Sale Notice is issued the owner of substandard fuel can arrange to post a bond and have the seal removed from the fuel pump. It is very unusual for it to take more than 90 days as it did in this case. Several circumstances contributed to the unusual delays in this case. Among those circumstances were the fact that during the period from November 18, 1986, to February 24, 1987, both Mr. Glenn Jones and the Department employee who was supposed to follow up on this matter suffered from serious illnesses. The matter was further complicated by the fact that the fuel samples were taken by a mobile testing unit and the mobile testing unit moved on to another area shortly after the samples in this case were taken. There is no competent substantial evidence in the record of this case regarding the retail price of the substandard diesel fuel which was the subject of the Stop Sale Notice on November 18, 1986, nor is there any evidence as to the amount of such fuel, if any, that was sold to the public.
Recommendation Based on all of the foregoing, it is recommended that the Department of Agriculture and Consumer Services issue a final order in this case to the effect that the petitioner, Glenn I. Jones, Inc., is entitled to a refund of the full amount of the bond it posted on February 24, 1987, in the amount of $844.80. DONE AND ENTERED this 9th day of June, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987. COPIES FURNISHED: Mr. Glenn I. Jones Glenn I. Jones, Inc. Post Office Box 549 Lake City, Florida 32055 Harry Lewis Michaels, Esquire Senior Attorney Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32399-0800 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
