Findings Of Fact The Petitioner holds a valid special fuel dealer's license issued by the Respondent. The license was issued during approximately March, 1972. The Respondent conducted an audit of Petitioner's sales operations, and assessed special fuel taxes, plus penalty, on approximately 264,973 gallons of special fuel for which the Respondent contended inadequate account was given. 29,166 gallons of the special fuel involved in the assessment was sold to local oil field drillers. These sales are reflected in invoices which were received in evidence as Joint Exhibit 1. This fuel was used for industrial and commercial purposes, and not for the propulsion of motor vehicles on the public highways of the State of Florida. 161,900 gallons of the special fuel involved in this assessment was sold to Ard Oil Company, Summerdale, Alabama. Petitioner had every reason to believe that Ard Oil Company held a valid license as a dealer of special fuels in the State of Florida. Petitioner took reasonable steps to insure himself as to Ard's status, and received no instructions from the Respondent as to steps that could be taken to identify persons who were not properly licensed as special fuel dealers. 11,700 gallons of the special fuel involved in this assessment was sold to Hagler Grocery. All subsequent sales made by Hagler Grocery were for off- road, agricultural uses. During July, 1973, 5,000 gallons of the Petitioner's special fuel was mistakenly mixed with gasoline. The mixing rendered the special fuel unusable, and it was emptied onto Petitioner's property. This 5,000 gallons of fuel was never sold by the Petitioner, and was never used. On one occasion during the period of the audit, 5,000 gallons of special fuel leaked from one of the Petitioner's storage tanks due to a valve being left open erroneously. This fuel was never sold by the Petitioner, and was never used. During the period covered by the audit involved in this case, the Petitioner sold more than 5,000,000 gallons of special fuel. The Petitioner donates approximately 2,000 - 3,000 gallons of fuel yearly to the local fire department for training purposes. The Petitioner rinses his tanks periodically to keep down the lead content, and this results in some loss in special fuel. The Petitioner loses approximately 5 gallons of special fuel in each loading operation. The Petitioner made effort to account for all special fuel which came into his possession. Less than one percent of the fuel that came into his possession during the audit period has not been accounted for. It is reasonable to conclude, that 52,207 gallons of the Petitioner's special fuel was lost due to spillage, flushing operations, and donations to the local fire department. There was no evidence offered at the hearing from which it could be determined that any unaccounted fuel was used for a taxable purpose, or for any purpose.
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
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 issues for determination are whether the emergency suspension of Respondents' licenses was proper and whether revocation of those licenses is required.
Findings Of Fact Respondent Robinson, an authorized Chevron representative, is the sole proprietor of Jack A. Robinson, Distributor. Respondent R&R Partnership (R&R) is a partnership between Jack A. Robinson and Dee Ann Rich (Rich). Respondent I-10 Corporation (Stacks) is a subchapter S corporation in which Respondent Robinson is a 50 percent shareholder. Rich is the general manager of Jack A. Robinson, Distributor and exercises administrative responsibilities with regard to Respondents Stacks and R & R Corporation. Robinson holds Special Fuel Dealer's License No. 10 Wholesaler's License No. 09000950/9356 issued by Petitioner. Robinson sells diesel fuel and gasoline at wholesale to I unrelated parties. I products at retail. Robinson admits in response to Counts III, IV, VI, VII, VIII, IX, X, XI, XII, XVI, XIX, XXII, XXIII, XXIV, XXVII, and XXX, of the Notice To Show Cause in DOAH Case No. 93-1563 that $210,876.19 of tax remains due and owing. Rich is Jack A. Robinson's step supervising and preparing tax returns for Robinson. With regard to the $210,876.19 admitted as due and owing, these state funds were collected by Respondent Jack A. Robinson as an agent for the State of Florida but, instead of being remitted to the state, these funds were spent by Respondent in the course of business operation. DOAH Case No. 93-1563 In response to Counts I, II, V, XV, XVII, XXI, XVI, XXVIII, and XXIX of the Notice To Show Cause in DOAH Case No. 93 that $103,452.71 tax is due. As to Count I, the balance for the tax return period of February 1990, for motor fuel tax due is $2,524.14. In regard to Count II, Respondent also owes motor fuel tax in the amount of $26,839.71 for the tax return period of March, 1990. Although Rich requested Respondent's bank to make the appropriate electronic funds transfer to Petitioner, the amount was not received by Petitioner and no explanation was provided by Respondent for the failure of Petitioner to receive this amount. As to Count V, Respondent owes a total motor fuel tax of $12,900.27. The previous total of $36,232.69 was reduced by a late partial payment of $11,562.53, and an additional payment of $11,769.87 on September 25, 1991. No payment of tax was made for the period of March 1992. As to Count XIV, Respondent Robinson filed a tax return for January 1993, motor fuel local option tax in the month of February 1993. The return showed a total tax due of $21,044.62. A collection allowance of $148.56 is shown deducted. No proof of payment of the tax was presented. In regard to Count XVII, a return for the tax period of March 1990, was filed on behalf of Respondent Robinson, declaring a total special fuel tax due of $23,572.82. No evidence was presented that payment was actually made, although Rich testified that a wire transfer payment of that amount was requested by Respondent. With regard to Respondent Robinson, the amounts of tax admitted in responsive pleading together with all counts of the Notice To Show Cause where no evidence or allegation of payment was presented total: Admitted in pleading $210,876.19 Admitted owing for March of 1990 in Motor Fuel and Special Fuel Tax $ 50,412.53 Copies of Returns introduced and alleged to have been filed, but unsupported by Petitioner's records and otherwise unsubstan- tiated by proof (for August of 1992 and January of 1993). $ 35,655.06 No proof of payment presented for balance of November of 1990 tax. $ 12,900.27 Admitted, paid less than due for January 1990; August 1990; and November, 1990. $ 8,058.52 This amount does not include applicable penalties and interest. DOAH Case No. 93-1565 Counts I through IV are admitted by Respondent R & R Partnership as to the amounts owned for a total tax due of $9,189.12. This amount does not include applicable penalties and accrued interest. While R & R reported taxes due on Respondent Robinson's returns, no proof was submitted that these taxes were paid to Petitioner. For the tax period of January, 1993, Rich maintained that a return was filed on behalf of R & R partnership and payment made. However, the copy of the payment check presented at hearing had "2/93" written in pencil as the date of the check and no evidence was presented that the check was presented for payment to Respondent's bank. DOAH CASE NO. 93-1564 With regard to I allegations of Counts I, II, III, IV, V, VII, VIII, X, XI, and XII. As to Counts VI and IX, Respondent denies only that there was improper reporting, not that the amount of tax is not due. Respondent maintains that all taxes collected by Stacks were paid to Respondent Robinson and reported on those returns. The periods of January 1990; February 1990; March 1990; April 1990; August 1990; November 1990; February 1992; correspond to the counts of the Notice To Show Cause to which Stacks denies all allegations. These periods and denied counts match precisely with periods in Counts IX, X, XI, XII, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, of the Notice To Show Cause filed against Respondent Robinson. Robinson admits Counts IX, X, XI, XII, XVI, XVII, XIX, XX, and XXII and presented no proof of payment at hearing with regard to Count XV and XVII. This fact, coupled with testimony that Stacks and R & R taxes were paid to Robinson and reported as line items on his returns, show that Stacks does owe the taxes claimed by Petitioner in the amount of $36,029.45 exclusive of interest and penalties. Debra Swift, a Certified Public Accountant, employed by Petitioner, personally reviewed records of Petitioner in determining the amounts of tax, penalty and interest due from each Respondent. All payments received by Petitioner were credited by Swift in performing her calculations.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking the fuel licenses of all three Respondents. DONE AND ENTERED this 13th day of May, 1993, in Tallahassee, Leon County, Florida. DON W. 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 13th day of May, 1993. APPENDIX The following constitutes my rulings pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-12. Adopted, though not verbatim. 13.-15. Accepted. 16.-22. Accepted. Respondent's Proposed Findings: 1. Rejected, no record citation. 2.-3. Adopted. 4. Accepted, except for last sentence which is rejected as legal conclusion. 5.-7. Adopted. 8.-9. Rejected, subordinate to HO findings on this point. 10.-12. Rejected, weight of the evidence. 13. Rejected, relevancy. 14.-16. Rejected, subordinate to HO findings. 17. Adopted by reference. 18.-21. Rejected, subordinate to HO findings. 22.-24. Rejected, weight of the evidence, no citation. 25._38. Rejected, subordinate to HO findings. 39.-40. Rejected, weight of the evidence. 41.-42. Adopted by reference. 43.-44. Rejected, subordinate, misconstruction of testimony. 45. Rejected, conclusion of law, weight of the evidence. 46.-48. Rejected, subordinate, argumentative, relevancy. COPIES FURNISHED: Lealand L. McCharen Assistant Attorney General Department of Legal Affairs The Capitol-Tax Section Tallahassee, FL 32399-1050 Timothy J. Warfel Messer, Vickers Suite 701 First Florida Bank Building 215 South Monroe Street Post Office Box 1878 Tallahassee, FL 32302 Linda Lettera General Counsel 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs Executive Director 104 Carlton Building Tallahassee, FL 32399-0100
The Issue The issue in this case is whether or not Petitioner is entitled to a refund of the bond it posted in lieu of confiscation of allegedly mislabelled gasoline products.
Findings Of Fact Petitioner, AGI Service Corporation, owns and operates a Citgo service station located at 1599 West Flagler Street in Miami, Florida. The service station sells regular unleaded, unleaded plus and unleaded premium gasoline to the public. On February 18, 1991, James Carpinelli, the Respondent's inspector, visited the station to conduct an inspection and obtain samples of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Carpinelli took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Respondent's laboratory and were tested to determine whether they met Departmental standards for each type of gasoline. The Petitioner's "premium unleaded" pump indicated the octane or Anti Knock Index of the gasoline was 93. The "regular unleaded" pump indicated that the octane level was 87. The laboratory analysis of the samples revealed that the octane level of the gasoline taken from the "premium unleaded" pump was 87.4. The octane level of the gasoline taken from the "regular unleaded" pump was 93.0. Upon discovering the discrepancy in the octane levels, the Respondent seized the gasoline and immediately allowed the Petitioner to post a bond in the amount of $1,000. Upon the posting of the bond, the product was released back to the possession of the Petitioner and was allowed to be sold after the pumps were relabelled. Petitioner acquired ownership of the service station four days prior to the time of the inspection. At the time they opened the station, the new owners labelled the pumps based upon the information provided to them by the prior owners. The new owners had limited experience in the petroleum business and followed the guidance of the prior owners regarding labelling the pumps. It is clear that the pumps were inadvertently mislabelled based upon the information provided by the prior owners. The new owners sold "premium unleaded" at the price of "regular unleaded" and visa versa. Because more "premium unleaded" was sold at the price for regular, Petitioner lost money as a result of the mislabelling. The Department seeks to assess the full amount of the bond against the Petitioner in this proceeding. Respondent calculated the number of gallons of mislabelled gasoline that was sold based upon a delivery date of February 13, 1991. Those calculations indicate that 2,498 gallons were sold at a price of $1.259 per gallon. However, Respondent's calculations appear to begin at a time prior to Petitioner's ownership of the station. No evidence was presented as to how many gallons were sold while Petitioner owned the station. In addition, it is not clear when the mislabeling was done. Thus, no clear evidence was presented as to how many mislabeled gallons were sold by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Agriculture and Consumer Services enter a Final Order granting the request of the Respondent for a refund of the bond posted and that the Department rescind its assessment in this case. DONE and ENTERED this 4th day of October, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of October, 1991. COPIES FURNISHED: LOUIS PASCALI AND DONATO PASCALI QUALIFIED REPRESENTATIVES AGI SERVICE CORPORATION 1599 WEST FLAGLER STREET MIAMI, FL 33147 JAMES R. KELLY, ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES ROOM 514, 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 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800 BRENDA HYATT, CHIEF BUREAU OF LICENSING & BOND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 508 MAYO BUILDING TALLAHASSEE, FL 32399-0800
Findings Of Fact Early on the morning of September 3, 1982, Mr. Robert W. Taylor, a driver for Fleetwing Petroleum Company, loaded his truck at the Marathon Oil Company Refinery terminal in Tampa, Florida, for the Triangle Refineries, Inc., with 2,001 gallons of super-unleaded gasoline, 2,000 gallons of unleaded regular gasoline, and 3,501 gallons of regular leaded gasoline. The super-unleaded was loaded into Compartment 1 of four compartments on the trailer, which holds a maximum of 2,500 gallons. On the previous day, this trailer had been used by another driver, Floyd Mills; and before loading the trailer at the terminal, he, Taylor, personally flushed out the tanks to insure no contamination. After completing the loading procedure, Mr. Taylor drove directly to the Hardee's station at 24203 Highway 60 E, Lake Wales, Florida, where it was loaded into the station's tanks. The delivery consisted of 3,501 gallons of regular gas, 2,000 gallons of unleaded gas, and 2,001 gallons of super-unleaded gas, as reflected on the delivery log for that date. This was somewhat unusual, since it was the first time Mr. Taylor had ever taken super-unleaded to that station. The receipt for delivery, executed by Walter Winslett, Jr., on September 3, 1982, shows that the quantities and qualities described above were received. During a routine inspection of the Hardee station on September 29, 1982, Mr. Willis Aldridge, an inspector with the Florida Department of Agriculture, took samples of all the gas at the station, including the regular, the unleaded, and the Super-unleaded. These samples, taken in the normal manner, were sealed inside a case with a lead wire seal, identified, and sent off to the lab at Tallahassee. Several days later, on October 5, 1982, Mr. Aldridge received a phone call from the Department of Agriculture laboratory in Tallahassee advising him that the super-unleaded product taken from the Hardee station exceeded the lead tolerance and that he should immediately stop its sale. Thereafter, the following day, he went back to the Hardee station, where talking with the manager, Mr. Winslett, he told him what the problem was, issued a stop sale notice for that grade gas, and sealed the pump dispensing it. Mr. Winslett stated this one load of super-unleaded was the only one he had ever received. The Stop Sale Notice identifies, inter alia, the product, the brand name, the pump number, and the amount still in the tank. This last figure is determined by sticking a gauging stick into the tank. Since this was the first time the station had carried super-unleaded, 2,001 gallons had been delivered, and 998 gallons remained, that meant that slightly over 1,000 gallons had been sold of that product. At this point, Mr. Aldridge advised the station operator he could either give up what was in the ground or pay a penalty on the amount sold to a maximum of $1,000. Since this grade gasoline was selling at that time for $1.32 a gallon, the value of the gasoline still in the ground was greater than the penalty. When the Stop Sale Notice was issued on October 6, 1982, Fleetwing officials requested a few days to consider their options, and on October 14, 1982, advised Mr. Aldridge that they elected to post bond in the penalty amount ($1,000) and would meet him at the station the next morning. When he arrived, Mr. Aldridge met with Mr. C. W. May, Jr., a representative of Fleetwing Petroleum, who posted the required bond, and the remaining 998 gallons of super- unleaded were released. The product in question was tested at the Florida Department of Agriculture Lab Complex in Tallahassee under the supervision of Mr. Ben W. Bowen, of the Lab Testing Section. The tests seen on the super-unleaded sample, utilizing the American Society of Testing and Materials standards adopted by the State of Florida, revealed this particular sample contained 0.15 gram of lead per gallon. Two tests were utilized. An initial field test was used to scrutinize the samples as they came in. If any sample failed this test, a second test utilizing the X-ray florescence method is used. Since the maximum allowed is 0.05 gram per gallon, this sample had three times the lead limit and was therefore subject to confiscation. The effects of using excessively leaded gasoline in cars designed to burn unleaded gas are: (1) the calalytic converter will be ruined, and (2) damage to the engine with continued use. Replacement of a catalytic converter could run to several hundred dollars. The contaminated gasoline was the property of, and offered for sale by, the Respondent, Fleetwing Corporation. The pumps used for dispensing were identified as to type of gasoline and bore the Fleetwing logo.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be required to forfeit $500 of the $1,000 bond posted and the unforfeited $500 be returned to the Respondent. RECOMMENDED this 25th day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Richard C. May, Esquire 4110 South Florida Avenue Suite B Lakeland, Florida 33803 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact In a letter dated April 13, 1990, the Department informed the Petitioner, Cherokee Rental And Construction Co., Inc., that it was denying the Petitioner's request for refund of the $95.00 fuel tax and civil penalty assessment it had previously paid to the Department. In a letter received by the Department on February 13, 1990, the Petitioner requested an administrative hearing to contest the Department's decision. The address included on the Petitioner's letter was the address used by the Department to notify the Petitioner of its decision to deny its request for a refund. A Notice of Assignment and Order was issued on June 1, 1990, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Petitioner at the address listed in its letter requesting a formal hearing. Neither party responded to the Notice. On July 12, 1990, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Petitioner at the address listed in his letter requesting a formal hearing. The Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Department was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned that he would not be able to appear at the formal hearing. After waiting fifteen minutes for the Petitioner to appear, the hearing was commenced. At the commencement of the formal hearing the Department was informed that it could proceed with the formal hearing or, since Petitioner had the burden of proof in this case, move for dismissal of the case. The Department elected to make an ore tenus motion for dismissal. The Department was informed that a Recommended Order would be issued recommending dismissal of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing the Petitioner's request for hearing in this case for failure to appear at the final hearing. RECOMMENDED this 18th day of October, 1990, in Tallahassee, Leon County, 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 October, 1990. COPIES FURNISHED: Bill Read Cherokee Rental & Construction Co., Inc. Post Office Box 850606 Mobile, Alabama 36685 Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire 562 Haydon Burns Building Tallahassee, Florida 32399-0458
Findings Of Fact On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel. The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at 50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+. Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated. The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment. Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline. DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc. Post Office Box 1007 Tifton, Georgia
Findings Of Fact On February 16, 1981, John Flanagan, a Graduate Chemist and Inspector for the Petitioner, Department of Agriculture and Consumer Services, (hereafter "Department") took a gasoline sample (R-247) from an unleaded pump identified as 45321" at the June Avenue Service Station, 1109 West U.S. 98, Panama City, Florida. This sample was field tested and then forwarded to the lab in Tallahassee where it was again tested on February 20, 1981 and found to be contaminated with leaded gasoline. (Testimony of Whitton, Flanagan, Petitioner's Composite Exhibit 1). As a result of the field test the Department issued a stop sale notice to Mr. Al Barry on February 16, 1981. The laboratory analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials ("ASTN") for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 0.088 gram of lead per gallon and therefore violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. 4 The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of the remaining 1,600 gallons of illegal gasoline for sale as leaded regular. The Respondent has no knowledge as to how the unleaded gasoline was contaminated. The gasoline was purchased from the Hill Petroleum Company and supplied by the Respondent to the June Avenue Service Station as unleaded gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its 1,000 bond which was required to be posted in lieu of confiscation of approximately 1,600 gallons of contaminated unleaded gasoline. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH 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 21st day of September, 1981. COPIES FURNISHED: Les McLeod, Esquire Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 William D. Dickens Dickens Oil Company 1706 Maple Avenue Panama City, Florida 32405 John Whitton, Chief Bureau of Petroleum Inspection Division of Standards Mayo Building Tallahassee, Florida 32301
The Issue Was the amendment to Section 12B-5.01, Florida Administrative Code adopted on November 8, 1978, adopted in violation of the procedural requirements of Section 120.54, Florida Statutes? Is the amendment to Section 12B-5.01, Florida Administrative Code an invalid exercise of the Department's delegated legislative authority?
Findings Of Fact Miami Tiresoles, Inc. sells both new and retreaded tires for cars and trucks. The company also sells gasoline and diesel fuel. It is licensed by the Department as a dealer in special fuels. As far as this case is concerned special fuel is number 2 diesel oil. Unless an exemption is met each gallon of special fuel sold by MTS is taxed by the Department at a rate of 8 cents per gallon. The Department has given MTS a revised notice of proposed assessment of tax for the sale of special fuel in the amount of $4,551.88 plus a penalty of $455.48 and interest in the amount of $735.11 (through April 21, 1980). The tax figure on the assessment appears to reflect a typographical error. The Department's records (Exhibit A) indicate that for the period in question 2/ MTS sold 56,936 gallons of special fuel subject to tax according to the Department's interpretation of the law. If a tax at a rate of 8 cents per gallon is due, then the amount due should be $4,554.88 and not $4,551.88. The correct tax figure is reflected on the Department's work sheets but was probably misread when the figure was transferred to the revised Notice of Assessment issued on April 21, 1980. The foregoing assessment is based on MTS' invoices which reflect sales of special fuel to customers in amounts of more than 110 gallons at one time. Those sales were made to MTS customers who have filed with MTS a document called "Purchaser's Exemption Certificate". A typical example of such a certificate states: PURCHASER'S EXEMPTION CERTIFICATE The undersigned hereby certifies that the motor duel (sic) and/or special fuel pur- chased on 1-19-79 is for the following purpose as checked in the space provided. (X) Purchased for home, industrial, com- mercial, agricultural or marine purposes for consumption other than for the propul- sion of a motor vehicle. ( ) Purchased at bulk plant or terminal in volumes of not more than 110 gallons for delivery into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than for the pro- pulsion of a motor vehicle. Purchaser is aware that if this exemption if (sic) falsely claimed, or if this certi- ficate is not rescinded at the time he fails to quality (sic) for the exemption, he shall be liable for the taxes imposed under Chapter 206, F.S. Furthermore, by issuing this certificate the purchaser also certifies that he does not have any motor vehicles which use special fuel for propulsion. This certificate is to continue in force until revoked by written notice to MIAMI TIRESOLES, INC. Purchaser: Trade Name: A ACME SANDBLASTING, INC. Street Address: 9521 W. Oakmont Dr., Hialeah, Fla. 33015 BY: /s/ The industrial customers of MTS (that is those who have filed an exemption certificate) are engaged in the construction business. They use the diesel fuel to operate bulldozers, front-end loaders, back hoes, sandblasters and similar equipment. None of the fuel is used for the operation of motor vehicles on the public highways of Florida. All the fuel in question is sold on the premises of MTS. At the time of sale it is placed either in the fuel tank of a particular piece of equipment such as a back hoe, or it is placed in a fuel storage tank mounted on the back of a truck. The storage tanks are not connected so they can provide fuel for the propulsion of the truck. They are used to transport fuel to the purchaser's particular job site. The storage tanks have a capacity of between 100 to 300 gallons. MTS does not have delivery trucks of its own and has no facilities for taking fuel to its customers job sites. A single invoice of MTS which indicates a sale of 110 gallons of special fuel to an individual customer is frequently the result of a sale where multiple fuel tanks are filled at one time. For instance, the customer may have a back hoe sitting on the rear of a flat-bed truck. He will fill the fuel tank in his back hoe and then perhaps fill an additional 55 gallon drum or two which would be on the truck. This would occur all in one transaction. The reason why the Department seeks to tax special fuel sold by MTS to its industrial customers in an amount exceeding 110 gallons is because the fuel was placed in the customers' own fuel tanks on the premises of MTS and not on the premises of the customer or at the customer's job site. The amendment to Section 12B-5.01, Florida Administrative Code challenged by Petitioner here was adopted by the Governor and Cabinet, sitting as the head of the Department of Revenue, on November 8, 1978. No hearing was held on the amendment's adoption because no person requested one. Notice of the Department's intent to adopt the rule was given in the October 13, 1978 issue of the Florida Administrative Weekly. At the time the notice was published a copy of the amendment was available for inspection and copying by the public. The notice published in the Florida Administrative Weekly stated: DEPARTMENT OF REVENUE, DIVISION OF MISCELLANEOUS TAX, MOTOR FUEL TAX Rule 12B-5.01 TITLE: Specific Exemption PURPOSE AND EFFECT: To amend the rule which implements Subsection 206.87(4)(a) & (b), F.S. to clarify interpretation of the law. SUMMARY: Provides specifically the requirements necessary in order for the licensed dealer of special fuel to make an exempt sale for home, industrial, commercial, agricultural, or marine purposes and exempt sales of not more than 110 gallons at his place of business, and by cross reference, the records needed to be maintained by the licensed dealer to substantiate the sale. SPECIFIC LEGAL AUTHORITY UNDER WHICH THE ADOPTION IS AUTHORIZED AND THE LAW BEING IMPLEMENTED, INTERPRETED OR MADE SPECIFIC: SPECIFIC AUTHORITY: 206.14(1), 206.59, FS. LAW IMPLEMENTED: 206.87(4)(a)(b), FS. ESTIMATE OF ECONOMIC IMPACT ON ALL AFFECTED PERSONS: There will be no significant economic impact. IF REQUESTED, A HEARING WILL BE HELD AT: TIME: 10:00 A.M. PLACE: The New Capitol, Lower Level 3 DATE: November 9, 1978 A COPY OF THE PROPOSED RULE AND THE ECONOMIC IMPACT STATEMENT MAY BE OBTAINED BY WRITING TO: L. N. Thomas, Chief, Motor Fuel Tax Bureau, Department of Revenue, Carlton Building, Tallahassee, Florida 32304 Individual notices of the proposed rule making were not sent to licensed special fuel dealers in Florida. On October 10, 1978, the Department sent the following items to the Joint Administrative Procedures Committee: A copy of the proposed amendment to Rule l2B-5.01. The notice to appear in the Florida Administrative Weekly. The Economic Impact Statement. The "Summary and Justification Sheet" (apparently the Department's term for the facts and circumstances justifying the proposed rules). The following shows how the Department's amendment adopted on November 8, 1978, changed Section 12B-5.01, Florida Administrative Code. Words stricken were deleted; words underlined were added. 12B-5.01 Specific Exemptions. (1) - (2) - No change. HOMES, INDUSTRIAL. COMMERCIAL, AGRICULTURAL OR MARINE. Any sale of special fuel by a licensed dealer, regardless of quantity, when such fuel is to be consumed exclusively for home, industrial, commercial, agricultural, or marine purposes, is exempt from tax, provided the sale is made by a licensed dealer who delivers the fuel into the customer's storage facility, which must be located on the customer's premises, place of business, or job site. (Cross Reference - Rule 12B-5.03(1). (7)(b) - (6) - No change. (7) SALES OF 110 GALLONS OR LESS. A licensed dealer may deliver, at his place of business, tax free, not more than 110 gallons of special fuel to a person who is not a licensed dealer of special fuel, provided the fuel is placed into a receptacle which is furnished by the purchaser and which is not connected to the fuel supply system of a motor vehicle. (Cross Reference - Rule 12B-5.03(1), (7)(b) Any licensed dealer of special fuel who, at his place of business, delivers more than 110 gallons of special fuel to a person who is not a licensed dealer of special fuel, shall be liable for and shall pay to the state taxes, penalties and interest on the total quantity sold even though the fuel may not be ultimately used to propel a motor vehicle on the highway.
