The Issue Whether Petitioner owes tax in the amount of $4,554.80 plus a penalty and interest on the sale of special fuel between December 1, 1976, and December 31, 1979.
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 eight cents per gallon. The Department has given BITS 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 eight 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 propulsion of a motor vehicle. Purchaser is aware that if this exemption if (sic) falsely claimed, or if this certificate is not rescinded at the time he fails to quality (sic) for the exemption, he shall be liable for the taxes imposed under Chapter 206, F.S. Furthermore, by issuing this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 (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.
Recommendation Based on the foregoing Findings of Fact and the Conclusions of Law it is recommended that the Department of Revenue enter a final order affirming its assessment for a special fuel tax against the Petitioner in the amount of $4,554.88 plus penalty and interest computed pursuant to Section 206.44, Florida Statutes (1979). DONE and RECOMMENDED this 25th day of March 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 25th day of March 1981.
Findings Of Fact The Petitioner, State of Florida/Department of Agriculture and Consumer Services, is an agency of government which has, among it other responsibilities, the requirement to establish and enforce standards related to minimum allowable Fahrenheit-degree-measured "flash point" as a standard for diesel fuel sold to the motoring public. This regulation is designed to avoid the potential destruction of diesel engines in various types of motor vehicles and other equipment resulting from the use of low flash point diesel fuel which is of an excessively volatile nature, somewhat akin to gasoline, for which the engines are not designed. Excessive stresses generated by burning such volatile fuel in diesel engines can result in their destruction or severe damage and possibly even injuries to operators of vehicles so powered. The Respondent operated a retail gasoline and diesel fuel service station in Ft. Pierce, Florida. Sometime prior to October 1, 1981, a representative of the Petitioner obtained a sample of diesel fuel in the amount of approximately one quart in a clear glass container, which he forwarded to the Petitioner's laboratory for testing. After the results of the laboratory testing became available, a Stop Sale Notice was issued to the Respondent on October 1, 1981, wherein he was informed that he must stop the sale of diesel fuel on the premises of the station at 3224 North Federal Highway, Ft. Pierce, Florida, on the ground that the diesel tested consisted of 90 degree flash point fuel. The parties agreed that total sales before the Stop Sale Notice amounted to more than $1,000 worth of the subject diesel, hence the $1,000 amount of the bond which was posted in lieu of the total confiscation of the product. The Respondent established that the station had recently been opened in July, 1981, after being closed for a substantial period of time. The Respondent was of the belief that the storage tanks had been pumped out and refilled prior to his opening for business and had no complaints regarding the quality of the diesel fuel. Before the tanks were filled he told fuel truck delivery drivers to "stick" the tanks to ascertain if there was any residual fuel or gasoline in them before filling them with new fuel when he opened for business. He was under the impression that this had been done. He also established that he corrected the problem with no hesitation as soon as he was informed that the diesel fuel did not meet legal standards. The Petitioner agreed that the Respondent had not acted in bad faith, but rather this was an inadvertent mistake or oversight on the part of the Respondent which he tried to rectify as soon as he became aware of it. The Respondent has never been found guilty of a violation previously.
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 $500 of the $1,000 bond posted and the unforfeited $500 be returned to the Respondent. DONE and ENTERED this 19th day of July, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982. COPIES FURNISHED: Les McCloud, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Hadley Hartman Post Office Box 443 Stuart, Florida 33494 The Honorable Doyle Conner Commissioner, Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner is a dealer in liquefied petroleum gas (LPG), duly licensed in Florida. Petitioner buys LPG in Florida and resells it to dealers who in turn sell most of it at retail, but use part of it as fuel for their trucks. During the period July 1, 1975, through February 28, 1977, neither petitioner nor any of its customers paid any tax on account of petitioner's sales of LPG, other than LPG used by its customers to propel trucks. Petitioner's customers kept records as to how much LPG was sold by them for home cooking or heating use by their customers, the ultimate consumers. Until the summer of 1977, petitioner's customers who used LPG as truck fuel kept records of how far the trucks so fueled were driven. Using the resulting mileage figure, they calculated the amount of LPG that had been used as truck fuel. Until the summer of 1977, petitioner collected from its customers a tax of eight cents ($.08) per gallon on LPG used as truck fuel. During the period from July 1, 1975, through February 28, 1977, none of petitioner's Florida customers held Florida dealer's licenses, except Gene Lewis Auto Brokers, which obtained a license as a special fuel dealer in August of 1976. Also in August of 1976, Gene Lewis Auto Brokers purchased 2,052 gallons of LPG from petitioner, on which no tax was paid. Thereafter, the same customer bought 41,011 gallons from petitioner in the period ending February, 1977, on which no tax was paid. Petitioner made tax returns monthly, using forms furnished by respondent. With respect to respondent's Form DR-115-F, styled "Special Fuel Sold . . . Within the State to Licensed Dealers Tax-Free," general instructions furnished to petitioner by respondent provided: To be used in support of claims for exemp- tion ... for sales ... to other licensed dealers. Signed resale certificates ... which bear the name and address of the pur- chaser and the number of his dealer's license are required to be retained in the seller's permanent file .... Petitioner's exhibit No. 2. (emphasis supplied) Monthly, petitioner listed on Form DR-115-F the amounts of LPG sold to its Florida customers, less amounts its Florida customers advised had been used to propel trucks. On another form furnished by respondent, Form DR-115-J, petitioner listed monthly, by county, the LPG used by its Florida customers to propel motor vehicles and on which petitioner had collected tax at the rate of eight cents ($.08) per gallon. At the time petitioner filed its monthly tax return, it forwarded to respondent the taxes it had collected from its Florida customers. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's assessment be upheld with respect to petitioner's tax deficiency, except for the portion attributable to sales by petitioner to Gene Lewis Auto Brokers after August of 1976, being three thousand two hundred eighty and eighty-eight hundredths dollars ($3,280.88). That interest and penalty be adjusted accordingly. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. John Radey, Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, except that the evidence did not show that petitioner's customers used LPG for home heating or cooking, only that persons to whom petitioner's customers sold used the LPG in this fashion. Paragraph two of petitioner's proposed findings of fact has been adopted in substance. Paragraph three of petitioner's proposed findings of fact has been adopted in large part. The gist of the information supplied to petitioner by its dealers was that LPG not used by them would be resold to domestic users. Although respondent did not undertake to determine whether petitioner listed the same LPG as taxable and as tax-exempt on the same tax return, there is no reason to believe that petitioner did so. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that petitioner's tax returns were inaccurate as to its customers' status as dealers. The final three paragraphs of petitioner's proposed findings of fact accurately reflect evidence adduced at the hearing, but are not relevant to a decision of this controversy.
The Issue The issue posed for decision herein is whether or not Respondent was selling "polluted" gasoline in violation of the standards set forth in Chapter 525.06, Florida Statutes (1980), and Rule Chapter 5F-2, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980). 2/ The Respondent is a corporation which sells products in the State of Florida at an outlet located at 1050 U.S. 98 North in Brooksville, Florida. On November 11, 1981, a sample of three (3) petroleum products, i.e., regular gasoline, unleaded and diesel fuel was taken from Respondent's location which is known as Chuck's Car Wash. A laboratory analysis by Petitioner revealed that the unleaded gasoline showed a lead content above .110 grams per gallon. This reading is above the .05 gram per gallon maximum allowable lead content as set forth in Rule Subsection 5F-2.01(1)5(j), Florida Administrative Code. An analysis of the regular gasoline revealed an End Point of 494 degrees F. This reading is above the 446 degrees F maximum allowable End Point as set forth in Rule Subsection 5F-2.01(1)(c)4, Florida Administrative Code. Finally, an examination of the diesel product revealed a Flash Point below 60 degrees F. This reading is below the 120 degrees F allowable Flash Point as set forth in Rule Subsection 5F-2.01(3)(b), Florida Administrative Code. The results of these analyses were made known to Respondent and he was afforded the option of either immediately halting the sale of the products or to post a cash bond in the amount of $1,000.00 for 5,900 gallons sold of the above- referred products in lieu of confiscation of the remaining 1,681 gallons of the products. (See Release Notice or Agreement dated November 12, 1981.) Respondent posted a bond in the amount of $1,000.00. In the Release Notice, Respondent was advised that all three (3) products were to be removed from its tanks and new products dropped. Respondent was also afforded the opportunity to remove the no-lead which could he sold as leaded regular with the remaining two (2) products to be used in Respondent's private equipment. Petitioner's inspector who works out of portable laboratory No. 3, Jamie Gillespie, removed the samples from Respondent's tanks and conducted the analyses of the products. Inspector Gillespie made Respondent aware of his findings and his decision to post a Stop Sale Notice of the subject products. Inspector Gillespie obtained the cash bond from Respondent. Use of the above-referred products may cause catalytic converters to become contaminated; restrict exhaust systems and release excessive pollutants in the atmosphere. Use of these products also may clog fuel filters and carburetors. The low Flash Point from the diesel product may cause an engine to "run away" and in some instances may blow the head assembly from a diesel engine. Additionally, use of diesel with such a low Flash Point may contaminate dry injector nozzles and shorten the life of a diesel engine. (Testimony of Gillespie and Morris, inspectors and chemists employed by Petitioner, who conducted analyses of the subject products.) As stated, Respondent did not appear at the hearing to contest or otherwise rebut the charges alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law and the entire record compiled herein, it is RECOMMENDED: That a final order be entered finding the Respondent in violation of Rule Subsections 5F-2.01(1)5(j), 5F-2.01(1)(c)4, and 5F-2.01(3)(b), Florida Administrative Code, and thereby, Respondent should be subjected to the penalties set forth in Section 525.06, Florida Statutes (1980), and the $1,000.00 bond posted be estreated. RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 16th day of April, 1982.
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 the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle on a highway in the State of Florida without vehicle registration and fuel tax registration to operate in the state.
Findings Of Fact On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was stopped on I-10 in Escambia County, Florida at a Department of Transportation weight station. The weight station is the last exit in Florida for westbound vehicles and is the first exit in Florida for eastbound vehicles. The vehicle was not displaying a fuel use tax device, as required by Section 207.004, Florida Statutes, for its interstate operations and was not registered to operate in the State of Florida as required by Chapter 320, Florida Statutes. The driver did not present any fuel use tax registration documentation or International Registration Plan (IRP) registration as an interstate apportioned vehicle.1/ The Department of Transportation Inspector issued a temporary fuel use permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed on its way. The total cost of the temporary permits was $75.00. The owner of the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207, Florida Statutes. See, Section 316.545(4), Florida Statutes. Additionally, while the truck was at the weight station, the Department of Transportation Inspector weighed the vehicle. The truck weighed 42,920 pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for each pound over the legal weight resulting in a penalty of $396.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding that the fee and penalty totaling $521.00 was correctly assessed Unrah Fab, Inc., by the Department of Transportation, under provisions of Sections 207.004 and 316.545, Florida Statutes, and Chapter 320, Florida Statutes. DONE and ENTERED this 1st day of June, 1992, in Tallahassee, Florida. DIANE CLEAVINGER, 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 1st day of June, 1992.
Findings Of Fact Petitioner Auto/Truck Plaza Specialists, Inc., a Florida Corporation, (formerly GHM, Inc. of Baldwin) operates a "truck stop" in Baldwin, Florida, which sells special fuel and motor fuel under a dealer's license issued by the respondent. The firm leases the buildings under an agreement with the Union Oil Company of California. Part of the rental for the leased premises consists of one cent per gallon on sales of special fuels based on monthly reports that reflect fuel inventory at the beginning of the month, gallons acquired during the month, and the amount sold during the month based on manual measurement of the storage tanks. In like manner, the required state monthly tax return is based upon gallons to be accounted for" and consists of basically the same method as used in accounting to Union Oil Company. However, in preparing bimonthly excise tax returns to the Internal Revenue Service, it is unnecessary to show the number of gallons sold, but just the dollar amount of sales. Petitioner used pump meter readings to arrive at federal tax figures computed from daily reports of station personnel who read the pump meters at the beginning and end of each of three eight-hour shifts. The daily reports are recapitulated by petitioner's bookkeepers into monthly reports that take certain adjustments into account, such as fuel that is pumped by mistake into trucks and then replaced in the tanks. The daily reports are subject to mathematical mistakes by station attendants and the meters themselves periodically become defective, thus necessitating repair or replacement. This type of report is used by petitioner also as a comparison of months to see how the business is progressing and to attempt to detect theft by employees. (Testimony of Hires, Morris, Petitioner's Exhibits 2-5) Although petitioner normally purchases all of its special fuel from Union Oil Company, there was a period from June, 1973, through February, 1974, when, due to a shortage of fuel, purchases of some 500,000 gallons were made from five other distributors. Petitioner was under the impression that it paid tax on these purchases because none of the firms asked for its license number and the price charged for the fuel appeared to be an amount sufficient to include the state tax. No taxes were separately stated on the invoices from these firms, but petitioner's license number appeared on some of them. All such purchases were made by checks drawn on petitioner's bank account. The state tax due on later resales of this special fuel was not collected or paid to the state by petitioner. Nevertheless, it is found that petitioner's explanation that it was unaware that tax had not been previously paid to distributors is credible and that there was no intent to purposely evade payment of state taxes. (Testimony of Hires) In the summer of 1976, respondent's tax examiner Heyward R. Steinhauser, learned that sales of special fuels had been made to petitioner without the payment of tax and had not been reported to his agency. Petitioner explained the situation concerning outside purchases to Steinhauser, and the latter thereafter conducted an audit of the firm's books covering the period June, 1973, through June, 1976. He examined petitioner's check register to determine how much excise tax had been paid to the federal government and determined that this amount corresponded substantially with the number of gallons sold as reflected on the monthly meter reading reports. During this audit, Steinhauser found no evidence of outside purchases except that reflected by checks issued by petitioner to the five firms during the latter half of 1973 and 1974. However, Steinhauser made no effort to verify the totals set forth on the monthly meter reports as far as accuracy of computation. Petitioner made all of its records available for the audit and offered the daily reports to Steinhauser which he declined to use due to their bulk. (Testimony of Hires, Steinhauser). An informal meeting was held between petitioner and representatives of respondent on September 28, 1976, based on a proposed assessment resulting from the audit. At this meeting, certain credits were allowed to petitioner. The meeting was followed by a formal Notice of Proposed Assessment, dated November 22, 1976, wherein respondent claimed tax due in the amount of $48,016.22, interest in the amount of $15,248.30, and penalties of $6,196.76, for a total of $69,461.01. After deducting a $10,000 payment made by petitioner on September 28, 1976, the total amount due as stated in the assessment letter was $60,316.07. This was followed by a subsequent meeting on February 2, 1977, whereby petitioner sought further adjustment of the proposed assessment. A letter of February 15, 1977, from respondent's audit supervisor of the Motor Fuel Tax Bureau reasserted the original assessment, plus additional interest making the total allegedly due, as of February 10, 1977, $61,582.00. In that letter, petitioner was advised that since the daily pump readings or reports had not been made available to reconcile any discrepancies in the monthly reports, no adjustment could be made as to the proposed assessment. The reason for the unavailability of the daily records was that they had been inadvertently destroyed by an employee of the petitioner several months after the audit. Another meeting was held on March 29, 1977, which apparently was unsuccessful because a further letter of respondent, dated March 31, 1977, again asserted the previous amount of tax due, plus additional interest, making a total due of $62,198.07. Thereafter, on April 28, 1977, petitioner filed its petition for an administrative hearing. (Testimony of Steinhauser, Hires, Morris, Petitioner's Exhibits 1, 9-10) At the hearing, petitioner submitted its own audit based on fuel purchases, its check register, and invoices from Union Oil Company and outside suppliers. After computing exempt purchases, collection fees, and taxes already paid to the state, petitioner admitted that taxes had been due in the total amount of $42,342, based on sales of 541,825 gallons of fuel. The state's figures had based tax due on 592,587 gallons sold. After deductions of the $10,000 payment made on September 28, 1976, and a further payment of $30,000 on August 11, 1977, plus penalties and interest, petitioner admits that a sum of $11,390 is still due and owing. A further audit presented by respondent at the hearing reflects a total due at the end of September, 1977, of $47,699.44. Petitioner pointed out at the hearing that various mistakes in addition had been made in the monthly meter reports utilized by respondent in arriving at its assessment. However, neither petitioner nor respondent had verified the accuracy of these figures. Accordingly, the Hearing Officer requested that this be accomplished subsequent to hearing and that a report be furnished as a late- filed exhibit. Petitioner submitted such a report on November 15, 1977, which shows that mathematical mistakes in the reports were made to the extent that they reflected 56,595.5 more gallons sold during the audit period than was actually the case. This figure corresponds favorably with petitioner's contention based on its audit that it had sold some 51,000 gallons less than that asserted by respondent. Respondent has not contested the late-filed exhibit of petitioner and it is found that the figures reflected therein are correct. (Testimony of Morris, Petitioner's Exhibits 6, 7, 11, Respondent's Exhibits 1, 2)
Recommendation That petitioner be held liable for special fuels tax, penalty and interest in the amount of $11,390. DONE and ENTERED this 29th day of November, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Linder Smith, Jr. Esquire 1320 Atlantic Bank Building Jacksonville, Florida 32202 Harold F.X. Purnell, Esquire Assistant Attorney General Department of Legal Affairs The Capital Tallahassee, Florida 32304
Findings Of Fact Silver Sand is in the aggregate business. A major portion of this business involves the trucking of sand, rock, and shell. Diesel fuel, a special fuel, is used in these trucking operations. Approximately fifteen percent of the trucking takes place off of highways and roads. Fuel utilized for off-road operations is not subject to the Florida excise tax on special fuel. To facilitate its trucking operations, Silver Sand purchases diesel fuel in bulk, and uses it in its own trucks and sells it to lease operators who are under contract to Silver Sand. Silver Sand holds a Florida Department of Revenue license which entitles it to purchase diesel fuel in bulk without paying the excise tax. The assessment period involved in this case is April, 1973 through December, 1973. During that period the United States was in the middle of a fuel crisis, and motor fuels, including diesel fuel, was difficult to obtain. During the relevant period Jeremiah J. Kelly, Jr., was Silver Sand's lease operations manager. He was responsible for obtaining diesel fuel. In April, 1973, a Mr. Carruthers, representing Handy Haul-It, approached Kelly and told him that Handy Haul-It could provide Silver Sand with diesel fuel. Kelly had the authority to negotiate diesel fuel purchases on behalf of Silver Sand. Kelly did not know where Carruthers or Handy Haul-It could get diesel fuel, and he assumed that Handy Haul-It was a fuel distributor. Carruthers told Kelly that he would need to have a "Purchaser's Blanket Resale and Exemption Certificate" issued by Silver Sand in order to obtain the fuel. Carruthers presented Kelly with such a certificate. The certificate was addressed to Radiant Oil. Kelly went to his superior, Kenneth Surbaugh, and asked whether he should issue the certificate. Surbaugh authorized Kelly to sign the certificate. Kelly signed the certificate that day, and left it on his desk. When he returned the following day the certificate was gone. Kelly did not write the name "Silver Sand Company" on the certificate, and did not date it. The name "Silver Sand Company" and the date were placed on the certificate after Kelly signed it. The certificate came into Carruthers' possession. The evidence did not reveal whether the certificate was delivered to Carruthers by anyone at Silver Sand, but Kelly did intend to deliver the certificate to Carruthers. A copy of the certificate was received in evidence as Respondent's Exhibit 1. The name Silver Sand Company is inserted as the purchaser, and it is dated January 1, 1973. The document was predated. It was actually signed during April, 1973. NCJ is in the business of distributing motor fuels, including diesel fuel. Joseph Capitano is the President and Chief Executive Officer of NCJ. During April through December, 1973, NCJ had a relative abundance of diesel fuel. In April, 1973, Bill Simms, a friend of Capitano who is also in the fuel distribution business, told Capitano that he had a customer who desired to purchase substantial quantities of diesel fuel. This customer was Carruthers. Simms introduced Carruthers to Capitano. Capitano told Carruthers that he would need a Purchaser's Blanket Resale and Exemption Certificate in order to sell him diesel fuel. Capitano gave Carruthers a certificate to be executed which would fulfill this function. This is the certificate that was signed by Kelly, and received in evidence as Respondent's Exhibit 1. Carruthers ultimately returned the form to Capitano. The form is addressed to Radiant Oil, not to NCJ. NCJ and Radiant Oil are separate entities. NCJ and Radiant Oil are separately registered with the Department of Revenue as motor fuel dealers. The corporations are somewhat related. Joseph Capitano's father owns Radiant Oil. NCJ leases office space from Radiant Oil, and the two corporations share clerical help. The companies use common gas tanks. The companies also utilize many of the same business forms. NCJ had on occasion utilized Radiant Oil's "Purchaser's Blanket Resale and Exemption Certificate" form for its use. NCJ was a new company, and did not have its own forms. Respondent's Exhibit 3 is a compilation of such forms which were used by NCJ during the relevant period. Some of these were Radiant Oil's forms. In utilizing Radiant Oil's forms, the name Radiant Oil Company was marked off and NCJ Investment Company was inserted. That was not done on the form signed by Kelly on behalf of Silver Sand. After Carruthers delivered the exemption certificate to Capitano Handy Haul-It proceeded to purchase fuel from NCJ and resell it to Silver Sand. The fuel was generally picked up at NCJ's tanks by Handy Haul-It's truck. Occasionally Handy Haul-It hired trucks from another common carrier to pick up the fuel. Handy Haul-It paid for the fuel by check made out on the account of Handy Haul-It. NCJ invoices reflected, however, that the purchaser was Silver Sand. Copies of these invoices were not mailed to Silver Sand, and never came into the possession of Silver Sand. No one at Silver Sand was aware of the existence of NCJ. Handy Haul-It purchased 1,753,027 gallons of special fuel from NCJ in this manner. Handy Haul-It did not pay the special fuel tax on any of the purchases. While NCJ was selling tax free based upon the Purchaser's Blanket Resale Exemption Certificate (Respondent's Exhibit 1) it did not place Silver Sand's dealer or distributor license number on many of the invoices. NCJ never made any inquiry of anyone at Silver Sand as to Carruthers' or Handy Haul-It's authority to purchase fuel on Silver Sand's behalf. 882,264 gallons of the special fuel purchased by Handy Haul-It from NCJ was delivered to Silver Sand. This fuel was delivered either in Handy Haul-It's own truck, or in a truck hired by Handy Haul-It. Silver Sand paid Handy Haul-It directly by check when it received each of the deliveries. Handy Haul-It delivered invoices to Silver Sand. The invoices do not reflect a separate itemization showing that motor fuel taxes were paid. The price paid for the fuel would indicate that the price included the tax. Carruthers represented to officials at Silver Sand that the price included the tax, and that he would pay the taxes. In its monthly reports to the Department of Revenue, Silver Sand did not report the purchases because it believed that it was not required to report purchases upon which taxes had been paid. The evidence at the hearing was insufficient to establish the ultimate destination of the fuel which Handy Haul- It purchased from NCJ but did not sell to Silver Sand. Handy Haul-It did make sales to several other trucking companies, including Keystone Trucking Company, Montgomery Trucking, Montgomery Hauling, Keys of the Coast, Florida Bulk Transport, Dirt Haulers, Inc., and Mid Florida Hauling. Handy Haul-It had purchased some fuel from sources other than NCJ, and it cannot be gleaned from the evidence whether the fuel purchased from NCJ was ultimately delivered to these other companies. It is clear from the evidence that the remaining fuel was not delivered to Silver Sand, and that Silver Sand was not aware that Handy Haul-It had purchased such additional quantities from NCJ in Silver Sand's name. Handy Haul-It was not licensed as a distributor or dealer of motor fuels by the Florida Department of Revenue. By agreeing to purchase diesel fuel from Handy Haul-It, Silver Sand authorized Handy Haul-It to obtain diesel fuel on behalf of Silver Sand. Handy Haul-It was therefore Silver Sand's agent for the purpose of obtaining fuel for Silver Sand. When Kelly signed the Purchaser's Blanket Resale and Exemption Certificate, he authorized Handy Haul-It to use Silver Sand's special fuel dealer's license to obtain diesel fuel tax free from Radiant Oil Company of Tampa, the addressee on the certificate. Silver Sand thus clothed Handy Haul-It and Carruthers with the apparent authority to purchase diesel fuel tax free utilizing Silver Sand's special fuel dealer license number from Radiant Oil Company of Tampa. NCJ knew, or should have known, that in making sales to Carruthers and Handy Haul-It, it was not dealing directly with Silver Sand. Although the exemption certificate had the name Silver Sand on it, and NCJ chose to address its invoices to Silver Sand, all of the purchases were made by Handy Haul-It and Carruthers. There was no evidence that Carruthers ever represented to NCJ that he had authority to speak for Silver Sand. NCJ took no action to inform itself as to Carruthers' authority to act on Silver Sand's behalf, other than to obtain the exemption certificate. The exemption certificate, however, was not made out to NCJ. The only authority of Handy Haul-It to act on Silver Sand's behalf that NCJ was entitled to rely upon was the authority to purchase fuel from Radiant Oil Company of Tampa. The authorization is very specific in this regard, and although it may be that Silver" Sand would gladly have executed an exemption certificate addressed to NCJ, it did not do that. The fact that the certificate was back-dated, and was issued to the wrong entity, should have caused NCJ to take action to contact Silver Sand. If NCJ had done that, Handy Haul-It would never have been in a position to purchase fuel from NCJ and to deliver it to someone other than Silver Sand. Indeed, it is possible that Handy Haul-It would never have been placed in the position of buying fuel under Silver Sand's license number at all. Knowing that it was dealing with an agent, NCJ should have sent copies of the invoices to the principal, Silver Sand. If NCJ had done that, Silver Sand would have been on notice that Handy Haul-It was purchasing considerable fuel in its name, and delivering it elsewhere. Silver Sand did not give Handy Haul-It the authority to obtain fuel for any purpose except delivery to Silver Sand. When Handy Haul-It utilized the exemption certificate to purchase fuel for purposes other than delivery to Silver Sand, it exceeded the scope of its authority. NCJ did not obtain special fuel taxes from Handy Haul-It on the sales which NCJ made to Handy Haul-It. NCJ did report the sales to the Department of Revenue. Silver Sand believed that it was paying special fuel taxes to Handy Haul-It. The fact that the price which Silver Sand paid to Handy Haul-It included the tax was not, however, placed on the invoices. Handy Haul-It did not pay any special fuel taxes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS THEREFORE RECOMMENDED: That the assessment for Special Fuel Tax in the amount of $154,644.50 imposed against Silver Sand Company of Leesburg, Inc., by the Department of Revenue be upheld. CERTIFICATION I certify that the foregoing is the Final Order of the Department of Revenue adopted by the Governor and Cabinet on the 19th day of April, 1977. Harry L. Coe, Jr., Executive Director State of Florida, Department of Revenue Room 102, Carlton Building Tallahassee, Florida 32304 Dated this 20th day of April, 1977.
The Issue The issues in these cases are (1) whether four tax warrants issued by Petitioner against Respondent, Frances Bowers, a/k/a Francis Bowers, d/b/a Shannon Oil Company and Shannon Service Stations, were properly issued; (2) whether two Notices of Freeze and two Notices of Intent to Levy on Respondent were properly issued; (3) whether the allegations of an Administrative Complaint entered March 1, 1995 by Petitioner against Respondent are correct; and (4) whether an Emergency Order of Suspension issued by Petitioner on or about March 3, 1995 was warranted.
Findings Of Fact At all times relevant to this proceeding, Respondent, Frances Bowers, a/k/a Francis Bowers, held a Special Fuel Dealers License #10-011382, a Motor Fuel Jobbers License #09-001450 and Retail Dealer License #’s 77- 000320 and 40-001175. The motor fuel and special fuel licenses were held at Highway 90 East, Caryville, Florida 32427. The retail dealer licenses were held at 1007 North Waukesh Street, Bonifay, Florida 32425 and Highway 279 South, Caryville, Florida 32427. Ms. Bowers operated under the business names of Shannon Oil Company or Shannon Service Station. Ms. Bowers has been engaged in the sale of fuel at various retail locations since 1986. She has engaged in the sale of special fuels (diesel) since May 10, 1985. She has operated as a motor fuel jobber (gasoline) since January 18, 1989. From April 1994 through December 1994, Ms. Bowers purchased special fuel from Murphy Oil Co. From May 1994 through July 1994, Ms. Bowers purchased special fuel from Beards Oil Co. For the period July 1993 through December 1994 Ms. Bowers delivered unsigned, no-remit tax returns to Petitioner, the Department of Revenue (hereinafter referred to as the “Department”). Those returns were delivered by Ms. Bowers to Kathy Jones, a Department Revenue Specialist, at the Department’s Marianna offices. Returns for some months were not remitted. Ms. Bowers subsequently returned to the Department’s Marianna offices and signed the no-remit returns she had filed in the presence of Ms. Jones. The no-remit returns filed by Ms. Bowers indicate that she owed taxes pursuant to Chapters 206, 212, Part II and 336, Florida Statutes. No part of the tax Ms. Bowers indicated was owed was remitted by Ms. Bowers to the Department. For months for which no return was filed, the Department estimated the amount of tax owed. The Department issued Notices of Assessment and Jeopardy Finding to Ms. Bowers in January 1995. These Notices informed Ms. Bowers of the Department’s intent to cause tax warrants for the outstanding taxes owed by Ms. Bowers to be filed with the Clerk of Court. Based upon the no-remit returns, the Department filed four tax warrants. The warrants were for total taxes of $218,801,56. Additionally, penalties, filing fees and interest was included in the tax warrants. The total amount for the four warrants, without the filing fees, was $187,167.18 attributable to Shannon Service Stations and $183,548.97 attributable to Shannon Oil Company. Included in the no-remit returns filed by Ms. Bowers were Special and Alternative Fuel Tax Returns. These returns indicated that Ms. Bowers had purchased “tax-paid” special fuel, meaning that she had paid the tax at the time she purchased the fuel. The tax was allegedly paid to Murphy Oil Co. or Beard’s Oil Co. Based upon the Special Fuel Tax Returns of Murphy Oil Co. and Beard’s Oil Co. no tax was paid by Ms. Bowers on purchases of special fuel purchased by Ms. Bowers. Copies of these returns were accepted into evidence without objection from Ms. Bowers. Ms. Bowers has admitted during her deposition testimony that she owes the outstanding taxes at issue in this proceeding. See Department’s exhibit 14. On or about February 28, 1995, the Department issued two Notices of Freeze and two Notices of Intent to Levy on Frances Bowers, a/k/a Francis Bowers, d/b/a Shannon Oil Company and Shannon Service Stations. Pursuant to the Notices, the Department notified Ms. Bowers that it intended to levy against her assets, consisting of deposits at the Bank of Bonifay, for outstanding taxes. The Department indicated that it was taking this action for nonpayment of taxes, penalty and interest in the sum of $183,548.97 attributable to Shannon Oil Company and in the sum of $187,267.18 attributable to Shannon Service Stations. On or about March 20, 1995, Ms. Bowers filed a Request for Administrative Hearing with the Department. Ms. Bowers contested the proposed levy and alleged that she had not failed to pay any taxes owed. On or about March 1, 1995, the Department issued an Administrative Complaint against Ms. Bowers. Pursuant to the Administrative Complaint, the Department informed Ms. Bowers that Special Fuel Dealers License #10-011382, Motor Fuel Jobbers License #09-001450 and Retail Dealer License #’s 77-000320 and 40-001175 were being revoked. This action was premised upon allegations that Ms. Bowers “failed to file or pay fuel taxes collected for the period of July, 1993 through December, 1994”. The Department also issued an Emergency Order of Suspension on or about March 3, 1995. Pursuant to this Order, the Department suspended the licenses held by Ms. Bowers which the Department sought to revoke in the Administrative Complaint. On or about March 22, 1995, Ms. Bowers sent a Petition for Administrative hearing to the Department in response tot he Administrative Complaint. Ms. Bowers disputed in the Petition whether she had failed to remit outstanding taxes or that she owed such taxes as alleged in the Administrative Complaint. All of the exhibits and the facts of this matter were stipulated to by Ms. Bowers. Ms. Bowers also stipulated to the revocation of her licenses, the emergency suspension order issued by the Department, the issuance of the tax warrants and the Notices of Freeze and Notices of Intent to Levy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered upholding the Emergency Order of Suspension, the Department’s Administrative Complaint, the four tax warrants issued by the Department against Respondent and the Notices of Intent to Freeze and Notices of Intent to Levy. DONE and ORDERED this 25th day of February 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February 1997. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Albert J. Wollermann John N. Upchurch Assistant Attorneys General Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Owen N. Powell, Esquire Post Office Box 789 Bonifay, Florida 32425
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
