Findings Of Fact The Petitioner is an agency of the state of Florida charged, in pertinent part, with regulating purveyors of gasoline sold at retail in the state of Florida, to ascertain if gasoline meets appropriate quality standards including the standards, embodied in the Department's rules for lead additive content. The Respondent is a corporation doing business in the state of Florida which engages in the retail sale of gasoline, including sale of such product at the Suwanee Swifty Store #265 at 1971 West Silver Springs Boulevard in Ocala, Florida. An agent of the Petitioner agency performed a routine inspection on a pump connected to a storage tank operated by the Respondent on September 12, 1990. The pump add storage tank contained gasoline offered for sale and some of which had been previously sold to the general motoring public. The gasoline contained in the storage tank was a mixture of unleaded gasoline and lead- containing regular gasoline (leaded regular). The pump which pumped the gas from that tank was labeled "regular", meaning that it was labeled for a gasoline containing lead. There is no dispute that the Respondent was selling gasoline which did not meet the standard for leaded regular gasoline because it contained an insufficient amount of lead. This situation arose because the Respondent had placed an order of unleaded regular gasoline from its supplier into the tank in order to begin converting that tank and pump from the sale of regular leaded gasoline to unleaded gasoline. As part of the switching process, unleaded gasoline was being added to the regular gasoline remaining in the pump or tank in order to convert the contents of the tank over to gasoline which could be legally sold as unleaded gasoline. Until the conversion process for the tank contents was complete the Respondent intended to and did sell the gasoline as leaded regular, because selling the gasoline at below the actual lead content of leaded regular during the conversing process would not harm customers and the price was set at below the current market price for leaded regular. If, on the other hand, the Respondent had sold the product in the tank and through that pump as unleaded gasoline, by re-labeling the pump before the actual contents of the tank served by it had been converted completely to unleaded gasoline, the labeling might have been strictly legal because the contents of the tank were below the legal standard for leaded regular authorized in Rule 5F-2.001(1)(j), Florida Administrative Code, but the selling of such gasoline which still contains some lead might harm the vehicles of the motoring public using it for vehicles designed to use only unleaded gasoline. In any event, because the Department's investigation revealed that the Respondent was selling gasoline through the pump labeled for regular leaded gasoline which did not meet the lead content standard for regular leaded gasoline, the Department seized the gasoline and immediately allowed the Respondent to post a bond in the amount of $1.26.9 per gallon times the number of gallons sold, for a total bond of $696.68. The Department seeks to assess an identical amount against the Respondent in this proceeding. Upon on the posting of the bond, the product was released back to the possession of the Respondent the next day and allowed to be sold after the pump was relabeled to indicate "unleaded plus". In fact, the allowing of the Respondent to resume sales of the product under the label "unleaded plus" may not be strictly legal either, because, in fact, the product when the resale of the product began still contained some lead content when resale began. In any event, however, the product being sold at the time the inspection was made was not of a quality equivalent to the appropriate standard in the above rule for "leaded regular" and therefore under the authority cited below the Department has the authority to make the assessment it seeks to impose against the bond posted by the Respondent. The assessment would be reasonable under circumstances prevailing under other similar cases in which the Department has imposed a similar amount of assessment. However, in the instant case, the Respondent established with unrefuted testimony that it was making an honest attempt to convert the gasoline in its tank and the pump to unleaded and that during the transition from the same tank of leaded regular to unleaded gasoline from that tank and pump it is normal and accepted in the industry for the product to contain some lead, albeit not enough to be truly in conformance with the above standard. Likewise it would have been inaccurate to label the pump at that point in the conversion process as "unleaded" because some residuum of lead remained in the product in the tank. The point is that the manner in which the Respondent sold the gasoline, by continuing to label it as regular, instead of unleaded, was less harmfully misleading to the public because the use of such gasoline in cars requiring leaded regular would not be harmful to the mechanical components of those vehicles. Because the pump at the time of the sales in question was labeled regular (meaning leaded regular) cars requiring unleaded gasoline would not have been filled at that pump with such drivers being aware of the necessity to only fill their car at pumps labeled "unleaded", etc. Thus the harm which can be posed to mechanical components of cars requiring unleaded gas by the fueling of the car with leaded gasoline was least likely to occur by the conversion method followed by the Respondent involving keeping the old regular leaded label until the gasoline in the tank was entirely converted over to a content and quality which equated to the legal standard for unleaded gasoline. Because of this, although it is undisputed that Respondent was selling gasoline from the pump in question which did not meet the legal standard for leaded regular, the Department should exercise its discretion in favor of returning the amount of the bond posted to the Respondent.
Recommendation That a final order be entered by the Department of Agriculture and Consumer Services granting the request of the Respondent for refund of the bond posted and that the Department elect to rescind its assessment-in the amount of $696.68. DONE and ENTERED this 25th day of April, 1991, in Tallahassee, Florida. COPIES FURNISHED: R. Bruce Sheets, Manager Lewis Oil Company, Inc. Post Office Box 1282 Gainesville, FL 32602 Clinton H. Coulter, Jr., Esq. Department of Agriculture and Consumer Affairs 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford, Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991. Richard Tritschler, General Counsel Department of Agriculture and Consumer Services 515 Mayo Bldg. Tallahassee, FL 32399-0800
Findings Of Fact During a routine inspection on March 30, 1983, a sample diesel fuel taken from Respondent's place of business in Clearwater, Florida, was tested and was found to have a flash point of 660F. Normal flash point for diesel fuel is 1000F. A Stop Sale Notice was issued March 30, 1983, and sales from this tank were stopped. On March 31, 1983, Respondent posted a $1,000 bond in lieu of having the fuel confiscated. Before the Stop Sale Notice, 1,282 gallons of contaminated diesel fuel had been sold from this tank at a price of $1.099 per gallon.
Findings Of Fact On February 10, 1978, a petroleum inspector, David Potter, in carrying out his routine inspection, took a gasoline sample for analysis of unleaded gasoline from the Easy Shopper Store located on U. S. 41 South, Brooksville, Florida. This sample was tested by the state laboratory at Tallahassee, Florida, and on February 17, 1978, the Tallahassee laboratory notified Mr. Potter that the unleaded gasoline was illegal in that in contained .240 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the Respondent Department's regulation. On the basis of this information, Potter went to the Easy Shopper Store and placed a stop-sale notice on the tank that dispensed unleaded gasoline. On this same date, February 17, 1978, the Petitioner was allowed to deliver 1200 gallons of unleaded gasoline in an effort to reduce the lead content already existing in the tank. Another sample was taken from the tank after the 1200 gallons was added, and it was dispatched for analysis. On February 20, 1978, Potter was notified by Tallahassee laboratory that the lead content in subject tank contained .520 grams per gallon and was therefore illegal. On the basis of this, the Petitioner, James R. Wilkes, was allowed to post a bond in the amount of $507.91 for the value of 834 gallons that was sold by Easy Shopper Store from the last delivery before the first sample and the stop-sale. The Petitioner was then allowed to pump out the illegal unleaded gasoline and put it in a regular tank to be sold as regular gasoline. On March 13, 1973, Mr. Potter sampled the Petitioner's unleaded product at Huey's Service Station located at U. S. 19 South, Inverness, Florida. The unleaded gasoline sample was dispatched to the Tallahassee Laboratory, and the analysis indicated that the lead content was .069 grams per gallon established by the Respondent's Department's regulations. As a result of the analysis of the gasoline sample, Mr. Potter placed a stop-sale against Huey's Service station's unleaded gasoline tank, and the Respondent posted a bond of $206.70 which was the value of the gasoline sold before the stop-sale. Upon the posting of the bond the Petitioner was allowed to pump out the remaining gasoline and refill the tank with a new product. The contaminated product that was recovered by the Petitioner from Huey's Service Station was delivered on February 15, 1978, in the amount of 500 gallons, and on March 1, 1978, in the amount of 300 gallons. On or about March 3, 1978, the Petitioner discovered the cause of the gasoline contamination. He found a leak from the No. 3 compartment to the No. 4 compartment on his delivery truck, which caused the regular gasoline to mix with the unleaded gasoline. Promptly upon discovery of the leaking compartment, the Petitioner had the tank compartments repaired by the Tank Welding & Service Company, Inc., located in Tampa, Florida. There is no dispute as to the facts, and the only connection on the part of Petitioner is that although the gasoline was contaminated it was not an intentional act of the Petitioner, and he feels he should not be penalized in the amount of $507.91 and $206.70 under the circumstances of this case. Respondent contends that Section 525.06, Florida Statutes. does not allow for any discretion on the part of the Respondent in its confiscation of the remaining contaminated gasoline, other than the agreement between participating parties which allowed the Petitioner to post bonds in the amount of $507.91 and $206.70, which is the value of the gasoline Petitioner dispensed to the public at Easy Shopper Store and Huey's Service Station. Respondent contends that most similar incidents are non-intentional.
Recommendation It is recommended that upon payment by the Petitioner of $507.91 and $206.70, respectively, the bond of the Petitioner be cancelled and this case be closed DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1979. COPIES FURNISHED: Robert A. Chastain, Esquire Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304 James R. Wilkes, Marketer American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512 Mr. John Whitton Bureau of Petroleum Inspection Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304
The Issue The issue here presented concerns an alleged violation of Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code, related to the permissible ten percent (10 percent) evaporated temperature for which gasoline shall not exceed 140F, and penalties to be imposed for such violations, in keeping with Section 525.06, Florida Statutes (1980), and Rule Subsection 5F-2.01(1)(c)1, 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). The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 3411 U.S. 19 North, Pasco County, Tarpon Springs, Florida. On November 23, 1981, a sample of the petroleum product, super unleaded gasoline (which was offered for sale) was taken from the Respondent's facility as indicated above. A subsequent analysis of that product by Petitioner's mobile laboratory revealed that the ten percent (10 percent) evaporated temperature was 153F. This reading exceeded the ten percent (10 percent) evaporated temperature of 140F as set forth in Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code. Petitioner's inspector, Jamie Gillespie, advised Respondent's agent that the premium unleaded gasoline was illegal due to its "stale" condition and the Respondent was given an option of either confiscation of the product or posting of a bond. The product is presently under a Stop Sale Notice and is under seal. (Petitioner's Composite Exhibit No. 1.) A subsequent analysis by Petitioner's laboratory in Tallahassee revealed that the evaporation level of the product was found to be approximately 163F. Ben Bowen, Petitioner's Assistant Bureau Chief in charge of petroleum inspection, indicates that the discrepancy in the evaporation levels as analyzed by the two laboratories was most probably due to the seal which was on the product and the approximate seven (7) day delay in the transfer of the product from Tarpon Springs to the laboratory in Tallahassee. Respondent's supervisor, Mark Ordway, 1/ was shown how the product could possibly become stale due to a "venting" problem from the roof of the storage tank where the product was stored. Sam Puleo, a lab technologist employed in Petitioner's mobile laboratory, analyzed the sample of the product taken from Respondent's facility. According to Mr. Puleo, "stale" products such as that taken from Respondent's tanks would make it difficult to start an automobile engine.
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
Findings Of Fact The Respondent owns and operates the Heart of Florida Truck/Auto Plaza ("Truck-Stop"), on U.S. 27 North, Haines City, Florida. When he purchased the truck-stop in October of 1978, he had no prior experience in the operation of such facilities. (Stipulation, Testimony of Respondent) During September of 1979, the Respondent's fuel supplier notified him that premium gasoline would no longer be delivered. Respondent decided, therefore, to convert his 6,000 gallon premium gasoline tank into a diesel fuel storage tank. (Stipulation, Testimony of Respondent) In order to convert the tank to diesel fuel usage, Respondent pumped out all but a residual consisting of approximately 100 gallons of gasoline and 200 gallons of water. Even with the use of an auxiliary electric pump, the Respondent could not succeed in removing the remaining 238 gallons of residual. (Stipulation, Testimony of Respondent) He, then, sought advice from others on ways to empty the tank, including his jobber, diesel mechanic, truck drivers and trucking firms served by his truck-stop. While no one could suggest a method of removing the residual, they assured Respondent that truckers and diesel mechanics preferred a fuel mixture of 1 gallon of gasoline per 100 gallons of diesel fuel because of improved engine performance. (Testimony of Respondent) Based on such advice, the Respondent filled the tank in question with diesel fuel No. 2 and sold the resulting diesel/gasoline mixture to truckers as diesel fuel No. 2. Because of the presence of gasoline, this diesel fuel had a flash point at 440 F. (Testimony of Respondent, John Whitton, and petitioner's exhibit 3) In mixing the diesel with the gasoline in the tank, Respondent reasonably believed, in good faith, that the resulting mixture would not be hazardous or dangerous to its users. He did not know, and had not been previously notified, that the Department had set standards which strictly regulated the quality of gasoline and diesel fuel sold in Florida. Nor did he know that gasoline and diesel fuel sold in violation of such standards would be subject to confiscation and sale by the Department. (Testimony of Respondent) Although the Department regularly mails freight surcharge information every two weeks to retail gasoline outlets such as Respondent's, it does not periodically disseminate information on its petroleum regulatory program. Copies of the Department's rules, and gasoline standards, are available only on request. (Testimony of Lois W. Thornton and John Whitton) Each month, the Department issues approximately 100 Stop Sale Notices to gasoline retailers in Florida. Approximately 12 percent of these Notices are based on unlawful sale of fuel with flash points below Department standards. In such cases, the Department has consistently followed a practice of allowing the retailer to continue ownership of the fuel (in lieu of Department confiscation) only upon the posting of a bond equal to the value of the substandard fuel. However, notwithstanding the value of the substandard fuel, the Department does not require posting of a bond in excess of $1,000.00. Upon resolution of the administrative enforcement actions in favor of the Department, the bonds are forfeited to the Department, in lieu of confiscation. (Testimony of John Whitton) Since, in this case, the value of the offending fuel far exceeded $1,000.00, the Department allowed, and Respondent willingly posted a $1,000.00 bond with the Department. (Testimony of Respondent and John Whitton, and Petitioner's exhibit 2)
Conclusions Respondent violated the Department's gasoline and oil standards. He should, therefore (in lieu of confiscation) forfeit the cash bond he previously posted.
The Issue The issue here presented concerns the alleged violation of Rule Subsection 5F-2.01(1)(j) , Florida Administrative Code, related to allowable amounts of lead per gallon in gasoline which is dispensed under the distinctive name "Unleaded Gasoline." This alleged violation of the Rule potentially subjects the Respondent to the penalty set forth in Section 525.06, Florida Statutes (1980). The particular facts of this allegation are that on September 15, 1981, a sample of gasoline from the pump at the Respondent's station marked "Unleaded Premium Gasoline" was extracted and a test conducted revealing .31 grams per gallon of lead content and a further test was conducted on September 25, 1981, at the same station and pump revealing .23 grams of lead per gallon, in violation of the maximum allowable .05 grams per gallon. FINDINGS OF FACT 1/ This case was presented for hearing based upon the request for a formal Subsection 120.57(1), Florida Statutes, hearing, made by the Respondent, Emmett C. Wever. The matters to be considered are as set forth in the Issues provision of this Recommended Order. The hearing was conducted on December 14, 1981, in keeping with the Respondent's request. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State Government which has the obligation of gasoline and oil inspection pursuant to the provisions of Chapter 525, Florida Statutes. The Respondent is the proprietor of a station which dispenses gasoline, at 1204 Ocean Shore Boulevard, Ormond Beach, Florida. On September 15, 1981, an employee of the Petitioner made a check of the unleaded premium gasoline pump from which the Respondent had been selling that product. The sample extracted was analyzed on September 22, 1981, and this analysis revealed a lead content in the sample of .31 grams of lead per gallon. The results of that report were made known to the Petitioner's employee on September 25, 1981, and a further check of the aforementioned gasoline pump was made on that same date. Subsequent testing of that sample revealed .23 grams of lead per gallon. In the face of these revelations of lead content in the gasoline, a Stop Sale Notice was given to the station owner. The effect of the Stop Sale Notice would allow the confiscation of gasoline remaining in the unleaded premium tank at the Respondent's station or in lieu of the posting of a bond, not to exceed $1,000.00. The Respondent elected to post a bond of $953.30 which was equal to the 657 gallons which had been dispensed from the subject gas pump during the questioned period. The Respondent was allowed to sell the remaining 1,046 gallons in the tank, which was associated with the gasoline pump, as regular gasoline. Excessive lead, when introduced into those automobiles which are required to use unleaded gasoline, can damage the catalytic converter, and it is estimated that this damage would occur after burning approximately five (5) tanks of contaminated unleaded gasoline. In addition, lead in the fuel tends to foul the engine. There was no showing in the course of the hearing that the Respondent had knowledge of the lead content discovered on September 15 and 25, 1981, which amounts were in excess of the standards set forth in Rule Subsection 5F- 2.01(1)(j), Florida Administrative Code, calling for no more than .05 grams of lead per gallon in gasoline sold as unleaded fuel.
Findings Of Fact On Thursday April 19, 1979 an inspector for the Department of Agriculture and Consumer Services, Petitioner, took a sample of gasoline that had been supplied by Pay-Less Oil Company, Inc. from a no-lead pump at the Pick- Kwick station located at 9694 Ulmerton Road, Largo, Florida. This sample was shipped to Tallahassee for analysis on Friday, April 20, 1979 and on Tuesday, April 24, 1979 Respondent was notified that the product in the tank had an excess lead content and a Stop Sale Order was placed on this tank. To release the gas and free the tank for further use Respondent posted a $1,000 bond. The tank from which the sample was taken had been filled a short time before. By the following day (one day after the sample had been taken) 442 gallons of gasoline had been sold from this tank. By the time Respondent was notified on April 24, 1979, 1,780 gallons of gasoline with the excess lead content had been sold. Following notification from Petitioner that his gas was bad Respondent, after posting the bond and moving the gas to a leaded gas pump, investigated the incident. This investigation revealed that a new driver had some 250 gallons of leaded gas left in his tank wagon after filling the tank at another station and in dumping this gas at the Umberton Road Station, by mistake, dumped the gas in the no-lead tank. Because he was afraid of being fired he failed to disclose his mistake until after the sample had been taken, the lead content verified and the drivers confronted with explaining how it could have happened. Petitioner's policy in these contaminated gasoline cases is to allow the gasoline supplier to post a bond equal to the retail price of contaminated gasoline that had been sold from the tank but not to exceed $1,000, upon which if the gas can be sold as another grade the Stop Sale will be lifted. This is the amount forfeited by the supplier rather than have the gasoline confiscated.
Findings Of Fact The Petitioner is licensed as a dealer of special fuel pursuant to Florida Statutes 206 and has been assigned license Number 1627. The pertinent sections of Florida Statutes which are applicable to this case are ss206.86(1), (6), (8), 206.87, 206.89, 206.93, 206.94 and Ch. 212. The pertinent rules of the Department of Revenue applicable to special fuels sales involved herein is 12A-2.03. The deposition of Albert Colozoff and all answers to interrogatories and responses to requests for admissions are admissible as evidence and are to be made a part of the record in this cause. The Petitioner sold special fuels to Zamora Truck and Car Services, Roberts Equipment Company and Florida Petroleum, Inc. Petitioner was assessed by the Respondent for tax on 1,979,201 gallons of special fuel sold by it and paid tax and interest as set forth in the letter attached hereto as Exhibit A. That no penalty paid on any of the tax paid pursuant to that letter. That Petitioner did not remit taxes that were due during the month the sales of special fuel were reported on any of the sale to Zamora, Roberts or Florida Petroleum or the remaining 1,417,263 gallons sold. Zamora and Roberts represented to Belcher that they were purchasing all special fuel from Belcher for exempt agricultural use. Due to past dealings and delivery of the special fuel to a farm, Belcher believed and relied upon the facts represented to it by Zamora and Roberts. However, Belcher did not obtain written documentation of this agricultural use from Zamora or Roberts and did not furnish the Department with any such written documentation. Belcher did not obtain resale certificates or exemption certificates or dealer license numbers from Zamora, Roberts or Florida Petroleum. Nor did the report forms filed by Belcher contain resale certificates, exemption certificates or dealer license numbers from Zamora, Roberts or Florida Petroleum. An employee of the Department advised Belcher that Zamora and Roberts were under investigation for fraudulent failure to report taxes. Belcher paid sales tax on sales of special fuel in the amount of $18,589.53 on the sale of 538,030 gallons of special fuel. Zamora is not a licensed dealer of special fuels. Florida Petroleum is not a licensed dealer of special fuel. Roberts is not a licensed dealer of special fuel. Belcher did not fraudulently file incorrect monthly special fuels reports. The Department of Revenue audited Belcher and computed tax, penalty and interest due as set forth in the documents attached hereto as Exhibit B. The Department of Revenue advised Belcher of its duties regarding reporting requirements in the letters from L. N. Thomas attached as Exhibit C.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That Respondent's assessment be upheld with respect to Petitioner's tax deficiency, penalty and interest as set forth in the assessments with adjustments to be made for payments paid by Petitioner under the "sales tax" theory. DONE and ORDERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James R. McCachren, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Box 1170 Tallahassee, Florida 32302 William D. Townsend, Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32301
