Findings Of Fact The Respondent, J. C. Penny Company, Inc., operates an automobile service center at its store in the Sunshine Mall in Clearwater, Florida. The service center has a gas station which sells gasoline products to the general public. On or about February 4, 1981, a petroleum inspector of the Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of unleaded gasoline from the Respondent's gasoline station at the Sunshine Mall. This sample was tested in the Tallahassee laboratory and was found to contain lead contents in the amount of 0.60 gram per gallon in the no- lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on February 5, 1981 (Petitioner's Exhibit 1) The station manager was informed that he had several alternatives, including confiscation of the product, with the Respondent posting a bond in the amount of $1,000 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on February 5, 1981 (Petitioner's Exhibit 1). Petitioner received a bond in the amount of $1,000 from Respondent and this amount was deposited into the Gasoline Trust Fund.
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 Respondent. DONE and ENTERED this 1st day of June, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire Room 513 June, 1981. Mayo Building Tallahassee, Florida 32301 Donald E. Ford J. C. Penny Company, Inc. 27 Sunshine Mall Clearwater, Florida 33516
Findings Of Fact Petitioner, D & H Oil and Gas Company, Inc., dba Oasis Food Store, owns and operates an Oasis Food Store located at 2521 Thomas Drive in Panama City Beach, Florida. As part of the operation of that store, Petitioner operates a gasoline station which sells regular unleaded, unleaded plus, and unleaded premium gasoline to the public. On September 14, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Wood took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met Departmental standards for each type of gasoline. The Departmental testing revealed that the unleaded plus gasoline contained 9.3% alcohol. The pump for the unleaded plus gasoline did not have a label or sticker on it indicating that it contained alcohol. Since the pump did not have such a sticker on it, the sale of any unleaded plus gasoline from that pump would be in violation of Departmental standards for such gasoline. 1/ The store placed the appropriate sticker on the unleaded plus pump as soon as it was possible. In light of the above facts, the Department elected to allow the Petitioner to post a $1,000 bored in lieu of confiscation of the gasoline. The bond was posted on September 17, 1990. No evidence of the amount of gasoline sold while the label was absent was submitted at the hearing. 2/ The Department assessed Petitioner $1000.00, which is equal to the amount of the posted bond. This amount was not based on any evidence of the amount of gasoline sold from the unleaded plus pump during the time the label was not on the pump. Such an assessment is clearly outside the Department's authority. See Section 525.06, Florida Statutes. Therefore, Petitioner is entitled to a refund of its bond.
Recommendation It is accordingly, RECOMMENDED: That the request of D & H Oil and Gas Company, Inc., for refund of the bond posted be GRANTED. DONE and ORDERED this 23rd day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1991.
Findings Of Fact On June 14, 1982, James Hall, an employee of the Petitioner, made a routine inspection of the Respondent's gasoline service station located at 545 East Tennessee Street, Tallahassee, Leon County, Florida. This service station is in the business of selling gasoline to the motoring public. One of the products being sold at the time of inspection was Top Grade Super Regular Ethanol Enriched gasoline, which is a leaded fuel with components of gasoline and an enriching agent, alcohol. (The exact money amount of product that had been dispensed prior to the check was not established in the hearing, but by Respondent's position at the hearing, it was at least $1,000.00.) This fuel was sampled by Hall and returned for laboratory testing to be performed by the agency. That laboratory testing established that the 50 percent evaporated temperature for the fuel was less than 1700F. The reading was l540F, and a subsequent reexamination of the fuel sample indicated that the 50 percent evaporated temperature reading was I520F. Hall returned to Respondent's service station on June 15, 1982, and advised the proprietor of the problem with the evaporation temperature. At this point in time, 3,325 gallons of fuel remained in the tank from which the sample was taken. A Stop Sale Notice was placed against Respondent, and in lieu of confiscation of the fuel, which value was in excess of $1,000.00, Respondent was allowed to post a $1,000.00 bond and the fuel `gas released to be sold as regular leaded gasoline. Regular leaded gasoline is a product of lesser quality than Top Grade Super Regular Ethanol Enriched. Respondent, on the part of its officials, asked for a formal Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on November 3, 1982, as described. The adverse effects of a violation of the 50 percent evaporated temperature, include drivability of an automobile, in that there is a delay or hesitation during the operation of the automobile; stalling, i.e., the engine shutting down, and problems with "vapor lock" in high ambient temperature situations. "Vapor lock" is an undesirable condition related to engine performance in an automobile. Although Respondent's employees had mixed gasoline and alcohol in its tank on the premises to achieve the blend Top Grade Super Regular Ethanol Enriched in its past operations, the fuel that was sampled in this case had been purchased from a jobber/wholesaler, already blended. Moreover, there was no indication that Respondent had deliberately attempted to sell substandard fuel to the consuming public.
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 1. On January 13, 1975, 6500 gallons of gasoline was stop-saled by the Petitioner under the authority of Section 525.06, Florida Statutes. That section gives the Petitioner the right to confiscate and sell substandard gasoline. In lieu of having its gasoline confiscated, the Respondent previously posted a $2700 bond which prevented its retail outlet from being closed while confiscation proceedings would have been held. This hearing was convened to consider whether said bond should be` confiscated. At this hearing it was announced that there were no substantial disputes of material fact and that the Respondent admitted that said gasoline had been substandard. It was agreed among the parties that the Respondent should pay unto the Department of Agriculture and Consumer Services a sum in the amount of $908.54, which represented the amount of substandard gasoline which had been sold by the Respondent before the quality of its gasoline was discovered. It was not alleged that the cause of the substandard product was intentional on the part of the Respondent and it was assumed that negligence or lack of care on the part of the Respondent was the reason for this contamination.
Recommendation It is, therefore, recommended that the Petitioner in settlement of this matter retain the amount of .$908.54 from the $2700.00 bond that was posted by the Respondent. DONE and ORDERED this 20th day of August, 1975, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Albert H. Stephens, Esquire 125 South Gadsden Street Tallahassee, Florida Attorney for Respondent Robert Chastain, Esquire General Counsel Florida Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32304 Attorney for Petitioner
The Issue The issue presented here concerns the alleged violation of the Antiknock (Octane) Index, Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. In particular, tide Respondent is accused of having gasoline in a pump labeled as "premium leaded" which carried an octane reading of 91.9 at a time when the registration for "premium leaded" on file with the Department of Agriculture and Consumer Services indicated a rating of 95 octane. FINDINGS OF FACT 1/ On April 14, 1981, an employee of the Petitioner went to the Sunshine- Jr. Stores, Inc.'s, Store No. 335, located at Highway 40 and Interstate 75, in Marion County, Florida, for purposes of inspecting gasoline products being dispensed from that facility. One of the pumps at the store was labelled "premium leaded" gasoline and carried an octane rating on the pump as 91.5. (This octane rating was the same as was displayed on February 26, 1981, the date of the last inspection, when a sample test revealed a rating of 94.4.) The April 14, 1981, sample of fuel taken from the pump marked premium leaded," 91.5 octane, was analyzed, and the octane rating was shown to be 91.9. On April 14, 1981, the date of the more recent test, the Antiknock Index (Octane) in the sworn registration by the Respondent on file with the Petitioner, indicated that the "premium leaded" gasoline being dispensed was 95 octane. In view of the fact that the difference between the test reading taken on April 14, 1981, from the "premium leaded' pump, and that reading registered with the Petitioner exceeded the factor (1), to the extent of being a (3.1) factor, a claim was brought against the Respondent by the Petitioner based upon the alleged violation of Rule Subsection 5F-2.01(1)(i), Florida Administrative Code. The action was in the form of a Stop Sale Notice. The fuel was then released to the Respondent upon the basis of a Release Notice or Agreement, by which the Petitioner received a $1,000.00 bond in the form of a cashier's check, in lieu of the confiscation of the gasoline in the "premium leaded" pump. Subsequent to the inspection of April 14, 1981, in which the gasoline was sampled in the pump marked "premium leaded," that dispenser has been relabelled to reflect "oremium unleaded" fuel and the octane rating displayed on the pump continues to be 91.5.
Recommendation The facts presented in this cause show that the customers of the Respondent were not being told that the "premium leaded" fuel that they were being sold carried a 95 octane rating, instead, the rating shown was 91.5, which was less than the 91.9 reading found in testing the fuel extracted. In addition, the Respondent eventually took steps to identify for the public the fact that the fuel in the tank was unleaded and not leaded fuel. The reason for delay is explained in comments by the Respondent's representative offered in mitigation of any penalty to be imposed. He stated that the problem with labe11ing had occurred after an attempt on the Respondent's part to switch from "premium leaded" fuel to premium unleaded" fuel had been delayed, causing a concern that the amount of "premium leaded" remaining in the tank when the transition period occurred not contaminate the "premium unleaded" fuel that was being used to replace the former "premium leaded" and mislead a customer by causing him to believe that he was receiving "premium unleaded," when he was in fact receiving a blend of premium fuel containing lead. Technically, the Respondent dispensed fuel from a pump labelled "premium leaded" which was below standards when contrasted with the sworn registration Antiknock Index (octane); however, in view of the fact that the pump indicated an octane rating lower than the test rating on April 14, 1981, it is, RECOMMENDED: That no assessment be made and that the bond amount of $1,000.00 be returned to the Respondent. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. CHARLES C. ADAMS 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 30th day of July, 1981.
Findings Of Fact On January 13, 1983, an inspector from the Department of Agriculture and Consumer Services drew a sample of the gasoline in one of the pumps at the station of K & S Imports, Inc., in Fort Lauderdale, Florida, and submitted the sample for laboratory testing. This test determined that the evaporation rate for the sample was too high, having a 10 percent evaporated temperature of 155 degrees, instead of less than the allowable 140 degrees. Based on these test results, the Petitioner issued its stop-sale order to the Respondent on January 14, 1983. The tested sample came from a tank containing Cam 2 racing fuel. This is a special product distributed by Sun Oil Company, and it is not generally available to the public at gasoline stations. Cam 2 racing fuel performs well in engines designed for racing because racing cars often are pushed off in order to start the engines. However, the high evaporation rate of this fuel lessens the starting power of ordinary engines. The racing fuel tested at the Respondent's station came from a pump which was in the same location as the pumps containing other gasolines for sale to the public, and there was no obvious identification on the pump notifying purchasers that the product was a racing fuel not generally suitable for use in standard-use cars. Subsequent to the issuance of the stop-sale order, Sun Oil Company delivered another load of product, and added to the subject tank enough gasoline with a lower evaporation temperature to bring the sample at the pump down to an acceptable level. During the two to three month period prior to the issuance of the stop- sale order on January 14, 1983, the Respondent had sold 645 gallons of the Cam 2 racing fuel at a price of $3.50 per gallon. The Respondent contends that it informed the office of Consumer Services when it decided to market the Cam 2 fuel, and was advised that this fuel could be sold if the pump dispensing it was separated from other pumps, and if this pump was clearly marked to show that the fuel therein was sold as racing fuel not generally suitable for use in ordinary engines. However, there is not sufficient credible evidence to support a finding of fact that this instruction was implemented.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the request of K & S Imports, Inc., for a return of the $1,000 bond posted by it to secure the release of the fuel confiscated by the Department, be DENIED. THIS RECOMMENDED ORDER ENTERED this 24 day of May, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS 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 24 day of May, 1983. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Mark Klein, President K & S Imports, Inc. 3955 North Andrews Avenue Fort Lauderdale, Florida 33309 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 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. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
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
