Findings Of Fact Sunshine Jr. Stores, Inc., #214 is a service station in the business of selling regular leaded, regular unleaded, and unleaded premium gasoline to the public. Store # 214's place of business is located at the intersection of East Avenue and U.S. Highway 98 in Panama City, Florida. On August 6, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Wood took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline. The Departmental testing revealed that the regular-leaded gasoline did not contain any lead. The pumps had been mislabeled at the station and the station was in fact selling regular leaded gasoline as regular-unleaded gasoline. Since the leaded gasoline did not contain any lead, it fell below Departmental standards for leaded gasoline. The store had sold 2467 gallons of the mislabeled product. In light of the above facts, the Department elected to allow the Sunshine-Jr. Store, #214, to post a $1,000 bond in lieu of confiscation of the gasoline. The bond was posted on August 9, 1990. The Department assessed Sunshine-Jr. Stores, Inc., #214 the retail value of the product sold, which is equal to the posted bond. The assessment is reasonable and conforms to the amount of assessments imposed by the Department in similar cases.
Recommendation It is accordingly, RECOMMENDED: That the request of Sunshine Jr. Food Stores, #214 for refund of the bond posted be DENIED and that the assessment by the Department of Agriculture and Consumer Services in the amount of $1,000 be sustained. DONE and ORDERED this 16th day of March, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1991. COPIES FURNISHED: Milton Lawrence P. O. Box 2498 Panama City, Florida 32402 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The 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.
Findings Of Fact Respondents operating as a Majik Market, sells gasoline at 415 West Tennessee Avenue, Lynn Haven, Florida. On October 30, 1981 Mr. Haywood Nixon who is a petroleum inspector with the Department of Agriculture and Consumer Services took a sample of regular leaded gasoline from Respondent's fuel pump designated "WAY 1232" at the above location. The sample was deposited in a glass bottle and delivered to Mr. Patrick Flannigan who is a chemist for the Petitioner. On October 30, 1981 Mr. Flannigan performed certain prescribed tests on the gasoline sample. The final boiling point temperature of the sample was found by Mr. Flannigan to be 484 degrees Fahrenheit. This figure does not comply with the standards set out in Section 5F-2.01(1)(c)4. Florida Administrative Code which provides that the end point (final boiling point) of leaded gasoline shall not exceed 446 degrees Fahrenheit. The high end boiling point reading of the sample indicates that it was probably contaminated by another fuel such as diesel oil. The exact nature of the contaminant is however impossible to determine from the tests made. After receiving the results of the analysis made-by Mr. Flannigan Mr. Nixon returned to the Majik Market and issued a stop-sale notice. This notice prohibited the sale of the 4,435 gallons of contaminated gasoline remaining in Respondent's storage tank. As a result of that stop-sale notice Respondent posted a bond in the amount of $1,000. Subsequently the Petitioner issued a release notice allowing the contaminated gasoline to be removed from the State of Florida and disposed of by Respondent. Prior to the issuance of the stop- sale notice Respondent had sold 2063 gallons of gasoline from that tank since the last fuel delivery. There is no indication that the contamination discovered by the Department's test was the result of any willful or deliberate act by Respondent of Respondent's agents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department remit to the Respondent $500 of the $1,000 bond required to be posted in lieu of confiscation of 4,435 gallons of substandard gasoline. DONE and RECOMMENDED this 20th day of January, 1982, in Tallahassee, Florida. MICHAEL P. 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 20th day of January, 1982. COPIES FURNISHED: Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Jack G. Williams, Esquire Post Office Box 426 Panama City, Florida 32401
The Issue The question presented here concerns the Petitioner, State of Florida, Department of Agriculture and Consumer Services' Stop Sale Notice placed against Respondent, Pinner Oil Company under the alleged authority of Section 525.06, Florida Statutes (1980), by the process of requiring a refundable bond in the amount of $471.34, pending the outcome of this dispute in which it is contended that the Respondent supplied gasoline for sale which failed to comply with Rule Subsection 5F-2.01(1)(j), Florida Administrative Code, dealing with the allowed lead content in gasoline.
Findings Of Fact The Petitioner, State of Florida, Department of Agriculture and Consumer Services is an agency of government which has, among other responsibilities, the requirement to establish and enforce standards related to maximum allowable lead content in unleaded gasoline offered for sale to the general public. This regulation is designed to avoid the destruction of catalytic devices found in the exhaust systems of certain cars, in which the destruction of a catalyst would bring about problems, with the exhaust system causing its replacement and more importantly, lead to adverse effects on the environment due to an increase in undesired emission from the exhaust system. The Respondent, Pinner Oil Company of Cross City, Florida, is a jobber which supplies gasoline to retail outlets who in turn sales the gasoline to members of the motoring public. The facts reveal that on October 6, 1980, an official with the Petitioner made a routine inspection of the unleaded gasoline reservoir at the B. F. Goodrich-Texaco at 210 Rogers Boulevard, Chiefland, Florida, a customer of Pinner Oil Company. This gasoline was subsequently analyzed and on October 7, 1989, a Stop Sale Notice was served based upon a determination that the unleaded gasoline found in the reservoir at that station contained more than 0.05 grams of lead per U.S. gallon. The gasoline in question was provided to the B. F. Goodrich outlet by an employee of Pinner Oil Company as a part of his duties with the Respondent. In lieu of the total confiscation of the gasoline found in the reservoir tank at the station In question, the Respondent was allowed to post a refundable bond in the amount of $471.34 which represented the price for the number of gallons sold at a retail price since the time of the prior delivery to that station. (By Stipulation entered into between the parties, it was agreed that a finding of fact would be made to the effect that the Respondent, during the course of the last two years, had not been cited for a violation of the Florida Statutes pertaining to contaminated fuels.)
Findings Of Fact On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel. The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at 50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+. Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated. The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment. Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline. DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc. Post Office Box 1007 Tifton, Georgia
Findings Of Fact The Golden Lariat is a service station in the business of selling regular, regular unleaded, and unleaded premium gasoline to the public. Each type of gasoline is stored in separate underground tanks by the Golden Lariat at its place of business at the intersection of State Road 69 and Interstate 10 in Jackson County, Florida. On July 23, 1987, James Hall visited the station to do an unannounced routine inspection of the premises. When he pulled up in his vehicle, he saw a hose running from the unleaded regular tank to the unleaded premium tank. The hose was connected to a small pump which in turn was hooked to Respondent's 12 volt battery. The pump was not running at the time Mr. Hall conducted his inspection. In view of what he had witnessed, Mr. Hall decided to check the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Hall was particularly interested in the results the lab would obtain on the premium-unleaded gas. He took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline. The antiknock index or octane rating that the premium unleaded gasoline tested at was 88.6 or 2.4 units lower than departmental requirements. The premium unleaded should have had an octane rating of 91 or higher in order to meet departmental standards. The results strongly indicated that the unleaded premium had been mixed with a lower octane gas such as regular unleaded, thereby yielding a lower average octane rating for the premium unleaded. The regular unleaded gasoline had an octane rating of 87.3. When Mr. Hall questioned one of the owners of the Golden Lariat, Mr. Bowan, Mr. Bowan indicated he was pumping water with the pump. Mr. Hall testified that pumping water would not be unusual since the station had had problems with water infiltration into its gasoline storage tanks in the past. However, an owner would not pump water from one tank into another tank as was indicated by what Mr. Hall had seen. The evidence clearly establishes that the Golden Lariat intentionally mixed its unleaded premium with its unleaded regular gasoline. This was done in an attempt to sell an otherwise cheaper and lower grade gasoline to the consuming public compared to the gasoline the Golden Lariat represented the consumer was buying. In light of the above facts the Department elected to allow the Golden Lariat to post a $1,000 bond in lieu of confiscation of the 1,700 gallons of gas in the unleaded premium tank. The bond was posted on August 24, 1987, and the gasoline was subsequently removed. No evidence was presented by petitioner as to the amount of gasoline sold by respondent out of the unleaded premium gasoline tank. However, Respondent did not appear at the hearing after notice was mailed to him on March 22, 1988. The notice was mailed well in advance of the hearing and afforded Respondent adequate warning of the upcoming hearing. By failing to appear at the hearing after adequate notice, Respondent is deemed to have abandoned its claim to a refund; and therefore, Respondent is not entitled to a refund of any portion of the bond it posted in lieu of confiscation. Rule 22I-6.022, Florida Administrative Code.
Findings Of Fact On June 19, 1990, samples of leaded regular gasoline were taken from Chiefland Oil Company, a/k/a Grandma's Pantry ("Grandma's"), at two different locations in Chiefland, Florida. Analysis of these samples revealed that there was less than .01 percent lead additive in the product. In each instance, the Respondent accepted a $1,000.00 bond in lieu of confiscation of the product. Grandma's subsequently was cited for violation of the product labeling laws and noticed that the Respondent intended to assess a fine on this case for the lesser of the amount of the product sold at retail or $1,000.00. The notice of violation advised Grandma's of its right to a formal hearing on the allegations. Grandma's made a timely request for hearing and these cases resulted. At hearing, the Respondent admitted the allegations but stated in explanation that the offense arose during the changeover by manufacturers from leaded to unleaded regular gasoline. The dealer had attempted to contact the Respondent's local representative without success in an effort to determine how to handle this problem, which was common to all dealers at this time. In locations where it could, the dealer pumped the leaded gasoline out of the storage tanks and consolidated it in one tank at one station where it sold the product as leaded until the tank was almost empty and then added unleaded to the leaded gasoline until it met unleaded standards and then changed the labeling. The dealer was attempting to dilute leaded with unleaded gasoline but had not yet replaced the leaded labels with unleaded labels when the sample was taken. The dealer could not pump these tanks dry because of the nature of their construction. The gasoline tested met the octane requirements but did not contain the lead additives. The lead additives lubricate the valves of older cars designed to burn leaded fuels. Modern unleaded fuels do not provide such additives. The law prohibits the sale of leaded products as unleaded products imposing sizeable fines for this violation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent exercise discretion as requested by the dealer and return the two bonds in the amount of $1,000.00 each. DONE AND ENTERED this 5th day of December, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 5th day of December, 1990. COPIES FURNISHED: The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, FL 32399-0810 Mallory Horne, Esq. General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 Charles E. Lineberger Grandma's Pantry of Florida, Inc. P.O. Box 8189 Lakeland, FL 33802 Clinton H. Coulter, Jr., Esq. Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800
Findings Of Fact On June 3, 1982, William Cate, an inspector for Petitioner Department of Agriculture and Consumer Services, obtained a sample of the product identified as 500 Ethohol from a pump at the United 500 station owned by Respondent in Brooksville, Florida. The sample was shipped to Petitioner's laboratory in Tallahassee where it was analyzed under the supervision of John Whitton, Chief Bureau of Petroleum Inspection, using standard methods, and found to be in violation of Petitioner's Rule 5F-2.01(c)2 in that the 50 percent evaporated temperature of the product was 1580F which did not comply with the rule's requirement that such temperature not be less than 1700F. On June 11, 1982, a stop sale notice was issued against Respondent directing it to immediately stop the sale of the product listed below pending further instructions from Petitioner. Inspector Cate sealed the pump in question, and Respondent elected to post a $1,000 cash bond in order that he could return the product for upgrading in lieu of confiscation and sale. The stop sale notice was directed to 2475 gallons of the product which had a value of over $1,000. "Ethohol" is a blend of regular leaded gasoline which contains a percentage of alcohol, and sometimes is known as "gasohol." (Testimony of Cate, Whitton, Petitioner's Composite Exhibit 1) On June 14, 1982, Curtis E. Hardee, an inspector for Petitioner, took samples of 500 Ethohol from a pump located at Respondent's United 500 station at 6815 Sheldon Road, Tampa, Florida. The samples were sealed and shipped to Petitioner's laboratory in Tallahassee where they were analyzed under the supervision of John Whitton, Chief Bureau of Petroleum Inspection, and found to be in violation of Rule 5F-2.01(-1)(c)2, Florida Administrative Code, in that the 50 percent evaporated temperature of the product was l520F, and therefore violated the rule's requirement that such temperature not be less than l700F. A stop sale notice was issued against sale of the product on June 17, 1982, and Respondent elected to post a cash bond in lieu of confiscation or sale of 3,449 gallons of the product. The amount of the bond was $625 which represented 481 gallons of the product that had been sold since the last time a load of gas had been delivered to the station. Under the provisions of the release notice, Respondent agreed to pump the remaining product out of its storage tank and return it to their bulk plant for upgrading. (Testimony of Hardee, Whitton, Petitioner's Composite Exhibit 2) Although Respondent's representative did not dispute the foregoing facts, he maintained that forfeiture of the entire amount of the cash bonds would be excessive. (Testimony of McRae)
Recommendation It is recommended that a Final Order be issued assessing Respondent the sum of $625 to be effected by forfeiture of the bond posted in the same amount pursuant to stop sale notice issued on June 17, 1982 at Tampa, Florida, and that the $1,000 bond posted by Respondent to gain release of the gasoline product which was the subject of the stop sale notice of June 11, 1902 at Brooksville, Florida also be forfeited. DONE and ENTERED this 24th day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 T.D. McRae, President United Petroleum, Inc. 680 South May Avenue Brooksville, Florida 33512 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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 This case was presented for hearing based upon the request for formal Subsection 120.57(1), Florida Statutes, hearing, made by Arnold S. Rogers, President, One Stop Oil Company. The matters to be considered are as generally indicated in the Issues statement to this Recommended Order. The hearing was conducted on March 10, 1982. 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 1238 Broward Road, Jacksonville, Florida. On November 25, 1981, a sample of the petroleum product kerosene was taken at the aforementioned location operated by the Respondent, which is known as Station No. 10. A subsequent analysis on December 3, 1981, revealed a "flash point" of 78F. This reading was below the 100F minimum "flash point" as set forth in Rule Subsection 5F-2.01(2)(b), Florida Administrative Code. The results of the analysis were made known to the Respondent on December 3, 1981. Prior to that date, the Respondent was unaware of this reading below standard related to the "flash point." (A second kerosene sample was taken on December 3, 1981. That sample continued to reveal a "flash point" below 100F.) In view of the results of the November 25, 1981, test related to the kerosene at the Respondent's station, a "Stop Sale Notice" was issued to the Respondent. This was issued in keeping with Section 525.06, Florida Statutes (1980). In lieu of confiscation, a bond was posted in an approximate amount, $4,900.00. This bond amount had been prescribed by an employee for the Petitioner by mistake and subsequent to that time, all of the bond amount, with the exception of $1,000.00 was refunded to the Respondent. It is the $1,000.00 amount that remains in dispute at this time. In excess of 1,800 gallons of the contaminated kerosene had been sold prior to the discovery of this problem. The kerosene in the sample tank in question had been contaminated with gasoline and this combination lowered the "flash point." Kerosene with a low "flash point" is a hazardous substance, particularly when burned in kerosene stoves. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, makes it a violation to offer for sale kerosene which has a "flash point" of less than 100F. The Respondent offered and in fact did sell kerosene whose "flash point" was established to be 780F, and in the face of such action, violated the aforementioned Rule. This violation would subject the Respondent to the confiscation of the kerosene remaining in the tank in accordance with the penalty provisions set forth in Rule Subsection 5F-2.02 (2)(c) , Florida Administrative Code. In lieu of such confiscation, the Petitioner could accept a bond, not to exceed $1,000.00 which could be converted into a fine, in the face of a finding of a violation of the petroleum standards law. Respondent posted the $1,000.00 bond and that bond amount can be taken as a fine levied against the Respondent for the violation as found. The Petitioner being found in violation, the only matter to be determined is the proper amount of fine to be imposed. The Petitioner is of the persuasion that the full fine should be levied in view of the clear violation; the hazard posed by offering for sale and selling kerosene with a substandard "flash point," and the cost of prosecution to include appearances by consul and witnesses in Jacksonville, Florida, when counsel and those officials were required to travel from Tallahassee, Florida. Respondent, through its representative, detailed the steps that were taken to ensure against a violation of the "flash point" standards related to kerosene. The rendition of facts establishes that the tank in which the subject kerosene had been placed had immediately prior to that placement, contained unleaded premium gasoline. That gasoline had been pumped out; the tank tilted to allow the residue to collect in one confined area and the tank flushed out by water. The delivery tanker, which belonged to the Respondent and which delivered the kerosene, had been used to transport gasoline before that delivery; however, that tanker had been subjected to a purging to remove the gasoline. Respondent was unsure about the condition of the kerosene which had been sold to the Respondent by an outside source and transported by the Respondent's tanker, as this relates to a "flash point" violation prior to delivery. Notwithstanding the efforts by the Respondent to protect against such a violation of "flash point," Respondent concedes that as much as one quarter inch of gasoline residue could have remained in the storage tank at the time kerosene was offered for sale and sold. While Respondent recognizes that the violation established herein is one which does not require proof of "intent" in order to be found responsible for such violation, Respondent, nonetheless, asks that the fine be less than the full $1,000.00, particularly so in the face of the depressed market conditions related to its business. Finally, Respondent, in answering Petitioner's argument related to the cost of prosecution, states that it would have attended a hearing in Tallahassee, Florida, if necessary. Based upon a full consideration of the facts, conclusions of law and matters in aggravation and mitigation, it is RECOMMENDED: That a final order be entered finding the Respondent in violation of Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, and subjecting Respondent to the penalties set forth in Section 525.06, Florida Statutes (1980), and imposing a fine of $750.00, with $250.00 of the bond amount to be refunded to the Respondent. DONE and ENTERED this 19th day of March, 1982, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th March, 1982.
