Findings Of Fact The following findings of fact are based upon the stipulation of the parties and the evidence presented: During a routine inspection on June 11, 1986 at Ron's Chevron #4, 1790 North Hercules, Clearwater, Florida, samples of all grades of gasoline were taken. A sample was taken from each side of a pump labeled "Chevron Unleaded". Using a field method for measuring lead content, it was determined that both samples contained more than 0.11 grams of lead per gallon, which exceeds the standard of 0.05 grams per gallon. The results of the field measurement were confirmed at the Department's main laboratory by Nancy Fischer on June 16, 1986. A stop sale notice was issued on June 12, 1986, and the contaminated product was withheld from sale to the public. On June 17, 1986, Petitioner was required to post a bond in the amount of $1,000 in lieu of the Department confiscating 5,850 gallons of fuel. The product was released for sale as Chevron Regular, a leaded fuel. New product was placed in the tank and proved lead free. Lead in gasoline is detrimental to a car designed to run on unleaded fuel. The lead can cause serious damage to the emission system and possibly the engine by stopping up the catalytic converter. The parties stipulated that the sole issue in this case is the amount of the bond. There is no evidence that Petitioner intentionally contaminated the fuel for financial gain. The cause appears to have been carelessness at some point between, or at, wholesale and retail. The Department accepted a bond of $1,000 and allowed Petitioner to retain the fuel for relabeling and sale as leaded fuel. The Department's penalty imposed in this case is consistent with its past practice in factually similar cases.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order requiring Petitioner to post a $1,000 refundable bond. DONE AND ENTERED this 23rd day of October 1986 in Tallahassee, Florida. DONALD D. CONN 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 23rd day of October 1986. COPIES FURNISHED: Ronald Trimm Ron's Chevron #4 1790 North Hercules Clearwater, Florida 33515 William C. Harris, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. On January 15, 1980, Nick Pappas, a petroleum inspector with respondent's Division of Standards, took samples of regular and no lead gasoline from petitioner's station No. 582 located at 3130 Gulf to Bay Boulevard in Clearwater, Florida. An analysis of the samples was performed in the Tallahassee lab showing lead contents in the amount of 0.56 grams 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. A second sampling and analysis was performed approximately eleven days later because more gasoline had been dumped into the tank since the first sampling. Test results indicated essentially the same level of lead content in the unleaded gasoline. The respondent thereupon issued a "stop sale notice" on January 26, 1980, due to the high content of lead in the product. Tom Nestor, the station manager, was informed that he had several alternatives, including confiscation of the product, with the petitioner posting a bond in the amount of $1,000.00 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 January 28, 1980. Respondent received a bond in the amount of $1,000.00 from Petitioner, and this amount was deposited into the Gasoline Trust Fund. Tom Nestor admitted the truth of the above facts and admitted that he did not check the product after it was dumped into the tank. He stated that the driver of the delivery truck delivered the product to the wrong gasoline tank. According to Mr. Nestor, the tanks at his station were not properly marked at the time the delivery was made. The "premium" tank was being used to dispense "unleaded" gas, and the deliverer dumped "regular" gasoline into the "unleaded" tank.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request for a return of the cash bond be DENIED. Respectfully submitted and entered this 28th day of July, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301
The Issue The sole issue to be resolved in this proceeding is whether the materials commonly known as mineral spirits, xylene and naphtha fall within the definition of "petroleum product" in Section 376.301(10), F.S. The Department asserts that mineral spirits, xylene and naphthas are not "petroleum products" as that term is defined in the statute. If mineral spirits, xylene and naphthas are within the scope of the definition, then monies from the Inland Protection Trust Fund will be available under the EDI Program to fund a site sponsored clean up of Petitioner's property. If mineral spirits, xylene and naphtha are not within the scope of the definition, then Petitioner will be responsible for cleaning up the contamination emanating from its property. If Petitioner is financially unable to clean up the contamination, monies from the Water Quality Assurance Trust Fund would be available to clean up the site. In any case involving the expenditure of Water Quality Assurance Trust Fund money, it is the duty of the Department to seek cost recovery. Section 376.307, F.S. In order to decide whether the Department was correct in excluding mineral spirits, xylene and naphtha from the definition of petroleum product, I must determine whether the Department has construed the statute in a permissible way under Administrative Procedures Act disciplines. See Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1982). The standard of review in this case is whether the Department's interpretation of the statute, which it has been charged with the duty to administer, is within the range of possible interpretations. If it is, the Department's interpretation must be upheld. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984); Nelson, supra, at 858.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, to provide for the expeditious cleanup of property contaminated with petroleum or petroleum products. The Act recognizes the vulnerability of Florida's groundwater to contamination and provides several mechanisms by which cleanups of contamination resulting from the storage of petroleum and petroleum products may be funded. See sections 376.30(1), and 307.3071(a), F.S. The purpose of the SUPER Act cleanup programs is to avoid delays in cleanups resulting from litigation and determinations of liability. As part of the SUPER Act, the legislature created the program which is of direct relevance in this litigation. In Section 376.3071(9), the Early Detection Incentive (EDI) Program was created. That program provides for cleanups of sites contaminated with discharges from petroleum storage systems. The cleanups are to be conducted by the state at its expense, with no recourse for restitution of the costs against the site owner. In order to be eligible, one must have a discharge from a "petroleum storage system" which was reported to the Department after July 1, 1986, and before the termination of the incentive period. A "petroleum storage system," as that term is defined in Section 376.301(11), F.S., is a stationary tank with its integral piping and dispensing units which is used for the storage of petroleum product. In order to become eligible for participation in the EDI Program, a site must have been contaminated with "petroleum product." Owners of sites which are not eligible for participation in the EDI program must clean up their sites at their own expense, just as the owners of sites contaminated with a myriad of other pollutants not classified as "petroleum product" must do. Section 376.305(5), F.S. Reasons for EDI Program ineligibility can include the nature of the substance discharged, the statutory ineligibility criteria contained in Section 366.3071(9)(b)3, F.S., and the date of the discharge report. Section 376.3071(9), F.S. Petitioner, Commercial Coating Corporation, is a paint manufacturer located at 3501 N.W. 74th Street, Miami, Florida (T/77; P2). It primarily makes trade sales paint, commonly referred to as house paint, but also produces some specialized paints. (T/77-78). The petitioner's facility consists of eleven (11) underground tanks (T/37; P4). Two of the tanks contained mineral spirits (T/39,41), six of the tanks contained resins (T/42), one tank contained VM&P naphtha (T/42), and one tank was not in use. It is not known what the eleventh tank contained. VM&P naphtha is an acronym for Varnish Makers and Painters naphtha, which is commonly used as a solvent in paints and varnishes (D2 at p.51). As a result of a discharge from one or more of the tanks, Petitioner's site has become contaminated. The contamination consists primarily of mineral spirits, xylene and naphtha. (T/38-41; P22 at p.2-5). The only type of naphtha for which competent substantial evidence exists of storage at the site is VM&P naphtha. Other contaminants at the site include toluene, benzene, and ethyl benzene (T/39-40; P2 at p.2-5). The contamination was discovered on or about December 5, 1986 (P2). A consulting firm was hired and began assessment work at the site on December 22, 1986 (T/43). The results of the assessment were compiled on April 6, 1987 (P22). The Petitioner filed its EDI Program Notification Application on or about April 21, 1987 (P2). The application was denied by the Department on May 21, 1987. The basis of the denial was that mineral spirits, naphtha and xylene are not "petroleum products" as that term is used in Chapter 376, F.S. (P3). "Petroleum product" is defined in Section 376.3071(10), F.S., as follows: "Petroleum product" means any liquid fuel commodity made from petroleum, including, but not limited to, all forms of fuel known or sold as diesel fuel, kerosene, all forms of fuel known or sold as gasoline, and fuels containing a mixture of gasoline and other products, excluding liquefied petroleum gas and American Society for Testing and Materials (ASTM) grades no. 5 and no. 6 residual oils, bunker C residual oils, intermediate fuel oils (IFO) used for marine bunkering with a viscosity of 30 and higher, asphalt oils, and petrochemical feedstocks. Sites which are contaminated with substances other than "petroleum product" are ineligible to participate in the EDI Program. In determining whether mineral spirits, xylene and naphtha are petroleum products, it must first be determined whether they are a liquid, a fuel, and a commodity. Mineral spirits, xylene and naphtha are clearly liquids (T/57). As far as their physical composition, they are not dramatically different from gasoline. Mineral spirits and naphthas are distillates of crude petroleum oil and, in terms of boiling point, exhibit similarities to gasoline (T/52-54. They are also similar in terms of boiling point to "a variety of common solvents" (T/53). There is no evidence on the record regarding the boiling point of xylene or its physical nature. As will be discussed in greater detail herein, mineral spirits, xylene and naphthas are commonly classified as solvents. Pure mineral spirits, xylene and naphthas are, in the common usage of the term, commodities. The term commodity is defined as "anything useful or that can be turned to commercial or other advantage." The American Heritage Dictionary (1981). Mineral spirits is a common solvent which can be purchased at many retail establishments. Although there is no evidence on the record that pure xylene or naphtha is a commodity, it may be presumed that it has value. While pure, unadulterated mineral spirits have some value, there is no evidence on the record that "spent" mineral spirits have any value. "Spent" mineral spirits are mineral spirits which have become contaminated to the point they cannot be used for their intended purpose (T/74). There is no record foundation to support a finding that spent mineral spirits have any value or worth, or otherwise may be considered to be commodities. Had the legislature limited its definition of "petroleum product" to "any liquid commodity...," it is quite possible that mineral spirits, xylene and naphthas would fall within the ambit of the definition. However, the legislature did not limit its definition in that manner. In making the determination as to the types of materials to be covered under the SUPER Act, the legislature provided that the material must be a fuel. It is that condition which eliminates mineral spirits, xylene and naphthas from inclusion under SUPER Act. In establishing the type of materials which would be "petroleum products," the legislature provided that the term would include "liquid fuel commodities" including, but not limited to diesel fuel, kerosene and gasoline. Section 376.301(10), F.S. Diesel fuel is commonly recognized as a fuel which is burned in an engine or in industrial service. (T/70; D2 at pp.13). Kerosene is commonly recognized as a fuel commonly used for lighting and heating and as a fuel in internal combustion engines (T/70; D2 at p.27). Although kerosene may have some specialized use in the paint industry as a solvent (T/80), it is generally known as a "thin oil...used as a fuel" American Heritage Dictionary (1981). Gasoline is a fuel used as motor fuel and aviation fuel (T/70; D2 at p.21). The term "petroleum product" may, by the use of the inclusive term "including but not limited to...", include substances which are not identical to the listed substances but which are similar in terms of nature and use. Therefore, "petroleum product" may be construed to include products such as ASTM Grade No. 1 fuel oil (a kerosene type substance used as a fuel [T/70; D2 at p.20]); ASTM Grade No. 2 fuel oil (substantially equivalent to diesel fuel, T/70; D2 at p.20]); jet or turbo fuel (a kerosene type fuel [D2 at p.49]); and aviation gasoline (a high quality gasoline based fuel [T/53; D2 at p.5]). Each of these substances are commonly known and used as fuel, either for internal combustion engines, jet engines, industrial processes or for heating. Mineral spirits are a type of naphtha commonly recognized as a solvent rather than a fuel. In the Encyclopedia for Users of Petroleum Product, mineral spirits are defined as "naphthas... widely used as solvents or thinners in the manufacture of cleaning products, paints, lacquers, inks, and rubber. Also used uncompounded for cleaning metal and fabrics." (D2 at p.30). That definition was specifically determined to be an accurate representation of the nature and use of minerals spirits by Petitioner's expert witness (T/20-71). The use to which mineral spirits are put has also been commonly recognized as being "used extensively as a thinner for paints and varnishes." Webster's New International Dictionary, 2d Edition (1957). Of the mineral spirits stored at Petitioner's site, "99.9999" percent is used exclusively as a solvent (T/79). It is clear that from a petroleum context and a plain meaning context, mineral spirits are not thought of as fuels but rather as solvents. Naphthas are also commonly regarded as solvents. "Naphtha" is a very broad term which refers generally to a mixture of hydrocarbons (T/62). In the Handbook of Toxic and Hazardous Chemicals, naphthas are characterized and generally known "as organic solvents for dissolving or softening rubber, oils, greases, bituminous paints, varnishes, and plastics...." (D1 at p.477). That characterization was specifically found to be accurate by Petitioner's expert witness (T/67). In addition, VM&P Naphtha, which is the type of naphtha stored at Petitioner's site, is defined as "Varnish Makers and Painters Naphtha: term for a naphtha commonly used as a solvent in painting and varnishes." There is no evidence on the record that VM&P naphtha, or any naphtha other than that particular grade of naphtha known as mineral spirits, is ever burned for the production of energy. Therefore, Petitioner has not demonstrated that naphthas are ever used as a fuel. It is clear that from a petroleum and chemical context and a plain meaning context, naphtha is thought of as a solvent rather than a fuel. Xylene is commonly regarded as "any of three isomeric, colorless, oily hydrocarbons.... Commercial xylene is a mixture of the three and is used as a solvent." Webster's New International Dictionary (1957). "It is used as a solvent in the manufacture of synthetic rubber products, printing inks for textiles, coatings for paper and adhesives, and serves as a raw material in the chemical industry" (D2 at p.53). It is clear that in common use and in use from a petroleum sense, xylene is exclusively a solvent and is never used as a fuel. "Solvent" has been defined as a "compound with a strong capability to dissolve a given substance. The most common petroleum solvents are mineral spirits, xylene, toluene, hexane, heptane and naphthas" (D2 at p.44). Mineral spirits, naphthas and xylene are so universally regarded as solvents that they form the very definition of that term. The Department has a rational basis for construing the term "petroleum product" to mean those fuels which are of the same type as those enumerated. The types of fuels enumerated are $ those which, in the common and ordinary meaning of the terms, are used as fuels in engines, industrial processes and heating units. Other than for some minor usage as a component of outboard motor oil (T/62), the only use in which mineral spirits is burned is as charcoal lighter. There is no competent substantial evidence on the record which demonstrates any other use as a burnable substance. There is also no competent substantial evidence on the record that xylene or naphthas, particularly VM&P naphthas, are ever used as fuel, with the exception of approximately 0.00001 percent of the naphtha at Petitioner's site which was used at some time in a fork lift. Had the legislature intended for all flammable petroleum distillates to come within SUPER Act, it would simply have had to phrase its definition of "petroleum product" in that manner. It did not do so, and instead defined "petroleum product" through the commonly understood term "fuel" and used, as examples, three substances which are universally regarded as fuels. The use of mineral spirits as charcoal lighter is sufficiently different from uses of commonly regarded fuels to allow a permissible distinction to be made between those substances. In addition, there is no evidence that charcoal lighter is ever stored in a petroleum storage system. I find that the use of mineral spirit-type substances as charcoal lighter does not take away from the ordinary and commonly regarded use of mineral spirits as a solvent. It is clear that in its common meaning, and in its technical meaning, mineral spirits, xylene and naphtha are regarded as solvents and not fuels, notwithstanding the use of a mineral spirit-like petroleum distillate as charcoal lighter. An examination as to the nature of any use of mineral spirits as a fuel substance other than charcoal lighter demonstrates that it is dissimilar to commonly known fuels like diesel fuel, kerosene and gasoline. It was shown that it may be possible for certain waste materials, including "non-pure" or "distressed" mineral spirits to be used to fire industrial boilers. However, Petitioner has never used its spent or non-pure mineral spirits for any purposes other than paint manufacture (T/79-80). Mineral spirits which are "spent" have been contaminated to the point beyond which it cannot be used for its intended purpose (T/73-74). These non-pure waste materials meet the Federal definition for "spent material" in 40 CFR Section 2671.1(c)(1) which defines that term as "... any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing." Pursuant to 40 CFR 261.2(c)(2), "spent materials" are solid waste (even though physically, they are liquids) when they are burned to recover energy. Pursuant to 40 CFR Sections 261.20 and 261.21(a)(1), any solid waste which is a liquid and which has a flash point of less than 140 degrees Fahrenheit is a hazardous waste. Mineral spirits have a flash point of between 108 degrees and 132 degrees Fahrenheit (P23 at p.1). Therefore spent mineral spirits are hazardous wastes pursuant to Section 261 of the Code of Federal Regulations. The provisions of 40 CFR Section 2761, have been specifically adopted by the state in Florida Administrative Code Rule 17- 30.030. These spent solvent materials, when used as a fuel, are referred to as hazardous waste fuels and are burned as an alternative to disposal. 40 CFR Section 266.30. They may only be burned in specialized industrial furnaces and kilns. 40 CFR Sections 266.31, 366.35. These hazardous waste materials are not commonly known, bought or used as fuels in the same manner as diesel fuel, kerosene and gasoline. The legislature has established a statutory program for the regulation of hazardous wastes. See section 403.73 et seq. It is not realistic to conclude, in light of the specific regulatory program established for hazardous waste, that the legislature would include a potentially hazardous waste by implication as a fuel in the definition of petroleum product. Not only do the common, ordinary, and the technical meanings of the terms "mineral spirits,", "xylene" and "naphtha" demonstrate that those materials are not "liquid fuel commodities" similar in use to diesel fuel, kerosene and gasoline, but an examination of other related statutes confirms that mineral spirits, xylene and napthas are thought of by the legislature as something other than fuel. Of primary regard in this respect is the definition of "pollutant" in Section 376.301(12), F.S. Pursuant to the provisions of Section 376.307, sites contaminated with "pollutants", other than those subsequently defined as "petroleum" or "petroleum products" for purposes of the Inland Protection Trust Fund, may be cleaned up with monies from the Water Quality Assurance Trust Fund. The term "pollutants" is defined in Section 376.301(12) F.S. as "any `product' as defined in S.377.19(11), pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas". The term "product" in Section 377.19(11), F.S. is defined as follows: "Product" means any commodity made from oil or gas and includes refined crude oil, crude tops, topped crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural gas gasoline, naphtha, distillate, condensate, gasoline, waste oil, kerosene, benzine, wash oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, and blends or mixtures of two or more liquid products or byproducts derived from oil or gas, whether hereinabove enumerated or not. (e.s.) The legislature specifically listed "naphtha", and the related substance "benzine", under the definition of product along with fuels, i.e., gasoline, kerosene and fuel oil, and other non-fuel substances, i.e., residuum, waste oil, lubricating oil. Benzine is "used in the petrochemical industry as a chemical intermediate and reaction dilutent and in some applications as a solvent" (D2 at p.5). It is, from a chemical standpoint, often thought of as synonymous to "naphtha" (D1 at p.477). The legislature, by specifically listing naphtha under the definition of "product", evidenced the clear intent to treat it as a separate and distinct material. When the legislature uses certain language in one instance and wholly different language in another, it is presumed that the legislature meant for those terms to mean different things. 49 Fla. Jur. 2d Section 133. Had the legislature intended for naphthas and related solvents (with which mineral spirits may be grouped) to be included within the definition of "petroleum product" it would have specifically listed them as it did in the definition of "product." Based on the examination of the legislative treatment of mineral spirits and naphtha in related statutes, I find that the Department had a reasonable and rational basis for excluding mineral spirits and naphthas from the definition of "petroleum product". Also persuasive in determining the types of materials included in the Chapter 376 definition of "petroleum product" is an examination of the taxing statute which authorizes the taxing mechanism for the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund. Section 206.9935, F.S. (1986) provides that the Coastal Protection Trust Fund, the Water Quality Assurance Trust Fund and the Inland Protection Trust Fund may be funded by taxes imposed "for the privilege of producing in, importing into, or causing to be imported into this state pollutants for sale, use, or otherwise." Included within the definition of "pollutant" in Chapter 206, F.S., are "petroleum products." Mineral spirits are taxed as "petroleum products", as that term is defined in Section 206.9925, F.S., for purposes of funding both the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund (P20). A very important distinction was made by the legislature between the definition of "petroleum product" in Chapter 376, F.S., and the definition of "petroleum product" for purposes of the taxing statute, Chapter 206, F.S. Unlike the legislative emphasis of fuels in the Chapter 376 definition, Chapter 206, F.S. defines "petroleum product" as: Any refined liquid commodity made wholly or partially from oil or gas, or byproducts derived from oil or gas, or blends or mixtures of two or more liquid products or byproducts derived from oil or gas, and includes, but is not limited to, motor gasoline, gasohol, aviation gasoline, naphtha-type jet fuel, kerosene-type jet fuel, kerosene, distillate fuel oil, residual fuel oil, naphtha or less than 400 degrees Fahrenheit for petroleum feed, special naphthas, road oils, still gas, unfinished oils, motor gas blending components, and aviation gas blending components. The legislative emphasis in this definition is not whether the material is a fuel, but whether it is refined. Mineral spirits are taxed as special naphthas (P20). The reason mineral spirits are taxed is not because it is a fuel, but because it is refined. The proceeds from the tax on mineral spirits goes into both the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund (P20). Due to the definition of "pollutant" in Chapter 376, F.S., funds from the Water Quality Assurance Trust Fund may be used to clean up solvents such as mineral spirits and naphtha. Because those materials are commonly regarded as solvents rather than fuels, the Inland Protection Trust Fund is not available as a source of cleanup funds. There is no inconsistency in the Department of Revenue including mineral spirits and naphthas as refined liquid commodities and therefore as "petroleum product" under Chapter 206, F.S., and the Department of Environmental Regulation excluding mineral spirits and naphthas as liquid fuel commodities and therefore as "petroleum products" under Chapter 376, F.S. It is recognized that the taxing provision of Chapter 206 and the cleanup provisions of Chapter 376, both of which deal with various aspects of the Inland Protection Trust Fund and the Water Quality Assurance Trust Fund, should be read in pari materia. See, Ferguson v. State, 377 So.2d 709 (Fla. 1979). In construing statues in pari materia, the statutes should be construed together and in a manner which will avoid absurd results. Moore v. State, 343 So.2d 601 (Fla. 1977). In this case, the Department's construction of its statute does not lead to an absurd result. Mineral spirits, although not eligible for one fund for which they are taxed, are eligible for the other. While it may be argued that it would have been wiser or more equitable to the storers of mineral spirits to have allowed them the benefits of the Inland Protection Trust fund, rather than limit their use to the Water Quality Assurance Trust Fund, it is not the province of this Hearing Officer to make that determination. Had the legislature intended for these terms, which are set forth in the same Act, to have the same meaning, it would have used the same language. Also relevant in determining the substances which the legislature regards as fuels are the other statutory provisions which utilize that term Chapter 206, Parts I, II and III, F.S., speak respectively to motor fuels, special fuels and aviation fuels. A review of those definitions clearly indicates that mineral spirits and naphthas are not considered to be fuel. The related statutes, e.g., Chapter 212, Part II, F.S., which deals with the tax on the sale of motor fuel and special fuels, and Chapter 527, Part I, which deals with the sale of liquid fuels, do not specifically deal with naphthas of any kind and it is clear from a review of those statutes that they did not include mineral spirits, xylene and naphthas by implication. A review of the relevant statutory provisions demonstrates that the legislature does not consider mineral spirits, xylene and naphthas to be fuels. The Department's determination that mineral spirits and naphthas are not "petroleum products" since they are not fuels has a reasonable and rational basis. Also relevant in determining the meaning to be given a statutory term is the legislative history. The term under consideration here is "petroleum product". In order to determine what was meant by that term, one may examine the legislative history, including committee reports, and the conditions existing in the state at the time of enactment. 49 Fla. Jur. 2d, Statutes, Sections 159-160. The evidence on the record reveals that immediately prior to the passage of the SUPER Act, there was a proliferation of leaking underground gasoline storage tanks around the state. These incidences of contamination were increasing and, due to the volume of leaking gasoline tanks, the ability of the Department to adequately address them was being threatened (T/92-93). The number of sites contaminated with gasoline and contaminants from service station sites grew from "a few" in 1983, to 300 in spring of 1986 to almost 700 by the time the bill passed in June 1986 (T/92-93). The primary and most obvious environmental concern at the time of the passage of the SUPER Act was the volume of fuel spills from service stations, and the inability of the Department to deal with the volume of incidents (T/93). An examination of the staff analyses of the draft Act by the Senate confirms that materials such as gasoline, diesel fuel, kerosene and similar retail fuels were the only; materials contemplated or intended by the legislature for inclusion in the Act. Importantly, the reports go through the bill, section by section, and describe the contents of each section as it existed on the date of the report. The last report was prepared on April 29, 1986. The bill was approved on June 26, 1986. See, Chapter 86-159, Laws of Florida. The analysis of the meaning of the report is limited by the failure to include a copy of the draft bill which was being analyzed by the committee staff. Without the draft bill, it is difficult to determine the draft language which was before the legislature at the time of the report. However, some insight into the language being analyzed may be gleaned by looking at the language used in the report. In Section 6 of the reports, the definitions which ultimately appear in SUPER Act are discussed. The definitions given in the report for "facility", "petroleum", "petroleum storage system", "response action", and "response action contractor" are virtually the same as they ultimately appeared in the final Act. In contrast, a very significant change from the final language appears in the draft bill analysis of the definition of "petroleum product." It may be presumed from the dramatic change in that definition that the language was amended from the time of the last report's preparation in April to the time the bill was passed in June. The report lists the definition of "petroleum product" in the draft bill as "aviation gasoline and fuels, jet fuel, motor fuel, distillate oils and kerosene." Each of those terms except distillate oils is adequately covered by the final definition of "petroleum product" as passed. The exclusion of the term "distillate oils" from the final version of the Act clearly indicates that some distillates of crude oil would not be covered under SUPER Act. Also contained in the reports are analyses of the conditions leading to the passage of the Act. The report refers to incidences of discovery of contamination through smelling gasoline in groundwater. The report references the Department's regulatory program for tanks which requires compliance with certain standards. It is important to note that the Department's tank regulation program, as established in Chapter 17G-1, F.A.C., only applies to vehicular fuels, i.e., diesel fuel, kerosene, and gasoline. Rule 17-61.040, Florida Administrative Code. The report also references the fact that many of the problems which justified passage of the SUPER Act were the result of improper installation of "fuel oil and gasoline piping, tanks and pumps". (e.s.)(P22(a)(b) and (c) at p.2). The conditions existing in Florida at the time of the passage of SUPER Act and the legislative history of SUPER Act indicate that the primary purpose of the Act was to alleviate problems associated with the storage of gasoline, kerosene and diesel fuel. I find that based upon the conditions in the state and the legislative history of the Act, the Department had a reasonable and rational basis for the exclusion of solvents such as mineral spirits and naphtha from the definition of "petroleum product." In summary, I find that the Department has demonstrated that mineral spirits and naphtha, particularly VM&P naphtha, are commonly regarded not as fuels, but as solvents. The fact that these solvents may be classified as "refined liquid commodities" for purposes of the taxing statute is not inconsistent with their failure to be classified as "liquid fuel commodities, for purposes of the cleanup statute, particularly when they are eligible under the other tax and cleanup fund, the Water Quality Assurance Trust Fund. From a physical standpoint, these solvents, since they are petroleum distillates, are not greatly physically different from materials which are ordinarily regarded as fuels. However, the legislature chose to condition its definition of petroleum product on the common use of the product as a fuel. It is not the function of the undersigned hearing officer to question the wisdom of the legislature's enactments, but rather to determine if the Department has construed the enactment in a permissible manner. Given the totality of the circumstances, as such, I find the Department's interpretation of petroleum and petroleum product as excluding mineral spirits, naphthas and other solvents to be permissible and within its authority.
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 substances known as mineral spirits and naphtha be found not to be "petroleum products" within the scope of Section 376.301(10), F.S., and that the Petitioner, Commercial Coating Corporation, be determined to be ineligible for participation in the Early Detection Incentive Program. RECOMMENDED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 13th day of July, 1988. COPIES FURNISHED: Richard A. Pettigrew, Esquire Luis R. Figeredo, Esquire 5300 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact At a routine inspection conducted on December 27, 1978 at Suncoast's Fine Station 45 at 825 49th Street, St. Petersburg, Florida, a sample of gasoline taken from the unleaded pump was returned to the mobile laboratory for testing. This test showed the lead content to exceed .110 grams per gallon. A stop sale order was placed on the pump from which the sample was taken and the sample was forwarded to Tallahassee for further testing to ascertain the exact lead content. The laboratory test conducted at Tallahassee showed the sample to have a lead content of .312 grams per gallon. In lieu of having the gasoline, on which the stop sale order was entered, confiscated, Respondent posted a bond in the amount of $1007.68 and the gasoline was released to be sold as regular gasoline. At the time the stop sale was placed on the tank it was determined that some 1441 gallons of excess lead gasoline had been sold from this tank since the tank was last filled. In lieu of confiscating the remainder of the gasoline in this tank, Petitioner was given the option of posting a bond in the amount of $1007.68, which represented the retail price of the gasoline sold from that tank. It is the forfeiture of this bond which Petitioner is contesting, and no evidence was submitted by Petitioner why the bond should not be forfeited.
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
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 January 14, 1981, Normandy Texaco received a load of product consisting of 4,900 gallons of regular, 1,500 gallons of hi-test unleaded, and 2,350 gallons of regular unleaded gasolines. Samples were taken on January 16, and by report issued on January 23 the hi-test unleaded tested at 88.4 octane. This is 2.6 octane less than the registered octane level of 91.0. A stop-sale Notice was issued on January 23. After posting a bond in the amount of $1,000.00, the hi-test gasoline was released to Normandy Texaco, and pumped into the regular unleaded tank on January 27. Mr. Obi made a claim with Texaco, Inc., whose tanker delivered the gasoline, for mis-delivery by cross pumping the product into his tanks. This claim was settled by payment of $36.16 to Obi by Texaco. These facts are not disputed by the parties.
Recommendation Based upon the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED that the Petition of William J. Obi for return of the $1,000.00 bond posted in lieu of confiscation of substandard unleaded gasoline, be denied. THIS RECOMMENDED ORDER entered on this 2nd day of April, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1981. COPIES FURNISHED: Mr. William John Obi 1766 Jones Road Jacksonville, Florida 32220 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301
The Issue Whether the fuel in question was contaminated.
Findings Of Fact Lawrence Oil Company, doing business as Lyles Pit Stop, applied for and received approval to sell unleaded premium gasoline under the brand name "Rex Premium." It was determined during a routine inspection and testing of "Rex Premium" that this gasoline contained more than three grams per gallon of lead, sufficient lead to qualify as a leaded premium. See Report, Exhibit 1. The Department of Agriculture and Lawrence Oil Company entered into an agreement under which Lawrence Oil paid a $1,000 bond, and the gasoline in question was released by the Department to be sold under the Department's supervision in accordance with its lead content.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the $1,000 bond previously posted be forfeited and no further action be taken. DONE and ORDERED this 4th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leslie McLeod, Jr., Esquire Assistant General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Alfred C. Vittorino General Manager, Marketing and Retail Lawrence Oil Company 7950 M 58th Street Miami, Florida 33166
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
