Findings Of Fact 1. On January 13, 1975, 6500 gallons of gasoline was stop-saled by the Petitioner under the authority of Section 525.06, Florida Statutes. That section gives the Petitioner the right to confiscate and sell substandard gasoline. In lieu of having its gasoline confiscated, the Respondent previously posted a $2700 bond which prevented its retail outlet from being closed while confiscation proceedings would have been held. This hearing was convened to consider whether said bond should be` confiscated. At this hearing it was announced that there were no substantial disputes of material fact and that the Respondent admitted that said gasoline had been substandard. It was agreed among the parties that the Respondent should pay unto the Department of Agriculture and Consumer Services a sum in the amount of $908.54, which represented the amount of substandard gasoline which had been sold by the Respondent before the quality of its gasoline was discovered. It was not alleged that the cause of the substandard product was intentional on the part of the Respondent and it was assumed that negligence or lack of care on the part of the Respondent was the reason for this contamination.
Recommendation It is, therefore, recommended that the Petitioner in settlement of this matter retain the amount of .$908.54 from the $2700.00 bond that was posted by the Respondent. DONE and ORDERED this 20th day of August, 1975, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Albert H. Stephens, Esquire 125 South Gadsden Street Tallahassee, Florida Attorney for Respondent Robert Chastain, Esquire General Counsel Florida Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32304 Attorney for Petitioner
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 February 16, 1981, John Flanagan, a Graduate Chemist and Inspector for the Petitioner, Department of Agriculture and Consumer Services, (hereafter "Department") took a gasoline sample (R-247) from an unleaded pump identified as 45321" at the June Avenue Service Station, 1109 West U.S. 98, Panama City, Florida. This sample was field tested and then forwarded to the lab in Tallahassee where it was again tested on February 20, 1981 and found to be contaminated with leaded gasoline. (Testimony of Whitton, Flanagan, Petitioner's Composite Exhibit 1). As a result of the field test the Department issued a stop sale notice to Mr. Al Barry on February 16, 1981. The laboratory analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials ("ASTN") for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 0.088 gram of lead per gallon and therefore violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. 4 The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of the remaining 1,600 gallons of illegal gasoline for sale as leaded regular. The Respondent has no knowledge as to how the unleaded gasoline was contaminated. The gasoline was purchased from the Hill Petroleum Company and supplied by the Respondent to the June Avenue Service Station as unleaded gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its 1,000 bond which was required to be posted in lieu of confiscation of approximately 1,600 gallons of contaminated unleaded gasoline. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: Les McLeod, Esquire Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 William D. Dickens Dickens Oil Company 1706 Maple Avenue Panama City, Florida 32405 John Whitton, Chief Bureau of Petroleum Inspection Division of Standards Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner, the State of Florida, Department of Agriculture and Consumer Services, is an agency of state government charged, among other responsibilities, with establishing and enforcing standards related to quality of motor fuels, as pertinent hereto, the standard for volatility contained in Rule 5F-2.01(1)(c) 2, Florida Administrative Code. The Petitioner has charged that the Respondent has technically not met this standard with fuel sold at the two stores, one in Tampa and one in Winter Haven, Florida, because the subject product (which contained ethanol) does not comply with that standard which states that the fuel should be 50 percent evaporated at a temperature of not less that 1700. There is no dispute that the fuel involved did not meet this standard because it was ethanol enriched and was intended to be sold as such by the Respondent. The notice of stop sale was filed herein because this product, which did not comply with the standard for regular or unleaded gasoline, was not labeled to disclose that it was other than unleaded gasoline, that is gasoline containing ethanol. The Petitioner however withdrew its allegation that "super unleaded gasoline" enriched with ethanol was sold in an unlabeled fashion. The Respondent is a corporation authorized to do business in Florida, headquartered in Dallas, Texas. It recently elected to convert many of its gasoline outlets to sell ethanol enriched gasoline, which is characterized by a higher per gallon profit-margin and a higher octane than regular unleaded gasoline. Thus, a memorandum was sent from the Respondent's home office in Dallas, Texas, to all the Respondent's district managers and zone managers providing them with detailed instructions for conversion of stations from selling non-enriched unleaded gasoline to ethanol enriched gasoline, including detailed instructions on preventing adulteration by water in underground tanks, as well as detailed instructions regarding proper labeling and disclosure of the contents of the new type fuel to consumers. Some 130 retail outlets in Florida were converted to sell the ethanol product and booklets were published and distributed to be provided to customers to explain the characteristics of the ethanol fuel to customers. There is no dispute that a good faith effort was consistently followed to adequately disclose the characteristics of the fuel to customers and to properly label the pumps. The Respondent's Tampa store converted to ethanol product on March 26, 1983, and received its first load of ethanol enriched gasoline that day. It was cited or notified to stop sale by the Petitioner on March 29, 1983, because the pumps through which the product was dispensed were mislabeled. The parties agree that this was due to a communication failure between the regional office in Orlando and that station and that the clerk at that Tampa store simply did not get notified to change the labeling on the pumps before the Petitioner observed the violation some two days later and ordered sale of the product stopped. A similar situation is true of the Winter Haven retail outlet which sold ethanol enriched products without disclosure labeling on the pumps. In this instance the labeling had been placed on the pumps, but had been torn off by person unknown and the notice to stop sale was issued against the Respondent with regard to that store before new labeling could be properly placed on the pumps. There is no question, and indeed the parties have stipulated, that the two violations which occurred were inadvertent, and due, with regard to the Tampa instance, to a lack of communication between the Respondent's regional management office and the retail outlet involved, such that proper labeling did not get placed on the pumps timely. With regard to the Winter Haven facility, there is no dispute that the labeling was timely and properly done when the first load of fuel was placed in the underground tanks for sale, but that persons unknown wrongfully removed the labeling. There is no evidence to establish that any such violations have been committed by the Respondent in the past. There is no question that enough of the product was sold to the public to exceed the $1,000 bond posted in lieu of confiscation. It was also established that the violations were inadvertent and were not perpetrated through any intent or scheme to defraud the consuming public.
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 $250 of the $1,000 bond posted and that the remaining $750 be returned to the Respondent. DONE and ENTERED this 28th day of October, 1983, 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 28th day of October, 1983. COPIES FURNISHED: Frank Graham, Esquire Department of Agriculture Mayo Building Tallahassee, Florida 32301 Debbie Hunn, Esquire 5500 Diplomat Circle Suite 105 Orlando, Florida 32810 The Honorable Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301
The Issue Whether the assessment of $767.27 as a bond was proper.
Findings Of Fact On May 21, 1986, the samples of fuel were taken at Hicks' Gulf Station, U.S. 19 South and Hicks' Gulf Station, U.S. 19 North in Perry, Florida. Using ASTM D86, it was determined that the samples of Good Gulf regular leaded gasoline taken at the Hicks' Service Stations contained contaminants that caused their evaporative end points to exceed 437/0F, the acceptable maximum set by Florida Statute and Rule 5F-2.01, Florida Administrative Code. These results were confirmed at the main laboratory in Tallahassee on June 5, 1986. Stop sales notices were issued on May 21, 1986. On May 23, 1986, a bond of $767.27 was posted by Morris Petroleum, Inc., in lieu of the Department confiscating 1,754 gallons of the contaminated fuel. Delivery and sales records allowed the Department to determine that 791 gallons of contaminated fuel had been sold to the public at the two stations at 97 per gallon since the last delivery from the wholesaler. Nancy Fischer, chemist for the Department of Agriculture and Consumer Services, testified regarding the Department policy. The Department tests motor fuels at terminals and wholesalers. However, the Department does not levy fines against wholesalers and terminals. In cases where fuels being held by terminals and wholesalers are found to be contaminated, the Department issues a stop sale order. When establishing the amount of bond to be paid by a retailer for contaminated fuel, the Department uniformly bases the bond on the retail value of the substandard product sold to retail customers at the retail price. The Respondent, Morris Petroleum, Inc., is a wholesale distributor of motor fuels. Morris Petroleum sold the motor fuels in question in this case for 81.5 per gallon to Hicks' Service Stations in Perry, Florida. It is common practice for wholesalers to pay the bonds levied against retailers in order to maintain the business of the retailers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department be affirmed and the bond of $767.27 be retained. DONE and ORDERED this 1st day of December 1986 in Tallahassee, Florida. STEPHEN F. DEAN 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 1st day of December 1986. COPIES FURNISHED: William C. Harris, Esquire Senior Attorney Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32301 John M. Morris, Jr. Morris Petroleum, Inc. Post Office Box 495 Monticello, Florida 32344 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301
Findings Of Fact On October 6, 1987, a petroleum inspector from the Department of Agriculture and Consumer Services conducted a routine inspection of the gas pumps at Balm Grocery at Balm, Florida. When a sample was taken from the Chevron unleaded, the inspector immediately noticed an unusual color for unleaded gasoline. A subsequent analysis of this sample showed the sample contained 3.3 grams of lead per gallon. Upon receipt of the lab report, the inspector placed a stop sale order on the pump and locked the pump. Shortly thereafter, the owner of Balm Grocery posted a bond of $1000 to get the stop sale lifted and commenced selling gas from this tank as leaded gasoline. Prior to the stop sale posted on this pump, more than 1000 gallons of polluted gasoline had been sold by Respondent as unleaded plus gasoline.
The Issue The issue here presented concerns an alleged violation of Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code, related to the permissible ten percent (10 percent) evaporated temperature for which gasoline shall not exceed 140F, and penalties to be imposed for such violations, in keeping with Section 525.06, Florida Statutes (1980), and Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980). The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 3411 U.S. 19 North, Pasco County, Tarpon Springs, Florida. On November 23, 1981, a sample of the petroleum product, super unleaded gasoline (which was offered for sale) was taken from the Respondent's facility as indicated above. A subsequent analysis of that product by Petitioner's mobile laboratory revealed that the ten percent (10 percent) evaporated temperature was 153F. This reading exceeded the ten percent (10 percent) evaporated temperature of 140F as set forth in Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code. Petitioner's inspector, Jamie Gillespie, advised Respondent's agent that the premium unleaded gasoline was illegal due to its "stale" condition and the Respondent was given an option of either confiscation of the product or posting of a bond. The product is presently under a Stop Sale Notice and is under seal. (Petitioner's Composite Exhibit No. 1.) A subsequent analysis by Petitioner's laboratory in Tallahassee revealed that the evaporation level of the product was found to be approximately 163F. Ben Bowen, Petitioner's Assistant Bureau Chief in charge of petroleum inspection, indicates that the discrepancy in the evaporation levels as analyzed by the two laboratories was most probably due to the seal which was on the product and the approximate seven (7) day delay in the transfer of the product from Tarpon Springs to the laboratory in Tallahassee. Respondent's supervisor, Mark Ordway, 1/ was shown how the product could possibly become stale due to a "venting" problem from the roof of the storage tank where the product was stored. Sam Puleo, a lab technologist employed in Petitioner's mobile laboratory, analyzed the sample of the product taken from Respondent's facility. According to Mr. Puleo, "stale" products such as that taken from Respondent's tanks would make it difficult to start an automobile engine.
The Issue The issue here presented concerns the alleged violation of Rule Subsection 5F-2.01(1)(j) , Florida Administrative Code, related to allowable amounts of lead per gallon in gasoline which is dispensed under the distinctive name "Unleaded Gasoline." This alleged violation of the Rule potentially subjects the Respondent to the penalty set forth in Section 525.06, Florida Statutes (1980). The particular facts of this allegation are that on September 15, 1981, a sample of gasoline from the pump at the Respondent's station marked "Unleaded Premium Gasoline" was extracted and a test conducted revealing .31 grams per gallon of lead content and a further test was conducted on September 25, 1981, at the same station and pump revealing .23 grams of lead per gallon, in violation of the maximum allowable .05 grams per gallon. FINDINGS OF FACT 1/ This case was presented for hearing based upon the request for a formal Subsection 120.57(1), Florida Statutes, hearing, made by the Respondent, Emmett C. Wever. The matters to be considered are as set forth in the Issues provision of this Recommended Order. The hearing was conducted on December 14, 1981, in keeping with the Respondent's request. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State Government which has the obligation of gasoline and oil inspection pursuant to the provisions of Chapter 525, Florida Statutes. The Respondent is the proprietor of a station which dispenses gasoline, at 1204 Ocean Shore Boulevard, Ormond Beach, Florida. On September 15, 1981, an employee of the Petitioner made a check of the unleaded premium gasoline pump from which the Respondent had been selling that product. The sample extracted was analyzed on September 22, 1981, and this analysis revealed a lead content in the sample of .31 grams of lead per gallon. The results of that report were made known to the Petitioner's employee on September 25, 1981, and a further check of the aforementioned gasoline pump was made on that same date. Subsequent testing of that sample revealed .23 grams of lead per gallon. In the face of these revelations of lead content in the gasoline, a Stop Sale Notice was given to the station owner. The effect of the Stop Sale Notice would allow the confiscation of gasoline remaining in the unleaded premium tank at the Respondent's station or in lieu of the posting of a bond, not to exceed $1,000.00. The Respondent elected to post a bond of $953.30 which was equal to the 657 gallons which had been dispensed from the subject gas pump during the questioned period. The Respondent was allowed to sell the remaining 1,046 gallons in the tank, which was associated with the gasoline pump, as regular gasoline. Excessive lead, when introduced into those automobiles which are required to use unleaded gasoline, can damage the catalytic converter, and it is estimated that this damage would occur after burning approximately five (5) tanks of contaminated unleaded gasoline. In addition, lead in the fuel tends to foul the engine. There was no showing in the course of the hearing that the Respondent had knowledge of the lead content discovered on September 15 and 25, 1981, which amounts were in excess of the standards set forth in Rule Subsection 5F- 2.01(1)(j), Florida Administrative Code, calling for no more than .05 grams of lead per gallon in gasoline sold as unleaded fuel.
Findings Of Fact On July 6, 1982, Jimmy Haywood Nixon, an employee off petitioner, took a sample of gasohol offered for sale as "super unleaded ethanol enriched" (by pumping it through a nozzle) at the 7-11 food store, 111 West Burgess Road, Pensacola. He delivered the sample to Pat Flanagan, a chemist with petitioner's mobile lab No. 2. According to Mr. Flanagan, there was a third again too much alcohol in the mixture. He was of the opinion that the high alcohol content accounted for the low (1590F.) "50 percent evaporated temperature." Being advised by Mr. Flanagan that the gasohol was nonstandard, Mr. Nixon returned on July 7, 1982, to lock the pump. Later that day, after posting bond, respondent's Mr. Cooper tried to figure out how much unleaded gasoline to add to the 4,589 gallons in the 7-11 tank in order to reduce the fraction of alcohol to one-tenth. To this end, samples taken, not from the nozzle, but from deep in the tank were analyzed. Mr. Flanagan performed the same procedure on the tank sample as he had run on the nozzle sample. He added dyed ethylene glycol to the sample, shook the mixture and waited for it to stratify. Then he measured the amount by which the dyed layer had grown. This increment was assumed to be pure alcohol. The tank sample test indicated that the mixture was 12.3 percent alcohol, a full point less than the nozzle sample's ethanol component. The difference is presumably attributable to slight stratification in the tank. Mr. Cooper also performed a test. This test employed the same methodology as Mr. Flanagan's test, but the reagent was distilled water rather than ethylene glycol, and the result was 9.8 or 9.9 percent alcohol. It may be that additives other than ethanol dissolved in the ethylene glycol. On July 9, 1982, Mr. Cooper arrived in a compartmented truck with an empty chamber for blending, 100 gallons of alcohol, and 1500 gallons of unleaded gasoline. He added 1300 gallons of unleaded gasoline to the tank and blended the mixture. This resulted in 5889 gallons that tested at 7.5 percent alcohol, so all 100 gallons of alcohol were added. The resulting mixture tested at 9.167 percent alcohol.
Recommendation This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 29, 1982. Respondent was unrepresented at the hearing, but Mr. Donald P. Robinson, respondent's treasurer, was oresent and was, without objection, called as a hearing officer's witness. Petitioner was represented by counsel: Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32301 In order to secure the release of certain gasohol, respondent posted a thousand dollar ($1,000.00) bond and petitioner withdrew its stop sale notice. The issues are whether the gasohol was nonstandard when impounded and what disposition to make of the bond respondent posted.
